An attorney is suing me in small claims for fees

[J.phlps]

Jurisdiction

California

An attorney is suing me in small claims for fees, but the evidence I would need to defend myself would undermine another case that's going on, for which I'm currently in pro per. The case in the general court system is, in fact, the one for which I had hired the attorney suing me in small claims.

Is there a way to get the small claims case dismissed based on this fact? I know evidence isn't kept by the court for long, but it's kept for a long enough time before the hearing that the adverse party in the general court claim could and will easily get a hold of it. Thank you.

 

[Zigner]

No, you can't get a case dismissed just because your evidences inconveniences you.

 

[adjusterjack]

Is there a way to get the small claims case dismissed based on this fact?

Sure.

You can pay the attorney what he says you owe him and then move forward with your other case.

Depends on what's more important to you. You're other case or not paying the attorney.

 

[J.phlps]

No, you can't get a case dismissed just because your evidences inconveniences you.

Yes, I get this. But what if by suing me and forcing me to submit certain evidence they're undermining the very goals they were supposed to accomplish?

 

[adjusterjack]

No idea.

You haven't provided any details that would allow any useful comments.

 

[welkin]

Do what uncle Sam does. Redact everything and then submit it. Then rely on your verbal testimony in court.

 

[Tax Counsel]

Do what uncle Sam does. Redact everything and then submit it. Then rely on your verbal testimony in court.

The federal government only redacts from discovery those things that the law or the court requires. It does not blank out everything in a document unless the entire document is classified or privileged. The government won't even bother to submit an entirely redacted document as its own evidence becase a document with no relevant information on it is worthless for the government's case.

The OP is asking about using the document as evidence in the OP's favor fears that would be useful to the adverse party in another claim. Under the rules of evidence for most courts when a document is offered for evidence by one side that is not complete the opposing side has the right to ask for the entire document to be submitted, not just the parts that favor the party offering it. Courts generally will uphold that request except that any information protected by law will generally be permitted to be redacted.

That means the OP is likely left with the following choice: offer the entire document as evidence or simply leave it out and hope that the OP may offer testimony about it. Submitting as evidence for your case a document that you heavily redact yourself when the redacted material is not protected by law is pretty much going to be a waste of time. In small claims court the judge is likely to simply rule the entire thing as inadmissible unless none of it is redacted. It becomes a particularly acute dilemma if the parts that the OP needs to win against the lawyer are the very parts the OP wants to keep from the opponent in the other case.

Redaction of the very parts you need to use is a worthless endeavor. The OP can't have it both ways. Either use it or not. But I suspect the half measure of redacting a bunch of material from it and getting the rest admitted isn't going be an option.

 

[zddoodah]

the evidence I would need to defend myself would undermine another case that's going on, for which I'm currently in pro per.

What is the nature of the evidence, and how would it's production in a small claims trial undermine your other case?

Is there a way to get the small claims case dismissed based on this fact?

No.

I know evidence isn't kept by the court for long, but it's kept for a long enough time before the hearing that the adverse party in the general court claim could and will easily get a hold of it.

How exactly do you think that might happen? For that matter, how would your adversary even know about the small claims action?

When you submit evidence in a small claims case, one of two things typically happens: (1) you hand it to the bailiff, who hands it to the judge, who looks at it and then hands it back to the bailiff who hands it back to you; or (2) the judge holds on to it to review it in chambers and then returns it to you (or, if the judge needs to take the matter under submission, the clerk will inform you to pick up the evidence after the judge has finished considering the matter). The evidence generally does not become part of the public record.

Answer my questions (and also say which county(ies) your cases are in), and I may be able to provide more input.

what if by suing me and forcing me to submit certain evidence they're undermining the very goals they were supposed to accomplish?

This is a meaningless question in the abstract.

 

[J.phlps]

What is the nature of the evidence, and how would it's production in a small claims trial undermine your other case?




No.




How exactly do you think that might happen? For that matter, how would your adversary even know about the small claims action?

When you submit evidence in a small claims case, one of two things typically happens: (1) you hand it to the bailiff, who hands it to the judge, who looks at it and then hands it back to the bailiff who hands it back to you; or (2) the judge holds on to it to review it in chambers and then returns it to you (or, if the judge needs to take the matter under submission, the clerk will inform you to pick up the evidence after the judge has finished considering the matter). The evidence generally does not become part of the public record.

Answer my questions (and also say which county(ies) your cases are in), and I may be able to provide more input.




This is a meaningless question in the abstract.

Thanks for your response.
The attorneys that I have a fee dispute with were hired to work on the pending case which was filed in the general civil system. The evidence would undermine that pending case, since I had discussions with the adverse party in the Small Claims case about how the pending general civil case might have certain weaknesses.

> When you submit evidence in a small claims case, one of two things typically happens: (1) you hand it to the bailiff, who hands it to the judge, who looks at it and then hands it back to the bailiff who hands it back to you; or (2) the judge holds on to it to review it in chambers and then returns it to you (or, if the judge needs to take the matter under submission, the clerk will inform you to pick up the evidence after the judge has finished considering the matter). The evidence generally does not become part of the public record.

The Small Claims case is in Los Angeles County, where you have to submit evidence 10 days ahead of time. I've received conflicting information from the clerks about whether the evidence becomes part of the file. A couple have said that it does not, and another couple have said that in that 10 day period theoretically someone from the public could request a copy of the evidence. The adverse party in the general civil case would easily be able to find out about the Small Claims case because my legal name is unusual, and all of this is public record and turns up on any simple internet search.

 

[adjusterjack]

So far you have written a lot but said nothing, other than you wanted to know if the lawyer's case against you could be dismissed because of this issue with the evidence.

The answer has already been given. It's no.

Now, this other person that you are suing, if you want any chance of winning you present your evidence when and how the court rules say so.

I suppose you can file a motion asking the judge to waive the advance presentation and allow you to present your evidence in a closed courtroom that excludes anybody but you, your opposition, and the judge.

Keep in mind that you are in SMALL claims court and it's not likely that a judge is going to overhaul what is a simple informal process in the first place.

 

[J.phlps]

An attorney is suing me in small claims for unpaid fees. I know that I can defend myself that the fees were unreasonable and will even argue that most of my retainer (which they kept) should be refunded (so, in other words, I'm countersuing them), but I have another related question. My file contained medical records and the firm did not transfer them to me in a way that was HIPAA complaint. Do I have any case for negligence against this firm? If so, is this considered different from legal malpractice? I ask because the legal malpractice statute has passed (this is CA) though I did only realize this HIPAA violation issue today.

If it is considered different from legal mal, and therefore statute for negligence is longer, I have an additional question: I am extremely busy right now and unable to devote the proper time to preparing for a small claims case. If the statute for negligence is longer, could I simply defend myself against the fee dispute now, and then go after them in either small claims or civil unlimited for negligence later? I think the personal injury statute in CA is something like 2 years.

If negligence DOES fall under legal malpractice, can I try suing for emotional distress? I genuinely have been distressed that my files were not transferred in a secure manner. They contained a lot of medical records and other highly sensitive information, and the way they were transferred was highly insecure. I assume emotional distress DOES fall personal injury, and not legal malpractice. Is this correct?

 

[cbg]

Someone can correct me if I'm wrong, but I don't believe an attorney's office is subject to HIPAA.

 

[adjusterjack]

My file contained medical records and the firm did not transfer them to me in a way that was HIPAA complaint.

Exactly HOW did the firm transfer(?) the file to you?

We need to know that before spending any more time on your question.

 

[adjusterjack]

Someone can correct me if I'm wrong, but I don't believe an attorney's office is subject to HIPAA.

It is if it is connected to an entity or business covered by HIPAA. Like an attorney representing a hospital.

Besides, there is no private cause of action allowed for a HIPAA violation. An aggrieved party may only make a complaint with an appropriate government agency.

 

[zddoodah]

Prior thread on the same topic.

My file contained medical records and the firm did not transfer them to me in a way that was HIPAA complaint.

Meaning what, exactly?

Do I have any case for negligence against this firm?

I don't know; you haven't provided any relevant factual information. Assuming that the act on which you might base such a claim was the transfer of files and that HIPAA would be the applicable standard of care (the latter of which isn't likely true), what damages did you suffer as an actual and proximate cause of the alleged negligence?

If so, is this considered different from legal malpractice? I ask because the legal malpractice statute has passed

Legal malpractice (which is negligence in the rendition of legal services) is subject to the same statute of limitations as any other negligence claim: two years from the date of the alleged negligent act or omission (or the date on which the alleged act/omission should have been discovered through the exercise of reasonable diligence).

If the statute for negligence is longer, could I simply defend myself against the fee dispute now, and then go after them in either small claims or civil unlimited for negligence later?

Generally, "if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded." Civ. Proc. Code section 426.30.

can I try suing for emotional distress?

You can try anything you like, but a cause of action for intentional or negligent infliction of emotional distress arising out of the rendition of legal services almost certainly would fail and is subject to the same statute of limitations as any other negligence claim.

I genuinely have been distressed that my files were not transferred in a secure manner.

Under no circumstance would this support a claim for emotional distress.

 

[Zigner]

For reference, here is the prior thread about the same matter: An attorney is suing me in small claims for fees

 

[cbg]

I'm not seeing anything to suggest that the OP is being sued by a hospital. But your point is well taken, Jack. I'm not seeing anything to suggest that it ISN'T a hospital either.

 

[Tax Counsel]

Do I have any case for negligence against this firm?

That depends on how the law firm handled the records. What exactly did the law firm do? And what, if any, financial damages did you suffer from it? If you have no damages then you don't have anything to pursue in a negligence claim. State law might provide you a statutory remedy if the company mishandled your information, though.

Note that HIPAA requires more in the way of safeguarding privacy than regular negligence claims do. Thus, if it's not a HIPAA claim, those standards of privacy will not apply.

If so, is this considered different from legal malpractice? I ask because the legal malpractice statute has passed (this is CA) though I did only realize this HIPAA violation issue today.

If the law firm was negligent in handling your confidential client information that would amount to malpractice, at least in the states I'm familiar with. However, the time to sue for that is typically no longer than for any other negligence claims.

Also, the attorney did not violate HIPAA unless he or she was an employee of a covered medical care provider or health insurer, or would be the agent of once of those two groups of businesses. That's becauseHIPAA only regulates privacy of health records maintained by those two groups of businesses; HIPAA does not apply to non health care related businesses.

If negligence DOES fall under legal malpractice, can I try suing for emotional distress? I genuinely have been distressed that my files were not transferred in a secure manner. They contained a lot of medical records and other highly sensitive information, and the way they were transferred was highly insecure. I assume emotional distress DOES fall personal injury, and not legal malpractice. Is this correct?

While you may file an emotional distress claim, those are extremely unlikely to be awarded given the facts you described so far. In general, most emotional distress damage claims go along with claims of severe personal injury or for conduct that is so outrageous that it would offend the average person. In other words, your garden variety negligence claim with no injury typically does not trigger emotional distress damages in most states. But you should ask a CA personal injury lawyer about that since I seem to recall that CA has a bit broader rule for emotional distress claims than the jurisdictions in which I practice.[/QUOTE]

 

[zddoodah]

In general, most emotional distress damage claims go along with claims of severe personal injury or for conduct that is so outrageous that it would offend the average person. In other words, your garden variety negligence claim with no injury typically does not trigger emotional distress damages in most states. But you should ask a CA personal injury lawyer about that since I seem to recall that CA has a bit broader rule for emotional distress claims than the jurisdictions in which I practice.

I recall reading case authority that there can be no NIED claim without a personal injury. No such restriction exists for IIED claims, but the "extreme and outrageous conduct" restriction applies.

 

[Zigner]

Id' be interested to know what the attorney's office did that led the OP to conclude that a violation occurred.