Quote: Lucy said:
This letter was faxed 10 days prior the judge's order granting summary judgment to the plaintiff. I don't recall ever receiving this letter not my attorney giving me a copy, only came across because of my search in the court clerk's documents.
I know how important this letter was in the judgment and so the question is how and is it possible to use this letter to further my case?
Lucy, in most jurisdictions once an attorney has entered an appearance on behalf of a party, the Rules provide that all correspondence with that party be through that party's attorney of record. Bar disciplinary rules also usually include a provision that expressly prohibits an attorney for another party from communicating directly with a represented person.
These rules are ostensibly adopted for the protection of the represented person to prevent attorneys from intimidating the opposing parties and obtaining concessions without the benefit of counsel. The rules somewhat promote judicial economy by avoiding many unnecessary communications as when a party misunderstands some particular filing and calls their attorney to obtain an explanation of each and every possibly inconsequential development.
But the rules can also serve to close shop on the actual course of the litigation and often keep the client in the dark as to what is actually happening. For parties who do not understand the law, it is often difficult enough to understand and follow what is going on without being excluded from the communications.
When a party is represented by a singularly competent and experienced attorney well familiar with foreclosure defense, delegating all aspects of the litigation to the attorney has some advantages, particularly in terms of time and efficiency.
The trouble comes when even exceptionally capable attorneys are juggling a large caseload.
Not to overly dump on attorneys, the same sort of thing happens in the management of medical care as is well know to those who are both sophisticated and who have faced issues relating to the management of the health care of a close friend or relative. One can totally delegate the health care decisions to a particular physician or hospital. Or one can choose to be more proactive.
Sometimes those giving the advice have some self-interested motives in their guidance and recommendations.
Permit me to share a medical example. Some years ago, my father suffered congestive heart failure. Happily, he lives less than five minutes from a large regional hospital and upon the onset of symptoms, self-transported himself to the hospital emergency room where he collapsed, but was successfully treated and stabilized.
Once his condition was stable, the attending cardiologist ascertained that he had suffered a renal artery blockage for which the recommended procedure was clearing the blockage through use of a stent introduced through a catheter process. It was explained that this was a fairly routine procedure in which the regional hospital had some competence and experience. The cardiologist recommended that the procedure be done at that regional hospital.
Another choice was for my father to be transported by ambulance to a nationally known major medical center with a leading cardiac medical center, which was located only one hour away.
The EASY choice was to have the procedure done at the hospital where he was already a patient.
One of my best friends is a physician and one of the very smartest people I know. He has not only an MD from an ivy league medical school, but an MBA from a leading business school as well. My friend had loaned me his textbook on cardiology when I first went to attend to my father's health. And I consulted him about the recommendation.
My friend listened to the reports and, without examining my father, gave me some different insight into the relative merits of these two choices.
He basically said that the catheterization and stent implant procure was very well established and mainstream and that cardiologists in leading regional hospitals were very capable of doing this procedure. He added that the primary risk associated with the procedure was the puncture or tearing of artery during the catheterization procedure or the inflation of the stent, but that the risk of such a complication was very low. And while the rate of error or complication would be slightly lower at the major medical center than the regional hospital, he stated the this difference in incidence of error probably wouldn't justify the additional risks and inconvenience associated with transporting my father to the larger major medicla center with the global reputation.
But then he added that the real distinguishing characteristic of the major medical center was that at such a hospital, there would be a cardio-thoracic surgeon on standby during such procedures would could very often CORRECT any problems that emerged as a result of a catheterization gone awry. By contrast, in the regional hospital, the patient would probably just die.
None of this was disclosed, identified or discussed with us by the otherwise capable cardiologist at the regional hospital. But it would also seem likely that a thorough disclosure probably would have driven a large portion of the cardiac patients away to the large academic medical center only an hour away!
(If every time you went to an attorney, the attorney thought about which of his peers and competitors could most capably handle your case, he might end up referring ALL of his business, particularly if the attorney was of marginal or mediocre competence.)
My father was conscious and lucid and well able to make the choice for himself. Given the additional information relating to worst case outcomes, he chose to have the procedure done at the major medical center. I am not stating that this was the CORRECT decision. In all likelihood, it wouldn't have mattered. But we thought it to be the right choice.
I mention this anecdote, as instructive that one can be a passive consumer of medical services or one can be pro-active. In all likelihood, my father would have had a successful catheterization at the regional hospital. As I recall, the incidence of complications at that time was expected to be near or below 1%. The physicians believed my father's condition to be sufficiently stable that they saw essentially NO RISK in transporting him (for others at greater risk, a different decision might have been indicated).
The same balance between delegation of litigation and proactive participation can be true of management of litigation. A party can totally delegate the management of the litigation or a party can seek to remain continuously informed about various developments and to be a partner and participant in the litigation itself.
Not all attorneys will be eager or even willing to have the client involved in the litigation.
I recall seeing decades ago a sign at some auto mechanics's shop that said something like:
Labor -- $35 / hour
If you watch -- $50 / hour
If you help -- $100 / hour
This wasn't a mechanic who was encouraging customer participation in the repairs. But he was up front about it, in a jocular sort of way.
There is a balance that one must strike between micromanaging litigation and putting your head in the sand and delegating completely.
I am totally comfortable litigating pro se. I would NOT recommend this to others who can afford an attorney. There is really far too much to learn in too little time for the pro se route to be a preferred strategy.
But there are some distinct advantages that can be obtained by a thoughtful and judicious management of your attorney. One advantage that you have is that you are far more concerned with and motivated by the outcome of your case that your attorney is. Your home is at stake. Your attorney is going to be paid, win, lose or draw! And if you gave him the money up front, he is in a particularly secure position.
Another advantage you have is that you are usually BETTER ACQUAINTED with the critical facts of YOUR CASE. When you go over the pleadings, you are far more likely (if you have a reasonably good memory) to remember the FACTS of YOUR case than your attorney. You do NOT have the burden of trying to keep track of fifty or a hundred other similar cases, distinguishing the facts of all of these. Since the facts in your case may be very similar to a number of other cases, it is easy to see how an attorney is going to FORGET some of the details, particularly over time.
This is also an advantage you will have over the plaintiff's attorney, who is probably managing hundreds of foreclosures.
(By contrast, your attorney is going to be in a better position to assess the legal significance of many of those facts.)
Yet another advantage is that if you are vigilant, you can filter ALL newly emerging information nationally through the prism of YOUR CASE. You cannot afford to pay your attorney enough to do that for you.
When your attorney reads about some newly released deposition or some new court decision, it is going to be difficult for the attorney to instantly see how this new information affects EACH of the foreclosures he or she is litigating. But YOU can steadfastly continue to focus on these new developments as they pertain to YOU.
There are going to be other areas where the attorney has an enormous advantage. One of these is nuances of practice in the local courts and perhaps before particular judges. Unless you have been involved in other litigation, it is very unlikely that you are going to find information in books or at a web site that will fully prepare you for the tone and character of court proceedings.
If the attorney has a large foreclosure defense practice, the attorney will also have much non-public information about how plaintiffs have responded to different types of pleadings, motions and discovery in the past. And the attorney may also be aware of the terms of some settlements the details of which are subject to confidentiality agreements.
The attorney probably has three years of formal law training. And the knowledge of the law that comes with experience in actual practice.
It will be hard to catch up to the attorney's understanding of the law within the context of your case, just as it is difficult for the attorney to master every nuance of the facts of your case.
I recall that you have previously mentioned that you are litigating in New Jersey. The New Jersey Rule on service appears here:
If your attorney failed to respond to some critical motion or memorandum of law, it is unclear to me how the failure to notify YOU or serve you with this document would give you any leverage to set aside the judgment or to appeal.
But this is something you need to present to your new attorney.
IF YOU HAD A COMPELLING AND VALID APPEAL, WHICH THE ATTORNEY FAILED TO TIMELY FILE YOU MIGHT HAVE A VALID CAUSE OF ACTION FOR MALPRACTICE, BUT THESE CASES CAN BE VERY DIFFICULT TO WIN.
You need to understand clearly from your NEW attorney what your rights and chances are and to have this new attorney explain to you clearly his vision as to how to best litigate your case going forward.
Then you need to be more proactive in the management of whatever case remains. Be wary of throwing good money after bad.