WHY BIG FIRMS DON'T WORK    

Whatever the cost, fight the (not so) good fight -- Public Counsel

This tale of woe is a little lengthy, but it illustrates the folly of fighting about every issue and shows why litigation costs are hard to predict.

It is not uncommon that an attorney will serve a complaint on the wrong defendant.  The attorney does the best he or she can to locate the proper defendant, but a records check may reveal someone with the identical name but who is not the right person.  The poor recipient has a heart attack when they are served with the complaint, but after reading the complaint will figure out the mistake.  A phone call to the plaintiff's attorney will usually clear up the matter.

On the other hand, it is also not uncommon that upon serving a defendant, they will call to say that they are not the proper party when, in fact, they are.  This happens often in personal injury cases, as in, "I was never in an accident at the corner of First and Main.  You must have the wrong person."  Thus it is entirely appropriate for a plaintiff's attorney to perform a little due diligence before informing a defendant that he need not answer the complaint, based only on the defendant's representations that they are not the right person.

So begins our saga.

Public Counsel in Los Angeles was retained to represent a plaintiff in an action against a business.  Public Counsel performed a records search and found our client's business, which had a name very similar to the proper defendant.  So the process server showed up at our client's business and served the complaint. Our client called us to see if we could clear up the matter.

We called Public Counsel and explained the situation.  They seemed receptive, and we parted with the agreement that we would not have to answer the complaint and would provide some documentation to show that we were not the proper defendant.  Incredibly, upon contacting the proper defendant, he confirmed that he was the one that had done business with the plaintiff, and he provided a declaration under penalty of perjury confirming that fact.  End of the case for our client, right?  Wrong.

We next received an amended complaint, listing the proper defendant that we had identified to Public Counsel, but still listing our client as a codefendant.  Despite the documentation we had provided, Public Counsel would not dismiss the action against our client.

To get our client out of the action, we needed only to get the plaintiff to admit under oath that he had never done business with our client.  Public Counsel apparently realized that plaintiff would have to admit to that fact as soon as he was asked, so plaintiff failed to appear at his deposition, and objected to our written discovery requests.  We were forced to bring a motion to compel, and the plaintiff was sanctioned for his conduct.  We managed to avoid further discovery costs by successfully bringing a motion for judgment on the pleadings, and the case was dismissed.

This is another example of wasteful litigation practices.  For whatever reason, Public Counsel apparently believed that there was something to be gained by continuing the action against our client, but the procedural problems presented by the case as it was alleged made it far too costly to pursue.  Law firms need to learn that "never say die" is not a good motto when there are better ways to proceed.

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Aaron P. Morris is a Partner with the law firm of Morris & Stone, LLP, located in Santa Ana, Orange County, California. He can be reached at (714) 954-0700, or amorris@toplawfirm.com.  The practice areas of Morris & Stone include employment law (wrongful termination, sexual harassment, wage/overtime claims), business litigation (breach of contract, trade secret, partnership dissolution, unfair business practices, etc.), real estate and construction disputes, first amendment law, Internet law, discrimination claims, defamation suits, and legal malpractice.