5. Legal arguments versus jury arguments

 Legal arguments versus jury arguments

There is a saying among lawyers: If the law is on your side, argue the law, if the facts are on your side, argue the facts, if neither is on your side, argue with great passion. 

Arguments based on the law

This can best be explained with an example: If the judge rules that a limitation of liability clause is enforceable, it is game over. The facts of the case do not matter. Only the judge is allowed, typically, to rule on the law. The jury can only apply the law, as explained to them by the judge, to the facts as presented in the trial.      

Arguments based on the facts

Arguments based on the facts are jury arguments. The jury must decide based solely on the testimony presented in the courtroom, what is true and what is not. If a jury finds that you violated the applicable standard of care, you will lose the case. 

Why legal arguments are your best bet

Given that someone has filed a suit against you, the best resolution is to block any legal action against you by being able to point out to a judge that there is some legal requirement that the plaintiff has not or cannot meet.

The advantages are two-fold. First, the case may be resolved quickly. Second, the legal issue will be decided by a judge with no jury present. Quick and easy. Any time your attorney can show, as a matter of law, that the suit cannot move forward it is to your advantage to press on in that direction.

Let me give you an example. In my second suit, the plaintiff’s attorney filed the suit without a written statement that cited how I had failed to uphold the applicable standard of care. In suits against architects, engineers and landscape architects, the law is that the judge must dismiss the suit if this document is missing. It must be filed with the other documents required in the filing.

When I retained an attorney, he was not aware of this law and was clearly skeptical that it required that the judge dismiss the suit. He called me a few days later with what he called great news. The law was exactly as I described it and, even better, two appellate courts had ruled that the law was enforceable.

Next, he told me that there was still a problem. The judge had to dismiss but did not have to dismiss with prejudice, meaning that they could correct the paperwork and refile. I told him that, actually, they could not refile. He assured me that they could. I repeated that they could not and told him to go back and reread the original filing. In that filing they laid out a chronology wherein they cited a specific date when they discovered the “problem.”  They had filed just under the 2-year deadline. Technically, the judge could not dismiss with prejudice, but it might as well have been the case that she could and did.

The bottom line

Any time you can get the matter resolved in your favor by having the issue heard by the judge with no jury involved, it is almost always to your advantage. A hearing before a judge might cost you $2500. That might sound like a lot of money, but, in some cases, it would be  money well spent.

One last point

For over 30 years, I have watched the home inspector trade associations try to gain a political advantage by spending money on lobbyists. So far as I can see, the money has been a waste. I am no expert, but getting home inspectors on the list of professions that have some protection against nuisance suits should not be an impossible goal. I cannot understand why an attorney should be able to file a suit when he cannot get a single TREC inspector to cite in writing at least one instance in which the home inspector failed to meet the standard of care. 

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