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Ely
Ely, Counselor at Law
Category: Criminal Law
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Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Last week the Court of Special Appeals vacated my sentence

Resolved Question:

Last week the Court of Special Appeals vacated my sentence which was the suspended portion of a 10 year sentence. My original sentence began in 1994. I was kept on probation until I violated because I couldn't keep up my restitution payments in 2009. After several hearings, the trial Judge put into execution the suspended portion of that 10 year sentence.
The Special Court of Appeals Opinion stated that the Trial Court was "without authority" to extend her probation.

I plan to bring a Legal Malpractice Complaint against my former attorney for not entering my requested Motion to correct an illegal sentence. Due to the statutes of linitations, it must be filed by September 16, 2013, so in order to meet that deadline, I will file the complaint Pro Se. I have a few questions:
1)Do I bring the Complaint in front of the District Court or Circuit Court?
2)If in District, what is the amount of damages I should be seeking.
3 I also feel I should bring a complaint against the state of Maryland for wrongful imprisionment.
Lastly, are their any samples of Legal Malpractice Complaints that I can look at?
Thank you.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation.

1)Do I bring the Complaint in front of the District Court or Circuit Court?

This is your choice. District Court handles claims of $5,000 to $30,000. Circuit Court handles claims of $5,000 to no maximum. So it depends on the amount being sought.

2)If in District, what is the amount of damages I should be seeking.

While I could not tell you what the amount would be, it depends on the jury in the end. Many parties simply ask for damages and let the jury decide, or, ask an amount but let the jury decide whether to use that amount or another one. It is best to "think big." The jury will always "lessen" the amount if they want, but rarely would they "increase" it once you name a number. So a few million, perhaps?

The damages are divided into two parts:

1) ACTUAL damages (legal, medical, lost wages, etc); and
2) PUNITIVE damages (if show intent to injure, evil motive, or fraud). Owens-Illinois, Inc. v. Zenobia, 601 A. 2d 633 (Md. 1992).

3 I also feel I should bring a complaint against the state of Maryland for wrongful imprisionment.

You can if you'd like. This is called "false imprisonment." To sue in a state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state because they all stem from the same common law. A pleading in Court needs at least one cause of action, although it is not unusual to have more than one.

The necessary elements of a case for false imprisonment are a deprivation of the liberty of another without his consent and without legal justification. Safeway Stores Inc. v. Barrack, 210 Md. 168, 122 A.2d 457 (1956).

Lastly, are their any samples of Legal Malpractice Complaints that I can look at?

I am sorry, but there are no samples of complaints for legal malpractice online that I could find for Maryland. However, I can say that the elements of a legal malpractice action in a civil case include: (1) the employment of the lawyer, (2) the lawyer's neglect of a duty, and (3) loss to the client proximately caused by the neglect of duty. Thomas v. Bethea, 351 Md. 513, 528-29, 718 A.2d 1187 (1998); Cavacos v. Sarwar, 313 Md. 248, 253, 545 A.2d 46 (1988); Kendall v. Rogers, 181 Md. 606, 611, 31 A.2d 312 (1943). You will have to prove this in Court.

Good luck.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 1 year ago.
Thank you Ely,
I didn't mind the delay, I know it takes time to answer all my questions. And answer them you did! I appreciate the way you outlined everything for me.
My next question, since I was convicted in the Circuit Court, and am now going to bring and action which could land on my Trisl Judges desk, will that effect me adversely?
Thanks,
Eileen
Expert:  Ely replied 1 year ago.
E,

And answer them you did! I appreciate the way you outlined everything for me.

Thank you for your kind words.

since I was convicted in the Circuit Court, and am now going to bring and action which could land on my Trisl Judges desk, will that effect me adversely?

Possibly. If the civil action falls unto the same Judge, one may wish to ask that the Judge be recused. This happens IF it lands with them. If so, a Motion to Recuse Judge may be in order. It is not automatic, however. You will have to show that the Judge cannot be neutral and would be/is biased.

A judge is required to recuse himself 'only if a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned. United States v. Story, 716 F.2d 1088, 1091 (6th Cir. 1983) (quoting Trotter v. International Longshoremen's & Warehousemen's Union, 704 F.2d 1141, 1144 (9th Cir. 1983)). This standard is objective and is not based "on the subjective view of a party." Browning v. Foltz, 837 F.2d 276, 279 (6th Cir. 1988), cert. denied, 1095 S.Ct. 816 (1989). The above are federal court rulings, but MD has similar standards. Maryland Judicial Ethics Committee Opinion Request Number: 2009-18.

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Customer: replied 1 year ago.
Inunderstand. But after I thought about, he is a criminal trial Judge. This should fall into the Civil Court.
I am preparing the Malpractice Complaint. Why do I call it?
Motion to--------?
Thanks
Expert:  Ely replied 1 year ago.
E,

This should indeed fall under civil court, but just in case (you did ask).

Motions are pleadings that are used within the suit, such as for temporary orders, etc.

For the initial pleadings, it is simply called "Complaint."

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 1 year ago.
I am in Kentucky until next week on business but I am going to the law library in Bowling Green, KY to see if I can find any cases that might helt me structure my Complaint.
I would normally start out my Motions with:
Comes now your Defendant, ES, who moves this Honorable Court to .........
Is this how I start? I'm going to try and find some online. I just need to get something filed until I engage a Lawyer to take over.
Any suggestions?
Expert:  Ely replied 1 year ago.
E,

Yes, the language is similar. A sample of a complaint (not for legal malpractice, but for another action) may be seen here. This should give you an idea of what a civil complaint should look like.

Keep in mind that often, the complaint may be amended if there is something missing.

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Customer: replied 1 year ago.
Ely,
I looked at the complaint you sent me. That's a little more complicated for me.
Please look at the below link:
http://www.millerandzois.com/Sample-Negligence-Complaint.html

Would this be a good start for me?
E
Expert:  Ely replied 1 year ago.
E,

Ah, excellent example - yes - good start! Looks like your Google skills are a little better than mine (I'm a little jealous).

All the rest of my answer stays the same.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 1 year ago.
Ely,
You just made my quest for information 100 X's easier. I was looking for "Motions". No wonder I couldn't find anything! Lol.

What would I look under for my Action against the State of Maryland?
Is this also a Complaint?
Thanks,
Eileen
Expert:  Ely replied 1 year ago.
E,

You just made my quest for information 100 X's easier. I was looking for "Motions". No wonder I couldn't find anything! Lol.

Great.

What would I look under for my Action against the State of Maryland?
Is this also a Complaint?


Yes, it is. So what someone in your situation wants to do is to have TWO DEFENDANTS in one complaint. This is not unusual.

ATTORNEY - professional negligence, i.e. malpractice.

STATE - false imprisonment (as discussed above).

Now notice that this is very generic information. Other issues likely apply such as special considerations for suing the state, etc. It is recommended to get an attorney asap.

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Customer: replied 1 year ago.
Ely,
I plan to get an Attorney as soon as I get home to Maryland. I just need to file the Complaint so I preserve my rights.

Who do I serve for the State and do I have to have my former Attorney served personally or can his office accept service?
Thanks,
E
Expert:  Ely replied 1 year ago.
E,

Who do I serve for the State and do I have to have my former Attorney served personally or can his office accept service?

This is where it gets tricky. Due to the specifics, it is uncertain who should be sued when it comes to false imprisonment - the state, the county, etc. Honestly, I cannot say without knowing more.

IF SUING THE STATE, service is made upon the State of Maryland by serving the Attorney General.

IF/ALSO SUING THE ATTORNEY, service would be to him personally.

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Customer: replied 1 year ago.
Ely,
I would think, since the Judge ordered my sentence into execution, I would sue the State. I think for good measure, I will include the Division of Correction and the Division of Parole and Probation as they were the one's who initiated the summons for the VOP. What do you think?
E
Expert:  Ely replied 1 year ago.
E,

I am sorry, but I cannot tell you who to sue. This crosses the line between general information and legal advice and I am prevented from doing so - apologies.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 1 year ago.
Ely,
I apologize, I should have known better. I was so engaged in our conversation, I forgot this is an informational site only.

Well, it's time to scour the Internet and begin to formulate my complaint.

I will keep you updated. I may still have some questions, but I'll keep them general.

Thank you so much for all the information.
Eileen
Expert:  Ely replied 1 year ago.
No need to apologize at all, Eileen.

You are very welcome. Good luck, and please don't forget to rate my answer in one of top three faces and then SUBMIT – it is the only way I get credit for my time with you – or, please REPLY to keep on chatting – I want you to be satisfied.
Ely, Counselor at Law
Category: Criminal Law
Satisfied Customers: 89126
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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