William B. Esq. :
Dear Customer, thank you for using our service. My name is Bill and I would like to assist you today.
If you are being sued for conduct that you actually engaged in, and you wish to resolve the issue to avoid embarrassment, the quickest way to do so is to enter into settlement negotiations with the other side. When doing so you can probe the other side or their attorney for a value that they are willing to accept in order to file a dismissal with prejudice of the matter and the case will then be closed. It cannot be taken out of the court record, but it will at least be terminated and you will not receive any further pleadings, motions, correspondence, or further appearance requirements.
should I hire an attorney?
You can. An attorney may be able to negotiate a lower settlement value for you. I don't know what kind of money they are asking for, but it is a cost/benefit analysis for you as to whether or not it would be useful or cost-effective to do so. It is not required to have an attorney in these matters (particularly when you are simply focused on settling the matter. (But do request that the dismissal be "with prejudice")
The distinction between "with prejudice" and "without" is that "with prejudice" means the other party cannot bring a claim based on the same facts or circumstances in the future, while a claim dismissed "without prejudice" does allow them to bring the same claim in the future.
do you know what is the average amount that they are asking for?
I have no idea. It varies, but usually they are looking to deter future use, and get the fair value out of the product that you used improperly. (Did they give any dollar figure in the demand or complaint)?
no they did not specify the amount. they have a list of questions in the back of the Summon call Exculpatory Evidence Request. should I fill those out?
Give me a moment to look those up - pleadings vary from state to state and I want to ensure we are talking about the same thing. (You do want to make sure you respond to the complaint even if you are in the middle of settlement discussions, you do not want them to take a "default" against you, then they can get a judgment and you will not have the opportunity to defend against it).
Regarding a value - you can probably contact their attorney and ask (the number will be on the top of the complaint), at least then you will open up negotiations - you don't have to be ready to settle right there, you can just get the information to "think about".
Here is a link that will be helpful for you. The defenses identified are primarily "affirmative defenses" for debt collection cases, but the information on the procedure to file an answer and how to go about representing yourself in civil court will apply to your matter equally, and again, this should be helpful: http://pmconline.org/node/219
Here is one other link: https://docs.google.com/viewer?url=http%3A%2F%2Fnorthpennlegal.org%2Fnews%2Fwp-content%2Fuploads%2F2010%2F11%2FDefending_Pro_Se_in_Court_of_Common_Pleas_consumer.pdf
Do you have a lawyer that you would recommend in Philly, PA?
I am not allowed to give out specific referrals through the site, but I can give you three websites that will allow you to search for a civil litigation attorney in Philly. First is the Pennsylvania Bar Association (http://www.pabar.org/public/membership/lrsblurb.asp); second is Martindale Hubble (http://www.martindale.com/); and third is AVVO (http://www.avvo.com/find-a-lawyer). Look for an attorney practicing in a small law firm or a solo practitioner (newer attorneys generally charge a little less while more experienced attorneys are generally a little more efficient), you can probably take your choice in this matter, as it is likely going to come down to a matter of negotiations to get you out of this quickly and for as little money as possible.
how long does this process take?
It depends. Everything in this type of issue is fact specific, if the other side is reasonable and they just want enough money to cover the cost of their litigation efforts, and a little bit to "punish you" (and you can pay it in a lump sum) then it should go quickly. If they are unreasonable and want a lot of money to make this go away, then it may last much longer. But unfortunately, I do not know. (The outside end would probably 9-18 months assuming the matter went all the way through litigation and to trial, but that would assume that settlement talks completely failed all the way through the litigation process - very few cases go to trial).
should I be aware of telling the Plaintiff's lawyer anything that could further increase the fines?
I don't know that the attorney is going to be doing an investigation at this point in the litigation, but you can focus your conversation solely on settling the case (there is nothing wrong with calling them up, saying you are not admitting anything, but simply interested in making the lawsuit go away, and wondering what they would be willing to accept for a settlement agreement - you can then negotiate from there, or simply pay it - your call).
can you elaborate on what Rule 12 of the Federal Rules of Civil Procedure please?
Rule 12 is an alternative to filing an answer to a complaint - it is a way to "strike" information contained in the complaint that is false, inflamatory, or otherwise improper to be contained in the pleadings. I am trying to find you an article that has a little more detail about this type of motion practice in it than I can provide in this "chat" forum.
Here is a breakdown of the code, you will be interested in Rules 12(a) and 12(b) at the initial stage of your case: http://www.legallanding.com/wiki/FRCP_Rule_12 ; you can also find the full statute here: http://www.law.cornell.edu/rules/frcp/rule_12 (I would recommend starting there).
thank you for your service. I have a lot of reading to do.
You are welcome
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