Ponderous Practice Book Over-Complicates Filing a CT Lawsuit

What on earth does Section 8-1 “mesne” (mean)?

Confused associate.jpgI’ve written about traps for the unwary in Connecticut practice before, but nothing exemplifies the incomprehensibility of the Connecticut Practice Book quite like Section 8-1.  It is supposed to explain how you start a civil lawsuit in Connecticut.  I’ll let you decide.  It states: 

Mesne process in civil actions shall be a writ of summons or attachment, describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiff’s complaint.  Such writ may run into any judicial district or geographical area and shall blah blah blah I’ve read this 6 times and I still know nothing about how to start a lawsuit in Connecticut.

Makes perfect sense.  Just hang up your shingle, ye lawyers, and have at it!

The rest of Chapter 8 says nothing about:

  • selecting a return date (must be a Tuesday no more than 2 months after the writ of summons is signed, C.G.S. 52-48);
  • the deadline for service (at least 12 days before the return date, C.G.S. 52-46);
  • the deadline to return service to the court (at least 6 days before the return date, C.G.S. 52-46a);
  • the judicial districts in which the complaint may be filed (depends on where parties reside or operate their businesses);
  • who may serve process (a state marshal or indifferent person, C.G.S. 52-50);
  • the restrictions on what state marshal may serve process in your case (marshal’s service powers are restricted to a specific county, but a marshal may serve outside her county in some circumstances)

And much, much more!

I don’t think I even looked at the Official Practice Book for the first 5 years of my practice.  I relied 100% on the annotated Practice Book:  the editors explain the rules in English and the cases they cite cover just about every scenario you are likely to face.  In fact, I considered it a sign that I had moved from apprentice to journeyman lawyer when I was able to use the Official Practice Book most of the time.

Every so often, I ponder whether Connecticut should overhaul its dual-source civil procedure regime and create a single, comprehensive civil procedure statute like many states have.  I always end up firmly on the side of not changing anything, even if the official written sources of procedure are horribly lacking in many ways. 

Why?  Many reasons.  Maze.jpg

First and foremost - I don’t want to have to relearn Connecticut Practice.  For a less selfish reason, the annotated Practice Book does a good job of explaining Connecticut Practice and the cost of buying the book is less than the cost of implementing the new regime and learning it. 

Finally, for a young associate’s development, there is nothing quite like powering through trying to figure out if you need to file a “request” or a “motion” to prepare her for the life of a litigator.  It can be frustrating; it can be stultifying.  Then, we experience the glorious aha! moment when it all makes sense. 

And that can be beautiful and satisfying. 

Musings from the Cat Law Bar

Or, dare I say it, "Mewsings"?

Yesterday, I attended the annual meeting of the Connecticut Bar Association at the Connecticut Convention Center in Hartford.  An expedited arbitration that threatened to consume my life nearly kept me away, but once that was stayed, I pounced on the chance to go.

I always enjoy these events.  I get to talk to people who are passionate about the practice of law, stock up on free pens and coffee mugs, and see the new stuff I must have for my practice.  (WestlawNext, anyone?)

A chat with former Superior Court judge John R. Downey left me pining for the time when I was Connecticut's foremost authority on the Law of Cats.Thumbnail image for bigstock_Contract_And_Cat_2580094[1].JPG

It was a few years and firms ago.  Partner X gave me a new case to run, and I had the pleasure of appearing before Judge Downey for several of its motions.  I cannot say that Judge Downey always made good decisions (because a good decision is, by definition, the decision to agree with me).  But I knew I would be heard by someone who would understand the issues and make the right decision.

Anyway, it was a small case, but it was mine.  And it had the potential to answer the question burning in the hearts and minds of cat lovers everywhere: 

Did humans own their cats, or did cats own their humans?

Now, I'm a dog person and I'm allergic to cats, but I knew a case where I could make my mark when I saw it.  No one else in the firm knew a thing about cat law.  I was going to learn cat law, and become the firm's cat law resource.  I checked the journals:  NOBODY had published a thing on cat law.  And let's face it:  "See Slusarz on Cats" is kinda sweet. 

So, the facts:  a cat shelter took in some cats abandoned by New Orleans residents fleeing from Hurricane Katrina.  As part of their agreement with the Humane Society, the shelter kept the cats for a certain length of time, and then found new homes for them.

Several months later, two New Orleans residents -- humans who thought they owned their cats -- contacted the shelter and demanded the return of the 3 cats.   The shelter, having already found new homes for the kitties, refused.   The humans sued, claiming conversion of cat.  (Yes that's right, the shelter took possession of the kitties and converted them to their own use.) 

This led to hours of research, trying to understand how those humans could assert a property interest in cats they abandoned months ago and, on a more fundamental level, whether cats are even property that a human can own

Dogs were clearly the property of humans, as evidenced by the fact that the government taxes them.  See annual dog license feeBut see Mr. Peabody and his boy Sherman

Yet cats were not taxed.  Hence, cats were not property and, therefore, could not be converted.

More importantly, I proved that cats owned humans. 

Alas, this important legal precendent was never to be adopted; my brilliantly-crafted argument never to be heard; my career as the nation's pre-eminent cat law authority cut short.  We settled the case. 

And not for the 9-cat treble damages payout that I suggested.

HUGE Med Mal Verdict Shows Importance of Offer of Compromise

Smart Lawyering Adds About $30MM to $58MM Verdict

Personal injury powerhouse Kathleen Nastri of Koskoff, Koskoff & Bieder secured a $58MM verdict in a case where an bigstock_Money___922494[1].JPGobstetrician failed to deliver a baby by caesarean section immediately upon discovering certain conditions.  The baby, born two days later by caesarean section after mom went into labor, developed cerebral palsy and needs extensive home care.

Most of us will not have this day in the sun in our careers, but let me highlight something we all can do:  file an offer of compromise pursuant to Conn. Gen. Stat. § 52-192a.  This is NOT limited to personal injury cases -- I use them all the time in business litigation. 

By filing an offer of compromise, you say, "This is what my client will take to settle this matter."  The defendant has 30 days to accept the offer. 

If the defendant doesn't accept, and the damage award at trial is greater than the offer, the plaintiff is awarded 8% prejudgment interest on the entire amount of the damage award from the date the complaint was filed if the offer is filed within 18 months of the filing date, or from the date of the filing of the offer, if the offer is filed more than 18 months.

Add a few years for the case to wend its way through the justice system, and you've got some serious bucks and serious leverage in a settlement scenario.

Choosing Litigation Counsel: Does Size Matter?

And At What Point Does Professional Civility Clash with Zealous Representation?

I have worked for a small city firm of six lawyers up to my current gig of ±500 lawyers.  In each setting, I have found myself pondering the size and civility questions.  They intersect and overlap and I don't have answers. 

The Size Issue

I don't think I would get much pushback if I posit that you have to hire a firm with the critical mass to handle the lawsuit.  This means having a sufficient number of attorneys, with sufficient skill, to address the legal issues of the lawsuit in a timely manner.  It also means either having sufficient staff to handle administrative issues or appropriate relationships with outside vendors.

There are few cases that a large firm is incapable of handling.  Economics is often the limiting factor, rather than capacity or skill. 

Having started my career with the six-lawyer firm, I do not underestimate litigators in smaller firms the way some of my BIGLAW compadres do.  Many small firm lawyers are highly skilled, were trained at top firms, and chose to work in the small firm.  

There are an awful lot of knuckleheads too.  When my adversary is from a large firm, I rarely have to explain to my client that opposing counsel was supposed to do X, and that it will not make a difference with the court anyway even if it means a further delay in our case.  

Still, I wonder whether the knuckleheads are concentrated in small firms or simply that large firms keep their knuckleheads from interacting with the outside world.   

The Civility Issue

We all agree that as professionals we litigators could be a whole lot nicer to each other.  There is no reason to run to court with a motion for sanctions because your adversary served discovery responses a day late.  There is no reason to oppose a reasonable request for an extension of time.  And there is absolutely no reason to let it get personal (even if opposing counsel is a big dumb jerk deserving of his comeuppance from me). 

But beyond this it gets sticky.  One lawyer's incivility is another's zealous representation.  The stereotype within the profession pits the small town country lawyer against the big city shark.  Justice is denied the small town client because the shark won't play fair.  The shark, on the other hand, has to cut through the clubbiness of the local bar every court date. 

Lawyers under a certain vintage go to bar events and hear about how much more pleasant it was to practice in the good old days -- the days of carbon paper and "for services rendered" bills and predominantly white male bars.  But was it really all that good?  I doubt I would have been a lawyer in the good old days.  Neither would many in my firm.

The Intersection and Overlap

Where these issues trouble me most is when I see stereotypical behavior that, in turn, affects the client's rights. 

When I worked in the small firm, and a new litigation matter came in, the partners advised to call Lawyer X and work it out.  Lawyer X was inevitably someone from the local bar, who had a certain reputation within the local bar, and maybe referred business to the firm.  It was all very civil, but was it effective?

Just calling Lawyer X was not my strength -- I was just a baby lawyer, and I am analytical and introverted by nature.  I could not imagine why Lawyer X would simply capitulate if it was not otherwise in his client's interest, and was not terribly good at schmoozing capitulation out of him on the strength of my charming personality. 

Ultimately, litigation tottered along indefinitely because no one had the wherewithal to bring it to a head.  The fees were relatively low, but cases were never resolved.

In the large firm stereotype, a new litigation matter comes in, and the immediate response is to aggressively defend no matter if a simple call to your adversary could start the wheels rolling to bring about a resolution.  In the rush to grab the advantage over your adversary, sideroads to settlement can be missed. 

Is the client's interest really served if, after 10 months of acrimonious litigation, you reach an agreement that could have been reached after two?  Not really.

I keep these pitfalls in mind whenever I evaluate new cases.  I really don't have the answer. 

#1 Way to Lose Your Right to a Jury Trial in CT

It's Simple:  Confuse Joining of Issues of Fact with Closing the Pleadings


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Claiming a lawsuit for the jury trial list is yet another trap for the unwary in Connecticut state court practice.  Because a party must pay $425 to file a jury claim, it is rarely (if ever) filed when the case is filed.  Because no case makes it to the trial list until a certificate of closed pleadings is filed, and the certicate contains a nifty box to check indicating that you are also filing a jury claim form (and paying the fee), many practitioners make the mistake of thinking that the due dates are the same.

They aren't.

There is no due date for the certificate of closed pleadings.**  The certificate of closed pleadings just lets the court know that you are ready to have your case added to the queue for a trial.  Most plaintiffs want to file the certificate of closed pleadings as soon as possible because the queue can last a few years.  Most defendants do not care because the longer the wait until trial, the better.

The time to file is jury claim, however, is governed by Connecticut General Statutes § 52-215, which states (after 5 single-spaced lines mandating the keeping of a docket, the date by which a case must be docketed, and what information the docket must contain), "When, in any of the above-named cases an issue of fact is joined, the case may, within ten days after such issue of fact is joined, be entered in the docket as a jury case upon the request of either party made to the clerk." 

Translation:  the jury claim must be filed within 10 days after the last issue of fact is joined.  And they mean it!  I just won an objection to an untimely jury claim.  Plaintiff NEEDED that jury, but he isn't getting one.  (Cue maniacal laughter.)

So when is the final issue of fact joined?  It depends.  If the defendant does not raise special defenses, the issues of fact are joined upon filing the answer.  If the defendant does raise special defenses, issues of fact are joined upon filing a reply to the special defenses.  If parties file counterclaims, cross-claims, or third-party claims, it is the same -- the answer or the reply to special defenses.  It gets a little tricky with amended complaints because the court has to look at the substance of the amended pleadings to see if new issues of fact are actually raised, but the concept is the same.

The Moral of the Story:  In Connecticut Practice, if you want a jury to hear your case and you are relying upon your understanding of the "gist" of the Practice Book or Title 52, alert your carrier.


**Well, technically there can be a due date, but it is not set until the case is about to be dismissed for dormancy.  Then, the administrative judge of your judicial district orders you to close the pleadings by a certain date or the case will be dismissed. 

The Bill of Discovery -- Connecticut's Secret Procedural Device

Unlike New York, Connecticut does not have a statutory pre-arbitration sucker-punch a complainant can throw at the respondant.  You can seek an order pendent lite when you file your demand for arbitration, but you cannot get a temporary restraining order or attachment before you file the demand for arbitration.

There is a consolation prize, however:  the Bill of Discovery.  A plaintiff who can demonstrate probable cause to bring an action and no other adequate means of obtaining the desired information, can petition for a Bill of Discovery seeking information to determine the action is worthy of being pursued. 

The Bill of Discovery is a creature of equity, so do not trouble yourself searching the Practice Book or General Statutes for it.  (Not that the Practice Book and Statutes help anyway.  But that is a different rant.)

In a regular litigation context, this is a wonderful device that actually lets you put the cart before the horse.  But in a good way.  As long as you are not concerned that the defendant will make itself judgment-proof during the delay, the Bill of Discovery is a great way to avoid lengthy pre-answer motion practice.  Simply, you learn through discovery before bringing the action the facts necessary to avoid a motion to strike. 

And my personal favorite use of the Bill of Discovery:  confounding out-of-state lawyers with arcane procedural maneuvers.  More on this later, when I cover the mesne process (see Practice Book § 8-1).