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makdan · Dec 28, 2007, 01:08 PM

Will I be able to prevail in small claims court against the plaintiff's attorney and/or her?

My ex-girlfriend filed a motion for a 2-year protective order to keep me out of our jointly-owned house. At the hearing, she didn't appear, but her attorney truthfully claimed that she was on business travel. He admitted that she notified him in advance, but that his office had inadvertently failed to notify my attorney or me. The hearing was continued. As a result of not being notified, it cost me a day of work and about 2 hours of attorney fees at $350/hour.

Questions:

am I likely to win?
whom should I sue, him, her, or both?
how much should I sue for: atty fees only, or also my daily wages? (Note: I was paid for the day, but had to take a day of vacation.)
should I warn the opposing attorney of my intentions and give him a chance to voluntarily reimburse me?
what proof will I need to bring: is the court document showing the scheduled date/time sufficient and an itemized bill from my attorney, or do I need more proof, like my attorney?

Also, should my attorney have requested a default judgement in my favor, or could the plaintiff simply have re-filed another protective order if I had won by default?

By the way, after one (unfinished) hearing, the judge has already indicated that the complaints so far don't seem to justify a protective order.

This might be fun -- personally suing an attorney.

If this is not likely to succeed, any other suggestions?

Fr_Chuck · Dec 28, 2007, 06:20 PM

I doubt that you would win, since the ex told the attorney, she was not at fault, the attorney did the error. But then I do not believe advance notice is manditory, they could have merely waited, which they did for the day of the court. This missing a court date, is a common, very common method of wearing you down, costing you money trying to get it where you can't afford to continue.

And since you plan to do this in small claims, you can't use an attorney, an attorney in court against someone without one, you would be eaten alive.

LisaB4657 · Dec 28, 2007, 07:24 PM

Don't bother suing her or her attorney in small claims court -- he will claim "law office failure" and you'll lose.

Instead, at the conclusion of the hearing on the protective order, your attorney should make a motion that your ex be held responsible for your legal fees, court costs, and the day of work that you lost because of her failure to appear. You have a better chance of winning that, especially if you win on the protective order issue as well.

makdan · Dec 29, 2007, 06:32 PM

Lisa's suggestion seeks compensation for all expenses, rather than just 2 hours of attorney time plus a day of work. Excellent!

I do expect to win the protective order battle:

at the end of the first hearing, the judge said that the complaints against me appear to be more financial than safety-related, and temporarily denied the request pending continuation in February, even before the following two outcomes
I have already been found not guilty of Assault/Battery against the ex
I have already been found not guilty of Assault/Battery and Brandishing a Firearm against her son

Thanks to you both.

Are judges (Virginia, in this case) generally amenable to making plaintiffs pay defendant's expenses if the claims are largely irrelevant to safety considerations or poorly supported?