Torts Complaint with Unfavorable Facts--Need Advice

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AVBucks4239
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Torts Complaint with Unfavorable Facts--Need Advice

Postby AVBucks4239 » Wed Sep 21, 2011 8:06 pm

Edit...got some pretty sound advice already.
Last edited by AVBucks4239 on Wed Sep 21, 2011 10:12 pm, edited 2 times in total.

CanadianWolf
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Re: Torts Complaint with Unfavorable Facts--Need Advice

Postby CanadianWolf » Wed Sep 21, 2011 8:09 pm

You lost me at "...to find his daughter engaged in sexual intercourse with another man." Obviously the father sues his "daughter" for fraud.

P.S. This is an attempt at humor. :D

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AVBucks4239
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Re: Torts Complaint with Unfavorable Facts--Need Advice

Postby AVBucks4239 » Wed Sep 21, 2011 8:11 pm

CanadianWolf wrote:You lost me at "...to find his daughter engaged in sexual intercourse with another man." Obviously the father sues his "daughter" for fraud.

P.S. This is an attempt at humor. :D

Just quoting the facts, lol.

CanadianWolf
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Re: Torts Complaint with Unfavorable Facts--Need Advice

Postby CanadianWolf » Wed Sep 21, 2011 8:14 pm

Just get a restraining order to prevent the other man from coming onto the Dad's property.

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Re: Torts Complaint with Unfavorable Facts--Need Advice

Postby CanadianWolf » Wed Sep 21, 2011 8:31 pm

Or you could choose to take the "high-road" and write a memorandum pointing out that since there was no trespass, no assault or battery, no false imprisonment, no damages recognizable at law or in equity, etc., that this matter is best left to the family.

A law firm can't force a young associate to file a frivolous claim & expose the firm's client to potential liability & yourself to discipline from the court or state bar. Filing a frivolous action might also expose your law firm to liability. You are an officer of the court & you are supposed to look out for the best interests of your client. Making this public record & exposing your client to liability are not in the best interests of your client.

CanadianWolf
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Re: Torts Complaint with Unfavorable Facts--Need Advice

Postby CanadianWolf » Wed Sep 21, 2011 8:38 pm

Another issue to consider is whether or not the Dad's threat to kill the other man creates a duty to inform. Priests & clergy have to--so why not lawyers ?

Additionally, why give the other man a forum in court when the Dad committed an assault by chasing the man from his home while swinging a deadly weapon ? Under the stated facts, Dad committed both a criminal & civil "violation" by swinging a "loaded" bowling ball bag at the other man.

Also, if Dad claims that the man drugged or coerced (raped) his daughter knowing that these allegations are false, then the Dad & the law firm are exposed to possible liability.

Do you really want the firm's biggest client cross-examined on why he became "sick" while bowling ? Too much todrink ? And why did he leave a minor child at home unsupervised ?

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Re: Torts Complaint with Unfavorable Facts--Need Advice

Postby CanadianWolf » Wed Sep 21, 2011 8:48 pm

Essentially, this fact pattern allows you to review a host of intentional torts & negligence issues--all of which are unfavorable to the firm's client "Dad". The only duty of care seems to have been breached by Dad when he left a minor child at home alone & unsupervised.

P.S. Note the use of the word "testimony" in the fact pattern when referencing the daughter's statements. This opens up several other issues & duties.

P.P.S. The Dad cried for weeks ? Does this impose a duty to report the Dad's threat or to call a mental health professional ?

(Please keep in mind that I can only point out the obvious as the last time I opened a book on torts was most likely before you were born. But this should get you started. The best advice, however, might be from current law students since they are currently involved in a torts course.)

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AVBucks4239
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Re: Torts Complaint with Unfavorable Facts--Need Advice

Postby AVBucks4239 » Wed Sep 21, 2011 9:10 pm

CanadianWolf wrote:Or you could choose to take the "high-road" and write a memorandum pointing out that since there was no trespass, no assault or battery, no false imprisonment, no damages recognizable at law or in equity, etc., that this matter is best left to the family.

A law firm can't force a young associate to file a frivolous claim & expose the firm's client to potential liability & yourself to discipline from the court or state bar. Filing a frivolous action might also expose your law firm to liability. You are an officer of the court & you are supposed to look out for the best interests of your client. Making this public record & exposing your client to liability are not in the best interests of your client.

Well, I just talked to my dad (another attorney)...The assignment is to draft a complaint that you will go over with your senior associate. He said to just draft any of them that fit, then my senior associate and I would discuss why they would not file anything.

You think that's the right approach?

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Re: Torts Complaint with Unfavorable Facts--Need Advice

Postby CanadianWolf » Wed Sep 21, 2011 9:14 pm

That's up to you. My impression is that, other than filing for a TRO, there are no grounds on which to file a complaint. I wouldn't draft a complaint based on these facts, but I am not you. If your firm instructs you to advance an unethical matter with knowledge that it is unethical, then it's up to you. I wouldn't do it.

P.S. On what grounds or basis would you draw up a complaint ?

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ggocat
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Re: Torts Complaint with Unfavorable Facts--Need Advice

Postby ggocat » Wed Sep 21, 2011 9:29 pm

Parents should probably be able to sue for torts against the child, so I think battery is in play. Dad thinks his daughter did not give valid consent due to drugging/coercion. For a law school class (key qualifier here), that's probably enough reasonable basis in fact to allow you to file a complaint. Although daughter says she consented, that's a fact issue a jury can decide. Dad was a witness to the event, as well.

Also, I'd look further into trespass to land. Yeah, the daughter said it was OK, but is that enough? May one adult enter the property owned by another adult based on an invitation from a child?

Also check your jurisdiction / casebook for negligent infliction of emotional distress. I seem to remember something from law school about harming someone's family member in front of them --> bystander can recover for NIED. If there was battery against his daughter that he witnessed (intercourse), perhaps that's enough. Could be negligent to bone his daughter in his house without taking adequate protection to ensure privacy.

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Re: Torts Complaint with Unfavorable Facts--Need Advice

Postby CanadianWolf » Wed Sep 21, 2011 9:48 pm

Interesting thoughts. Dad crying for weeks could be argued as a basis for damages. However, if Dad was sick, did that affect his perception of the events. If Dad thought that his daughter was drugged or raped, then why didn't he call the police or seek treatment for his daughter ? Why is there "testimony" in this matter ?

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I.P. Daly
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Re: Torts Complaint with Unfavorable Facts--Need Advice

Postby I.P. Daly » Wed Sep 21, 2011 9:50 pm

AVBucks4239 wrote:He believes his daughter was either drugged or coerced.


I'm not exactly sure how the fact pattern addressed the daughter's "testimony" about the consent issues.

However, I might focus on the fact that the daughter may have been drugged or coerced. If you can effectively to apply the fact that his daughter was either drugged or coerced to the intentional torts you discussed, your complaint may be able to survive a motion to dismiss.

CanadianWolf
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Re: Torts Complaint with Unfavorable Facts--Need Advice

Postby CanadianWolf » Wed Sep 21, 2011 9:55 pm

Drugging or coercion would likely negate consent.

Also, you may want to address the issue of who is your client (Dad and/or daughter or even your law firm) & what are his/her damages, rights, exposure, etc.

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ggocat
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Re: Torts Complaint with Unfavorable Facts--Need Advice

Postby ggocat » Wed Sep 21, 2011 10:00 pm

CanadianWolf wrote:However, if Dad was sick, did that affect his perception of the events. If Dad thought that his daughter was drugged or raped, then why didn't he call the police or seek treatment for his daughter ? Why is there "testimony" in this matter ?

I think those first two issues are ripe for cross-examination but do not greatly impact whether there is reasonable basis to file suit.

As to testimony, maybe OP can clarify. (I assume there really is no "testimony" and that was misstatement.) But there are pre-suit depositions in some states (my state). That could be a reason for "testimony." But still, if dad was a witness and believes his daughter was drugged/coerced, I think that could be enough for a nonfrivolous claim. (Not one I would sign, but still).

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Champion of the Sun
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Re: Torts Complaint with Unfavorable Facts--Need Advice

Postby Champion of the Sun » Wed Sep 21, 2011 10:02 pm

"So, what torts do you sue on? The elements of assault and battery seem present, but the defense has a privilege of consent. Do you file those anyway?"

"I also should note that my professor probably goes on 1-2 diatribes per lecture about how "It's your job to represent your client in the most favorable light." Literally everything comes back to that. So trying to be smart and drafting a memo stating that he does not have a case (which I don't think he does) is not an option."

Its not up to you to decide what the defense might be, what if the defendant has a crappy lawyer who wouldn't have thought of an affirmative defense and you don't make the claim?

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Re: Torts Complaint with Unfavorable Facts--Need Advice

Postby CanadianWolf » Wed Sep 21, 2011 10:04 pm

@gogocat: Again, interesting thoughts. Obviously the Dad has suffered emotional distress. But, testimony is a significant word that may preclude further action on behalf of the daughter. Testimony implies that the daughter was subject to cross-examination. What if the testimony was from a criminal trial at which the other guy was exonerated ? You have to argue that the standard of proof in the criminal trial was not met, but that the standard is much lower for a civil matter.

Are there any other damages besides Dad's suffering ?

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AVBucks4239
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Re: Torts Complaint with Unfavorable Facts--Need Advice

Postby AVBucks4239 » Wed Sep 21, 2011 10:11 pm

CanadianWolf wrote:@gogocat: Again, interesting thoughts. Obviously the Dad has suffered emotional distress. But, testimony is a significant word that may preclude further action on behalf of the daughter. Testimony implies that the daughter was subject to cross-examination. What if the testimony was from a criminal trial at which the other guy was exonerated ? You have to argue that the standard of proof in the criminal trial was not met, but that the standard is much lower for a civil matter.

Are there any other damages besides Dad's suffering ?

Again, forgive me of my ignorance. Daughter never "testified," I (as an attorney) simply spoke with her and she told me she consented to everything.

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Re: Torts Complaint with Unfavorable Facts--Need Advice

Postby CanadianWolf » Wed Sep 21, 2011 10:13 pm

I thought that your original post was from a "fact" sheet handed out as the assignment.

If the daughter told you that she consented to everything, then you need to determine whether or not the consent was valid.

Thanks for posting as this turned out to be an interesting exercise.

target
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Re: Torts Complaint with Unfavorable Facts--Need Advice

Postby target » Thu Sep 22, 2011 1:15 am

seem that I am late, but can op bring claim on intentional infliction of emotional distress, defamation, etc. since he couldn't sleep and what not.

On a half joking side: did the daughter have intercourse in the father's bedroom? and was she in some weird position that cause shameful feeling? :D




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