Its a dog eat dog world.

Ok - now I have to apologize for two things:
First - its been nearly a week since I last posted.  Family and work before blog, I guess.
Second - instead of the promised definition post (which I will put up in the near future) - I have a question that demands a response!

The question, from Shamrockgrl74 is:
"Question for you.... while walking with my dog on leash an off leash dog in a front yard charges and attacks my dog. ( we were in the street) what do you do if the dog was hurt? also how do you handle the dogs owners who are being ( IMO) irresponsible? are there any laws around this?"


The statute on point (at least in California) for situations where a dog bites a person is Civil Code Section 3342(a), which states that “The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owners of the dog, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness.”


Sadly, I should point out that the law does not treat dogs (and especially your innocent victim dog) as people, but rather as personal property ("chattel" is the proper term I believe, which is not to be confused with "cattle," which are also chattel).  It is unlikely, then, that this statute would apply to your situation.  A look at the other laws on this topic reveal that if a dog bites a sheep, goat, cow, pig, or chicken (productive farm animals) - then you would have a claim under Civil Code Section 3341.  Alas - that code section still does not protect your dog against a dog bite.  


It would appear that your only means of recovering from the owner of the biting  dog would be a claim of negligence.  You could allege that the owner was negligent in allowing his dog to be off leash in a public street, that the law requires the dog to be leashed to prevent injuries to others and their property, and that your property (your dog) was damaged as a result.  Because your dog is not a person, you would be limited to your out-of-pocket losses.  This means that, if your pooch is injured, you could not sue for pain and suffering (or loss of consortium, another personal injury favorite which I will define in a future post but basically has to do with "bedroom benefits") on behalf of the dog.  Instead, you would be limited to recover for your costs in having your dog's injuries "fixed." 


For example, if your dog required stitches as a result of the run-in, you could demand (or at least file a complaint for the recovery of) the costs you incurred in getting those stitches.  You might even be able to ask for lost wages associated with your need to take time off of work to take Fido to the vet.  


I also note, just for informational purposes, that you are always allowed to use deadly force against an animal to defend yourself or another person (or even a cow, horse, chicken, sheep, etc - if on your property).


As a short answer, then - there are not any laws which specifically address a dog bite dog situation.  Your only solution would be to file a claim in small claims court to recover your vet bills for the owner's negligence in failing to keep their dog on leash.

My lawyer cost how much!?!?

One of the biggest shocks for people who retain an attorney for the first time is the cost.  You would think that the attorney would warn clients about how much things cost in advance, and many of us try to.  But those warnings either fall on deaf ears or are not as impactful as receipt of a monthly bill for $5,000 or $10,000 (or more).

Going in to litigation, you need to understand that, even with the most efficient, cost effective attorney, you are going to spend more money than you want.  This is especially true where you are sued as a defendant, and feel that you have not done anything wrong.  One of the painful truths that arises from this fact is that most cases settle, even if they have little or no validity.

So - if you are going to participate in litigation, you need to go in eyes wide open.  You need to assess, before significant legal fees have been incurred, what your expectations are with respect to the outcome of the case, and what will be the optimum result, given the realities of modern litigation.  This is an extremely hard step to take, because at the outset of the case you are too emotionally invested: you are angry and want justice.  Only after you receive a significant bill from your attorney will you step back from that anger, and decide that a settlement for less than "justice" may suffice - too late.

I note, however, that the above advice will not guarantee that you avoid the hefty legal fees.  The problem is that early in the litigation process, neither side really has a perfect understanding of the strengths and weaknesses of their cases.  Additionally, even if you go in with a rational approach, there is no guarantee that the other side has the same mindset, and you need to be careful that you do not set a settlement floor (or ceiling) too high or too low early on.  Having said that, it is still best to continue down the path of litigation and settlement negotiations with an understanding of the pros and cons of your case and the costs that you face if you do not settle, or if you settle but after significantly more litigation efforts.

My next post will provide common legal terms and their meanings.  If you have a specific term or word that you would like some explanation of, please let me know in the comments.  Thanks!

Civil Litigation - Do I have a case?

The first important question every lawyer is asked by a prospective client is the same: "Do I have a case?"
The answer, like everything in the law, is never straight forward, but rather calls into play several other questions (some of which are provided below):
1) Is the wrong that you describe a legally cognizable cause of action?
2) Can we tie some sort of damage claim to the wrong you describe?
3) Do(es) the defendant(s) that wronged you have any money or other assets to pursue, that will make this endeavor worthwhile?

The primary questions on the defense side (and I am on the defense side as often as I am on the plaintiff's side) are slightly different:

1) Do I have anything to lose (the corollary of question 3, above)?

2) Does the Plaintiff have a cognizable cause of action against me?

3) Can we show that someone else is responsible, or at least partially responsible, for the Plaintiff's damage? 

4) Was Plaintiff actually damaged?

5) What are the ramifications of allowing a judgment to be taken?

Most people who approach an attorney with a new claim are angry.  They feel that they have been injured by someone (or wrongfully sued), and they want that person/entity to pay.  I always try to subtract the anger and feeling from a new client's story before deciding whether a case is worth taking/defending.  Yes, that anger and feeling may have some value down the road, and is probably justified.  But right now, when we're trying to decide whether you want to spend thousands of dollars pursuing or defending a claim, we need to figure out if its going to be worth it.  At the end of the day, the decisions you make in the litigation context are business decisions.  My goal, if I am doing my job correctly, is to provide a realistic assessment of the answers to these questions to help you make the best business decisions possible.

So, when you are confronted with a wrong, or a lawsuit, the above questions, among others, should be a starting point with any attorney with whom you consult.

Beginnings... (or my first "blawg")

I am an attorney in good standing practicing general civil litigation in Contra Costa County, California.  You can look me up at www.calbar.ca.gov - my bar number is 221550, and I have been practicing for about eight years, right here in Walnut Creek.

I decided to start this blog both as a pro bono exercise (that is, an effort to give something of my experience to the community), and also to see the power of the internet in my chosen profession (call it a social experiment).  To that end, I hereby offer my services to local individuals and businesses - to answer what questions I can.  Obviously, this is a blog - so if you decide to post a comment publicly, then anything you post will not be privileged.  If you have a private question, or are concerned about your communications, please email me directly at chumitz@aol.com.  I have two small children, and an active practice, but I will do my best to try to respond in a timely fashion.

I also intend, in this blog, to share my insights (when and where I have them) about the current state of the law and the local legal community.  Anything you read in this vein is my personal opinion and heavily influenced by my own peculiar sense of humor, and as such should be taken with several grains of salt.

Again, welcome to my blog.  Please feel free to write me a message, ask a question, or suggest a topic of discussion.