BarkingDogs.net

Seeking Relief through the Civil Courts

This section builds on information contained in two previous links, and will be more meaningful and easier to follow if you read those sections first:

How to persuade your neighbors to quiet their chronically barking dogs

and

The barking laws, law enforcement, and the courts

Introduction

If you are stuck in one of those nightmare situations in which nothing else works to abate the barking of your neighbor's dog, it is time for you to think about proceeding in the courts. When you are contemplating a court action, the first thing you need to do is to find a good lawyer.

If you cannot afford an attorney, you do have one or two in-court options still available to you. I'll describe those for you a little later.

Finding An Attorney

Because they specialize, certain lawyers tend to work with certain types of cases. The ones who specialize in going for damages when their clients suffer harm at the hands of another are called personal injury lawyers. Whether it is a car crash, an injury inflicted by an incompetent doctor, or noise-generated trauma inflicted by a neighbor, when one person causes physical or psychological injury to another, that is the bailiwick of the personal injury attorney. A property lawyer could also be first rate for a barking dog case. However, whether you go with a personal injury specialist or a property attorney, you need to make sure that that person also has extensive experience doing injunctive work. Click here for more advice on selecting an attorney.

If you go to the yellow pages and look under Attorneys, you will find that the lawyers in your area are listed both by specialty, as well as alphabetically. Start by going to the list of specialties, finding the section that lists personal injury lawyers, or property lawyers and selecting one.

Also in the yellow pages, you will find a listing for Attorney Referral Services. It may not necessarily be a bad idea for you to try to connect with your lawyer-to-be through a referral agent, but first you do need to understand the nature of those agencies. Most such organizations exist to serve the attorneys who subscribe to their service. Therefore, even though you may be required to pay a fee, to them you are not the client, their clients are the lawyers who are looking to them for referrals.

Most referral agents are there to cherry-pick the best, most lucrative cases for the lawyers they represent. Therefore, they will often listen to your story and then tell you authoritatively that you don't have a case, when what they really mean is that they don't think your case will generate enough money for it to be of interest to the lawyers they represent. So don't take them too seriously when they tell you that your position is legally hopeless. Somewhere there is an attorney who can breathe life into your case. You just have to find him, and be able to afford him.

When you get your personal injury lawyer on the phone, inquire as to whether he also handles personal injury torts. If he does, he's still in the running. Ask him next if he does any type of injunctive relief work. That's important for you to know.

An injunction is, essentially, a court order telling someone that they must stop doing something. Which is just what you need, a mandate from the court telling the dog owner that he must quiet the animal. So it is smart to seek out an attorney who specializes in injunctive-type relief.

If you can prove that you have suffered grievous harm as a result of your neighbor's barking dog, your lawyer may advise you to go ahead and sue for monetary damages as well, but first things first.

Most attorneys will grant you your first interview free of charge. If, after hearing what you have to say, he thinks you stand a good chance of winning a significant settlement, he may agree to handle your case on a contingency basis. That means that if you win, your attorney will receive a percentage of whatever dollar amount you are awarded. If you lose, he receives nothing. Barking dog cases seldom result in large awards, however, so the attorney is not likely to want to handle your case on that basis.

If the attorney refuses to accept your case on a contingency, but you still want him to become actively involved, you will have to pay him a retainer. The required retainer will usually be in the neighborhood of $5,000, but you may be able to make other arrangements. It never hurts to try.

However, before you start writing large checks and going for an injunction through the court, there is something more basic and much less expensive that you may want to try. Ask the attorney what he would charge to write a letter to the dog owner saying that you have retained him and that he anticipates taking whatever legal action is necessary to ensure that you have the quiet enjoyment of your home, including filing a lawsuit.

You should be able to get such a letter written for something in the neighborhood of one-hundred-and-fifty dollars, and that may be all it takes to resolve the problem.

When you call the attorney to set up an appointment, there is a strong possibility that he will ask you, over the phone, right then and there, to give him a quick, thumbnail sketch of your case. So call with notes in hand, with your facts straight and your information in order, ready to provide a short, succinct description of your situation, just in case he asks.

Also, remember that it is important to be calm and collected at all times when you deal with your attorney, especially during the first phone call when you make initial contact. If things have become so extreme that you are seeking legal counsel, then it is probably pretty safe to assume that you are distraught and agitated. But don't let the anger and upset you feel toward the dog owner spill over into your relationship with your attorney, because any hysterics or other unpleasant emotional displays are likely to make him to want to avoid becoming involved in your case.

The Courts

Each state has its own court system. While there are many commonalities between the workings of the courts in the various states, there are also a good many differences. That makes it difficult to write a one-size-fits-all sort of description, telling you exactly how the judicial system works where you live.

That is another of the many advantages of having a lawyer. He knows how the courts operate in your area, so he can handle all of that and you, then, have many fewer things to worry about.

However, for those of you who will need to proceed without an attorney, I will try to give you some sense of how the non-criminal courts work.

In some states, like Illinois, for example, the non-criminal branch of the court is divided into a law division and a chancery division. The law division hears cases where people are suing, seeking a monetary award, while the Chancery Court deals with injunctions. That means that, if you want to sue your neighbor for money, you will need to proceed in the law division while, if you just want the judge to issue a court order quieting the dog, you will file your case with the Chancery Court.

To the best of my knowledge, all court systems have a lower division court as well as an upper division court. However, how they refer to the two branches varies from state to state.

In California, for example, the court system is divided into a criminal branch and a civil branch. The criminal branch deals with people accused of committing crimes, while the civil branch adjudicates cases in which one person, or group of people, takes legal action against another, either to achieve injunctive relief or to obtain a monetary award in compensation for whatever mistreatment they might have suffered.

In California, the civil court is further divided into the upper and lower divisions I spoke of earlier. The upper division, known as superior court, circuit court or district court, handles cases in which people sue for more than five thousand dollars. The lower division, called small claims court, handles cases in which people litigate for less than five thousand dollars.

The upper and lower division of the courts may be called by different names where you live, but the chances are that they share many of the same distinguishing characteristics.

Small Claims Court - The Lower Court

• You must represent yourself in small claims court. Of course, you can consult with your private attorney before your small claims court appearance, but no lawyers are allowed to appear in the courtroom for either side.
• The small claims court judge cannot fine the dog owner, nor can he issue an injunction to force him to quiet the dog.
• You can only sue for money and a limited amount of money at that. Most jurisdictions put the cap at something around $5,000, but the exact dollar amount for which you are allowed to litigate may be different in your town.
• You can only sue for the amount of money you have lost as a result of your neighbor allowing his dog to bark. You can not sue for pain, suffering, or punitive damages in small claims court.

Click here for more information about suing in small claims court.

Superior Court (also called circuit or district court) - The Upper Court

• You will need an attorney to represent you. There is no law that says you must retain an attorney before you will be allowed to litigate in superior court, but you will almost certainly find it impossible to negotiate the system and win a fair settlement without one.
• The upper court judge does have injunctive powers, so he can force the dog owner to quiet the animal.
• You can sue for an unlimited amount of money.
• You can sue to recoup any money you have lost as a result of your neighbor allowing his dog to bark and you may also sue for punitive damages as well as for pain and suffering.

In either branch of the court, if you can prove that the barking is debilitatingly problematic, the judge may award you the cost of any work you were forced to do to make your house more sound resistant. If you are driven from your home by barking, especially if you are sick at the time, you may be able to sue the neighbor for the cost of a hotel room for the night. If you are forced to move your place of residence to escape the noise, you may be able to get moving expenses. In addition, a recent ruling by the California Supreme Court now allows Californians to sue in small claims for the amount their property values have declined (as long as it is under the $5,000 cap) as a result of the barking.

If you do sue your neighbor for barking-related expenses, be sure to leave a paper trail showing that you notified him in advance that you would incur those expenses and would hold him accountable if he failed to control his dog in a timely fashion.

Remember, being right doesn't necessarily mean you will win in court. And even if you do, you may still run into trouble collecting the money owed you, especially if it is a small claims settlement.

Obtaining a Restraining Order

With a lot of luck and a compelling rationale, you may be able to obtain a restraining order against your neighbor that will legally forbid him to allow his dogs to bark. It is illegal to violate a court order, which means that, if you can get the judge to issue the injunction, your neighbor will be subject to arrest if he continues to let his dog bark beyond that point.

More likely than not, your local court will offer some kind of workshops where people seeking restraining orders can get help filling out the required forms. You will not appear before the judge at that point. He will make his initial decision based on your paperwork and what he hears of your case from the court employees conducting the workshop. You are not required to attend the workshop. You can opt to fill out the papers at home and simply turn them in for consideration, but you are more likely to be granted the order if you attend the workshop and make a favorable impression on the folks running the show.

If, after reviewing your paperwork, the judge thinks you have presented a compelling argument then, within a day or two, he will issue a temporary restraining order that will remain in effect until your hearing, which will be held in about three weeks. Both you and the dog's owner will be required to appear and make your cases at the hearing. Be sure to have a tape recording and/or a video tape of the dog barking, and having a few witnesses on hand couldn't hurt either. If the judge rules in your favor, the temporary court order will be extended or made "permanent," for up to three years.

You can maximize your chances of obtaining a restraining order if you can show an especially strong rationale for requesting it. For example:

• If you work at home and your livelihood depends on you having a quiet work environment.
• The disruption of everyone's sleep is impacting the health and well being of your family and/or your ability to function and make a living. (In that regard, a letter from the family doctor and any other relevant documentation you can provide may help your case.)
• You or someone in your family suffers from severe headaches, high blood pressure, or other health problems that are exacerbated by noise. (If you make this argument to the court, be sure to emphasize that, although the effect of the noise is particularly severe for you, the barking is of such frequency and intensity that most anyone would be unhinged by it. Don't leave room for anyone to argue that it is not the barking, but your special sensitivity to it that is the problem.)

Deciding Whether to do Unto Others, Or Wait for Them to Do It Unto You

If you continue to call on the dog owner, and keep it up over time, as described on the How to persuade your neighbors page, at some point he may seek a restraining order against you. If he does, there is some possibility that it could work to your advantage. For one thing, it would force the owner to appear before a judge and explain why he doesn't just train the dog or fit him with an electronic collar. Also, if the judge does issue such an order against you, you can request at that time that he also bar the owner from allowing his dog to bark. If the judge agrees to do so, then you will have quiet, because the owner would then be subject to arrest if he allowed his dog to bark in defiance of a court order. But that's a risky strategy.

You will probably be better off if you make the first move and file for a restraining order against the dog owner long before the point where he might request one against you. Who knows, you might get it. If you do, that should be the end of that particular barking problem. However, even if the court denies you the restraining order, even if they refuse to let you file, the fact that you tried to do so will serve as evidence that you made a sincere attempt to resolve the problem in an orderly fashion. Then, if the dog owner later files against you to stop you from calling on him, the court may be more sympathetic to your position.

Also, by attending the workshop to fill out the request for a restraining order, you will have an opportunity to make a favorable impression on people who know and have influence with the judge. If you leave them with the impression that you are a good and decent person pursuing your only option for dealing with an abusive neighbor, they may pass those observations along to the judge, which could help you considerably.

Click here to read an interview with an attorney who
has extensive experiencing litigating barking dog cases

This page is part of Section Three:
the Law section of barkingdogs.net