BarkingDogs.net

The material on this page was contributed by Geordie Duckler, LLC - Attorney at Law,
in an interview conducted by the Barking Dogs Webmaster in May of 2006

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Go back to read about step one

Preparing to Sue the Dog Owner in Court: A Five Step Process

Step Two: Gather Evidence to Show that You Attempted to Mitigate the Problem

Now let's just say that the offending party won't cooperate, your neighbor won't help, and animal control won't help. Even though you tried all of those avenues, you still can't just still back and say, "Well, my life is going down the toilet and here it goes, so I guess I'll just live with it." You still have to show that you, yourself, knowing that there is an offensive sound coming across that fence or across the yard, are doing something. Not something to stop the dogs from barking but, rather, something that could, at least, muffle or reduce the effect on you. So, you have to show that you explored the possibility of employing soundproofing measures. It doesn't mean that you have to go out and buy double-paned windows or ear muffs or a white noise machine, because just the fact that you looked into those things as an option shows that you were trying to be reasonable.

The people on the jury are going to ask themselves, was it reasonable for this person to sue, or would it have been more reasonable for you to have just closed your windows sometimes. You have to put yourself in the place of the fact finder. If the fact finder doesn't think that you at least tried to make yourself less sensitive to the noise in some way, they won't like you and they won't like the fact that you sued.

I've had defense attorneys who said, "Well gee, you should have just bought a white noise machine and put it by your side of the bed and played that. Because that would have drown out all the other noises." I've had a judge laugh at that. And the judge is like, "Oh, I see. So, the plaintiff already has a noise problem, and you want him to solve the problem by making more noise." And I had a juror laugh once at a woman I was interviewing on the stand. She owned a kennel and I was representing the plaintiff who was suing her. I asked her, "When the dogs start barking, what steps do you take to quiet them?" She said, "Oh, well most of the time what I do is I start yelling at them to stop barking, and usually that works." So I said, "Now you know that there is a noise problem, and your solution is to make even more noise?" Then, the jury starting laughing. Apparently they thought that was hilarious.

So then, you need to show that you attempted to mitigate the destructive effects of the noise in some way. Again, you don't have to go overboard and you don't have to get insane or unreasonable. You don't necessarily have to buy the white noise machine, but you should think about it. Ask yourself, is there at least a simple shade or a curtain or something I could put up that will reduce the sound at least a little bit?

But of course, it can sometimes be difficult to prove in court that you made a real effort to figure out what you could do to mitigate the problem. I've had clients in the past who showed that they called a fence company and asked what it would cost them to put up additional fencing to help block the noise. They were told that it would cost $3,000 bucks and they thought, eek, forget that. So they didn't actually build the fence, but they were then able use the written estimate as proof that they at least checked into ways to mitigate the nuisance.

Now the estimate is actually good for two things. First, it shows that they were out there calling, trying to find a soundproofing measure and, two, when it comes time for the jury to award them money, it suggests to the jurors the kind of thing that the money might go for. Like building a fence or putting in some shrubs or trees or a soundproof screen, or something else to reduce the noise.

So getting an estimate for having some work done is a very good idea even if, in the end, you decide not to have the work done. And of course, when you call, it might be a good idea to write down the date, the time, who you talked to and what they said. Because those kinds of notes are also admissible as evidence.

Also it would be good if you could show that you at least looked into some things like anti-bark devices, like the little supersonic high-frequency devices that you can put on the top of the fence and point into the neighbor's yard.

Those devices have their good and bad points, but there are a lot of problems with them. For one thing, they make it look like you are being intrusive, because it makes it look like you are now trying to intrude on your neighbor's property. And who knows, that may then buy them a harassment and a nuisance case in which they claim that you are bothering their dogs. Also, those things don't work well, if at all. Plus, they're expensive and they make it look weird. They make it look like you are now conducting surveillance against the dog owner.

You also have to realize that the jury may think that there is something about the way you are living that could be contributing to the problem. For example, they may not like it if you are sitting on top of the fence to read your book instead of just sitting in your own yard.

Of course, with most barking cases there's really nothing you can do. Those dogs are driving them crazy and they can't even go outside to use their own yards. And of course, the dogs are outside in nicer weather, which is when you want to have your windows open. You can't go around on a ninety-degree day with your windows closed. Nobody should think that's a solution to a neighborhood problem, because it isn't.

But anyway, the point is that you somehow need to show that you at least looked for a way to effectively mitigate the problem.

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