Have No Fear…Of Attachments
Written by James E. O’Connell, III
For every lawyer consulting with an injured client, the key case evaluation questions are (1) how strong is the liability claim, (2) what is the value of the case, and (3) how can I collect the most money for my client. In a serious injury case, the answer to the collection question may depend on the lawyer’s ability to exert pressure on the defendant to contribute personally to the settlement fund. Too few lawyers choose to apply pressure directly where it hurts. Good lawyers know that applying pressure on a defendant’s personal assets maximizes the client’s recovery and that this is best done through use of Maine’s rules on attachment and trustee process.
If the full measure of a client’s damages is higher than the available liability insurance, proper lawyering requires the use of attachment and trustee process to secure other available funds. Even where liability questions raise doubts about the value of the claim, attaching a defendant’s assets is likely to increase the insurer’s offer. Defense lawyers seek to avoid the uncomfortable position of exposing their clients to personal financial harm when a settlement within the insurance policy limit is possible.
Rules 4A and 4B of the Maine Rules of Civil Procedure provide the basis for obtaining attachment and trustee process. An attachment provides for a lien on real property, while trustee process is typically a lien on funds, including bank accounts, held by a trustee, including a bank. Maine statutes list the types of property subject to attachment (14 M.R.S.A. § 4151, et seq.) and trustee process (14 M.R.S.A. § 2603, et seq.).
At Berman & Simmons, we utilize these rules to help clients whenever they are likely to change the outcome of a case. A motion for an attachment and trustee process can be filed with notice to the defense or ex parte where it can be shown that notice to the defendant is likely to result in the targeted assets being dissipated. A well-prepared motion lays out the facts of the case, provides the applicable legal standard, and persuades the Court that the law applied to these facts compels a finding that the requested security is appropriate and should be ordered. To prevail, the motion must provide a basis for finding that the plaintiff is more likely than not to win a verdict in an amount at least equal to the security requested.
The Court may rely only upon facts provided in affidavits made upon the affiant’s own knowledge, information, or belief. The aggressive and creative lawyer will act early to develop supportive facts and find the witnesses who can supply those facts.
After establishing that the plaintiff will probably win at trial, the motion must provide support for the claim that the verdict will probably exceed the requested security. We have accomplished this in some cases through a combination of legal argument and an affidavit from a neutral lawyer who is experienced with similar cases.
With an effective presentation on the motion, the Court should order that an attachment, including attachment by trustee process, be made against the property of the defendant.
Having obtained an order of attachment, one must then get a completed and certified Writ of Attachment and/or a Summons to Trustee. These forms are issued by the Courts, completed by counsel and must be certified by the Court’s clerk.
While pursuing the motion, counsel must conduct a property search to locate real property held by the defendant and attempt to identify trustees who might be holding the defendant’s assets.
Attachments are not binding until perfected. Writs of Attachment must be filed with the appropriate Registry of Deeds or governmental agencies. The Summons to Trustee should be served on the potential trustees identified by plaintiff’s counsel. Upon proper service, a Trustee has 20 days to disclose an inventory of the assets it is holding and to certify that it will hold the assets pending further notice from the Court.
History shows that the pressure applied by attaching a defendant’s personal assets helps settle cases. If settlement is not possible and a trial results in a verdict in excess of the insurance limit, attached funds can be immediately available to help satisfy a final judgment.