How to Check up on a Mexican Attorney in Litigation
So I see all sorts of mistakes that attorneys make and I doubt even 1% of their clients know they make these mistakes, some are HUGE!
Here in Mexico there are few oral proceedings for the most part (subject to ongoing changes with the integration of oral trials in family, criminal and business cases) and most everything is done by turning in a written request and then the court issues a ruling.
If you are involved in litigation ask your attorney to provide you a copy of each request turned into the court within 24 hours of doing so. It doesn’t matter that you speak or understand Spanish as it will help you build a file, something which few people have and if their attorney turns out to be a real dud, you’ll need a full copy of your file to have the next guy clean up the mess and be able to understand the case. Only an attorney with something to hide will not provide this to his client or one that is lazy or cannot afford a $800 peso scanner or 1 peso for a copy.
More importantly than a copy of the request to the court is what the court answers back. Sometimes the court orders can be from 1 page to 3 or 4 or more. The heading is really what matters as reading it you’ll know if your attorney screwed up.
On the top it says “AUTO” (meaning court ruling)
Then the following are danger signs that your attorney screwed up (these are the most common):
NO SE ADMITE This is where your attorney did the lawsuit wrong and the court won’t accept it and throws it out. The court is saying he did the lawsuit wrong and the form of relief and method of application is wrong and he needs to go back to the drawing board.
SE PREVIENE This is where the attorney forgot to include something, perhaps as simple as a copy of the suit to be served on the other party, a key piece of information the judge needs to accept or determine if the lawsuit is proper (such as jurisdiction and / or venue) , to clarify an issue or comply with a procedural rule and can go forward. There is a time period here to act, usually 3 days and do things properly or else your case gets kicked and you start from scratch.
NO HA LUGAR This is where the attorney asks the court for something and it is denied. Commonly this is where the attorney asks the court to start or conclude an evidentiary period but perhaps they calculated the time wrong or some other improper request. The Court can make mistakes so this doesn´t always mean an attorney mistake. We have had it happen in probate cases where the court asked the social agent to review the case file and we then requested something but the social agent forgot to write that they reviewed the file by placing their stamp and signature.
NO SE RADICA This is where a probate case is thrown out due to the court feeling that the decedent did not live in the territory of the court’s jurisdiction or it was not properly shown that there is real property within the court’s jurisdiction thereby giving the court the ability to take the case and rule.
Knowledge is power. These are general terms but will allow you to see, if your attorney seems to be always getting rulings with these headings then maybe they don’t know what they are doing or the court just hates them, either way it is not good news for you. The court also makes mistakes (they are human but this isn’t too common) so everything needs to be taken into consideration but some attorneys just don’t know what they are doing and have no business practicing and prey on the naiveté of the foreigners by showing off their sparse English skills. Just because another gringo recommends an attorney doesn’t mean they know what they are doing. Litigation separates the men from the boys (not a crowbar). Some cases a monkey can win, others will challenge even the most experienced jurist.
One HUGE problem here in Mexico is notifying the litigants of hearings, time deadlines for evidence or anything else involved in the lawsuit. In the US, for example, the court clerk will mail a minute order or the attorney who won the motion will have the responsibility to notify all parties of the court’s ruling.
In Mexico there are a few different ways to notify the litigants and their attorneys. This can be important as Mexican law is very unforgiving and unlike the US where you can make a motion for relief from default, your failure to file a paper or appear at a hearing will have serious consequences which cannot be reversed easily, if at all.
Generally the court will notify the litigants in one of two ways of their rulings, future hearings, and time deadlines. They will do a general notification for minor items which is a stamp on the back of the ruling or order which makes such notification effective the day after (NOTIFIQUESE) or the court will order personal notification of the attorneys or parties (NOTIFIQUESE PERSONALMENTE).
This personal notification can make the difference between winning and losing the case if your attorney is lazy or far away from the court. In smaller courts like Chapala whose judicial district (Second Judicial District) covers the municipalities of Chapala, Jocotepec, El Salto, Juanacatlán, Ixtlahuacán de los Membrillos, Tuxcueca and Tizapán el Alto there is no way to learn of the court’s ruling unless you go to the court every day and check OR have listed an address within the city of Chapala where the notifier’s office can personally deliver to you a copy of the ruling OR pay someone locally to check and hope they really check frequently.
If you do not list this address (un domicilio en la cabecera municipal) on your initial lawsuit or later change to list such an address, you will be notified in the court file by ESTRADOS which means unless you go to the courthouse and ask to see the file, you will have no way of knowing what the court ruled or that any hearings were scheduled or that any time deadline has been given to do any act or turn in any paper. This type of notification (ESTRADOS) is just like the (NOTIFIQUESE) as the clock starts ticking from the day after the notification is placed in the file.
A very common bad habit of attorneys is to avoid making the trip to Chapala and only going periodically such as every two to three weeks. While this may free up their time as a drive from Guadalajara to and from the court in Chapala may waste 2 to 4 hours or more depending on traffic, it could have severely negative consequences for the client. This can be fatal as many times the time to act (i.e. file an appeal or appear at a hearing) may be a date in less than 2 weeks from the court’s ruling which will either be missed or which will give them little to no time to prepare for the hearing or the pleading.
Some attorneys use an address of their “buddy” or sometimes even a notario so that the court notifier’s office will drop off a copy of the rulings where personal notification is ordered (NOTIFIQUESE PERSONALMENTE). This can solve the issue of timely notification and avoid wasted trips to the court only to find no news and to come back perhaps “manana.”
This practice does have the result of backfiring on the attorneys as notarios and other attorneys are cracking down and now are refusing to receive notifications unless they’ve made a prior arrangement with the attorney as they don’t want to accept liability for receiving a notification which starts the clock ticking and then cannot reach the attorney and sometimes don’t know who he is, as he is a friend of a friend of a friend, etc. Also maybe an attorney or the secretary will accept (notification of) the ruling and be notified but then they may delay (for good cause such as not knowing where the attorney is, or not) in informing the attorney or litigant and the clock starts ticking.
How does one prevent this? The best way is to use an attorney or law firm who is either located in the area of the court (Chapala / Ajijic) or has enough attorneys / messengers / law students to be able to make regular trips to the courthouse, sometimes a few times a week to check the file to make sure no hearings have been scheduled or time periods started.
In larger areas there are services that we good attorneys pay for where we get an emailed list every morning of all cases where new rulings are issued. This way we don’t have to send people to check the court file for nothing and the service also lets us do name searches so we can see if a person has been sued frequently and advise our client appropriately about entering into contracts with the person.
On the acceptance of the lawsuit by the court (SE ADMITE) you will see at the end if you will be notified by ESTRADOS. This is important to keep on your attorney if you are ordered to be notified that way to not miss an important date or time to act.