ANATOMY OF A LAWSUIT – A Brief Primer For Clients

What To Expect With Your Lawsuit

In the personal injury field, there are essentially three outcomes to sending a demand package with an offer to settle a claim. One, the insurance company for the tortfeasor makes an offer to resolve the case which is satisfactory to the claimants; Two, they make an offer which under the circumstances is not reasonable and must be declined; or, Three, they refuse to make any offer at all, denying any liability whatsoever on the part of their insured. In scenario one, if the offer is accepted, the case is closed, end of story. However, when either of the other scenarios develop, the client has the option to continue negotiations in the hopes of achieving a resolution to the matter, forgo any claim, or file suit. In other words, it is decision time. In your case, we are now at one of the stages wherein a decision must be made whether to forgo the claim or to file suit. While I am certainly going to help you analyze some of the pros and cons of your case, the following material will help you gain an understanding of what can lie ahead. Thus, the purpose of this brief essay is to familiarize you with what may lie ahead so that you can incorporate the process to which you will be exposed into the calculus of making your decision to forgo or go forward.

Much has been written by better writers than I about the various stages of a lawsuit. Books, treatises and articles abound by seasoned trial lawyers and judges on all aspects of litigation. A trip to any local library or bookstore will provide you with ample reading on the topic. However, as my client, I want you to know my thinking, my perceptions and my outline of how things will happen after a lawsuit is filed.

Perhaps the most important thing for a client to know is that this will take some time. A lot of time. I would even go so far as to say for the layperson, an unreasonably long time. Therefore, you must be prepared at the outset to allow this process to work however slowly. Quite possibly, a case could last anywhere from eighteen months to two years. It may last longer. It may not. But, you must be of the mindset that it will take a long time so you do not get overly frustrated and aggravated with the process. While there are legal techniques and tools which can be used to speed up a lawsuit, I advocate that slow and steady wins the race. Remember here the story of the tortoise and the hare, and as the case moves forward practice patience with me, the defendant, the opposing attorney or attorneys, and the court system.

After you make the decision to file a lawsuit, I will spend several days preparing the papers that are filed with the court. You are labeled as a Plaintiff, while the party who is being sued will be the Defendant. First, I will prepare a Summons for each defendant in your case. The clerk will sign this document instructing a defendant that a response is required within a certain amount of time. Along with this, I will prepare the Complaint. This is the document that outlines, among other things, your grievance with the opposing party or parties. Often, preparing the Complaint will involve conducting additional investigation, performing legal research and the editing of several revisions before a finalized product is produced. Prior to filing, you will be given an opportunity to review the complaint and accompanying documents.

A party is required to respond to the Summons and Complaint, in most cases, within twenty (20) days. The final documents that generally accompany the Summons and Complaint are Interrogatories and Requests For Production of Documents. The Interrogatories are written questions to the defendant or defendants to which answers are given. The Requests For Production are a series of requests to the defendant or defendants for documents, papers and other items. Generally, when these two forms of written discovery are filed with the court at outset of the case, the opposing party will be allowed forty-five (45) days to respond. If filed some time after the Complaint, the responses are due within thirty (30) days. Many times, an extension of time will be granted by one party’s attorney to another party’s attorney for additional time to respond.

At some point, the defendant’s attorney will send you Interrogatories and Requests for Production. You will have thirty (30) days to respond, unless an extension is requested. At the outset of a case, long before the court system is invoked into a case, clients are steadfast in their resolve to file a lawsuit. While I may firmly support this decision, clients are usually completely unaware of the invasion of privacy that will flow forth from such an action. It is during this phase of the lawsuit, commonly known as Discovery, where the invasion occurs. Both the Interrogatories and the Requests for Production will strive to elicit from you very personal information. Some topics will include your prior medical history, previous marriages and your criminal history. You will probably be required to provide your tax returns for the last several years. It is not uncommon that a client expresses anger and amazement at some of the questions and requests. However, this is all a part of what you, as a plaintiff, can and should expect. I, as your attorney, will do what I can to raise objections where appropriate, but be advised that there is only so much that the law will protect. What is not protected will be discoverable. Now, I don’t mean to say that you should not file a lawsuit because of what may exist in your past. I only bring this aspect of the process to your attention because this can have an active role in helping you to reach a decision whether to file suit.

Following this initial written discovery, it may be necessary for I and the opposing attorneys to send other written discovery to people and entities that are not a party to the lawsuit. This discovery is comprised generally requests for documents, and are known as Requests For Production of Documents to a Non-Party. We may send such requests to the defendant’s employer or medical doctors to find out things about his work record or medical history. The defendant will likely send requests to all of your doctors. When I say all of your doctors, I mean all of them, not just the physicians that treated you for the incident over which the lawsuit is filed. They may also send requests to your employer, and your former employers in an effort to find information in your past which will negatively impact your claim against their client. Again, I will do what I can to object, and even file a motion with the court to prevent the release of things that are inappropriate, if necessary.

In addition to the written discovery discussed above, your lawsuit will progress to the point where the attorneys will begin to schedule depositions, another form of discovery. A deposition is a semi-formal engagement wherein the attorney for one party will ask questions to the other party. The person who is answering questions is the deponent. During this phase of the case, I will depose the defendant, and the defense attorney will depose you. I may also depose the police officer, or the witnesses to the collision. The defense lawyer may depose your treating doctor, your childhood doctor and even your spouse. At a deposition, a court reporter will be present, and he or she will take down every question and every response. Ultimately, a transcript will be produced and provided to the attorneys in the case. The depositions serve to memorialize a person’s testimony, and often will even be used against that person at trial, especially when the trial testimony differs from what was said at a deposition. Prior to your deposition, we will meet to discuss what you should expect.

At some point during the discovery process, either I or the opposing counsel will file a Motion To Set with the Court. This document informs the court that the parties wish to meet with the judge who is presiding over the case to schedule the case for trial. At the motion to set hearing, or when the parties meet with the judge in his chambers (known as ex parte), not only will a trial date be set, but a mediation will likely be ordered and a mediator selected. Finally, during the hearing or ex parte on the motion to set, the court will schedule a date for the pre-trial hearing of the case.

A mediation is a formal gathering of the parties in a neutral location wherein settlement talks take place. While most cases do go through the mediation process at some point, not all of them will. In a case where an insurance company, and their attorney, have disputed liability, there may be no need for a mediation. This is because when a party does not believe they are at fault, they will not be making an offer of settlement. So, under such circumstances, the trial of a case will be focused on proving or disproving who is responsible as well as the extent of that responsibility. When mediation does occur, all of the parties, all of the attorneys, and a representative from the insurance company will gather together in a conference type room. A mediator will make some introductory remarks, as will any and all of the persons present. As your attorney, I will make an opening statement similar to what would be done at trial, only in an abbreviated form. The defense counsel, and possibly the insurance adjuster will also make some opening remarks. After the initial statements, the parties will break out into caucuses. This simply means that we will go into separate rooms. The mediator will then move from room to room discussing settlement options with all the concerned parties and attorneys. Hopefully the mediation results in resolution of the case during the mediation day. If not, the second hope is that the case will be resolved after several more days of discussions. When all discussions and negotiations fail, the next step is to proceed to trial.

Should you ultimately decide to file a lawsuit in your case, in the coming days, weeks and months you will see the slow development of the above process. Again, I encourage you to be patient. As time progresses, we will continue to discuss the various developments in your case, the strategies for putting forth your claim, all the while preparing the matter for presentation to a jury. As we move forward, remember that I am here to assist you with this course of action and bear some of the burden for you. To this end, you are free to contact me at any time to discuss your case.

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