WASHINGTON, June 7, 2015 − You have a dispute. Someone did you wrong. You are not getting paid for work performed. Your landlord is being ridiculous. You have been injured. Defamed. Your neighbor is putting a fence on your property. (Without your permission.) Your boss did not pay you overtime you earned. Your credit card company is refusing to fix the payment problem it has been causing you for the last six months.
Civil disputes abound, and unfortunately, not all of them resolve amicably with the other party. Whether you file a lawsuit or find yourself being sued, an understanding of the legal process involved is critical to assure that this process does not give the other side the advantage or even an undeserved victory.
Here is an outline of what happens when going to court becomes necessary:
Lawsuits begin with filing the suit in the local courthouse. Know in advance that all states have rules that govern how civil lawsuits proceed. There are requirements that must be satisfied and time limits that must be met. Often, failure to comply with any of these otherwise “procedural” concerns can kill parts or all of your case.
A lawsuit is a written statement by the person suing that must set out several basic concepts.
- First to be stated is the identity of the parties − the plaintiff is the person suing and the defendant is the person or entity being sued;
- Next to be declared is the jurisdiction of the court, or the power of the court to hear the case, and venue, or the geographic appropriateness of the lawsuit.
- States have “jurisdictional monetary limits” such that in the lower level courts (often called district courts) the claim cannot be more than a certain monetary amount, say $25,000, meaning a claim for more than $25,000 cannot be heard in that court because that court does not have jurisdiction. Some states require, or allow, a claim for the specific monetary amount being sought in the lawsuit.
- Venue requirements might prohibit filing a lawsuit in a particular jurisdiction. An auto accident case, for example, must be filed either in the jurisdiction where the accident happened or in the jurisdiction where the defendant lives.
- A proper lawsuit will next state succinctly what happened to occasion the suit − obviously known as the facts − and it will set out a theory of law that justifies filing the lawsuit. Again, using an auto accident as an example, a plaintiff might state that the defendant struck him when he was stopped behind a red light, and that the defendant failed to follow the law of the jurisdiction that requires drivers to pay attention, travel at an appropriate speed and stop before striking other stopped vehicles.
Once filed, a lawsuit must be served, meaning that the individual being sued must be physically given a copy of the lawsuit. This usually occurs after a sheriff or other authorized person approaches the individual and asks a simple question such as “are you John Smith?” You respond “yes,” and the authorized person “serves” you with the document. We often see this scenario on television.
The documents being served tell the defendant what he or she must do: typically, either appear in court to contest the matter or file with the court a written answer within a specified time period, typically 21 or 30 days.
If the defendant does not appear in court or does not file an answer with the court within the required time period, the plaintiff automatically wins.
Once the answer is filed, “discovery” begins. Today’s litigation process is not about surprises. Everything deemed “relevant” or even “discoverable which could lead to the discovery of relevant information” is fair game and must be disclosed by both sides when asked to do so.
There are typically four discovery methods employed to enable the other party to find out about your claims:
- First, written questions, called interrogatories, can be sent to you and you must answer them. The questions can be inquiries about your background, the facts of your claim, your damages (the harms and losses you claimed), witnesses, documents and things (photos, videos, emails) you have to support your claim as well as any and all other things that in any way arguably can assist the other side in learning about any aspect of your claim.
- Second, a document often called request for admissions can be sent to you. Multiple statements of fact will be presented to you in this document, and you must reply “yes” or “no,” or something akin to “I don’t know.” One example might be “Do you agree that you ran a red light on the date of the accident?”
- A third discovery tool is the request for production of documents and things, the title of which is essentially self-explanatory. In your response, you must supply all documents and make all things available for inspection that in any way relate to the matters in the lawsuit.
- The fourth discovery tool is the deposition, wherein the other party is allowed to require your attendance at a specific place and at a specific time to ask you questions. A court reporter (a stenographer) will be there to take down all of the questions that are asked along with all of your answers. The purpose of the deposition is to elicit information and to see if later, when you actually testify at trial, your responses match the answers you gave in your deposition. If they do not, you will be accused of lying, resulting in your credibility and probably your case being torpedoed.
Discovery has time limits. The failure to reply can result in having the answers that would have been provided deemed most favorable to the other side, or worse, a summary judgment for the other side, meaning they win outright.
Other discovery tools beyond the three discussed above, might include a mandatory physical or medical examination by the other party’s expert or doctor. If you, for example, are claiming damage to property, the other party would have the right to inspect that property. If you are claiming an injury, the other party would have the right to have a doctor of their choosing examine you.
In today’s high tech world, a “physical” exam could even involve a computer forensics expert examining your computer.
Statistically, most lawsuits that are filed do not end with courtroom trials. Most lawsuits end with compromised settlements or dismissals for various reasons.
It is clear that filing a lawsuit is a last resort. It is usually better from both a financial and an emotional standpoint to try to resolve the matter first.
When a lawsuit is filed, courts often require alternative dispute resolution, which can include mediation or arbitration. These alternative methods have served well in resolving disputes and saving the parties involved extensive time, money and psychological torment.
However, the often shady reality of arbitration as it exists in our country today is another important topic that will be addressed next week.
In conclusion, when it comes to filing a lawsuit, always consider first that, even though you have the right to do it, that does not necessarily mean it is wise to do so.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His new book “Who Will Pay My Auto Accident Bills?, The Most Comprehensive Nationwide Auto Accident Resolution Book, Ever” can be reviewed on http://www.completeaccidentbook.com and can be ordered there, or obtained directly on Amazon: Click here to order
Mr. Samakow’s “Don’t Text and Drive” campaign, El Textarudo, has become nationally recognized. Please visit the website http://www.textarudo.com and “like” the concept on the Facebook page http://www.facebook.com/textarudo.