Litigation Crash Course

The legal process can be bewildering. This is sometimes because the attorneys fail to educate their clients about the nature of the legal system, and why things happen the way they do.  Cross & Associates goes to great lengths to educate its clients in the legal process. This is a necessary element of our shared decision-making approach, in which the client takes an active participatory role in the direction of the case. Accordingly, we have developed the following summary of the mechanics of civil litigation for your benefit, called the Cross & AssociatesLitigation Crash Course .

The Four Basic "Phases" of a civil lawsuit

   The way civil cases are processed ("civil procedure") is actually quite logical. Much of the confusion can be eliminated by thinking of the life cycle of a civil lawsuit in four segments, or "phases." They are: (1) Pleadings; (2) Discovery; (3) Trial/Arbitration; and (4) The Post-trial phase.

. The "Pleadings" Phase    

   The first thing that happens in a civil lawsuit is the pleadings. Although the term "pleading" has a number of definitions in the law, the pleadings are essentially the parties' accusationsagainst one other. The pleadings are comprised of general allegations, many of which are mere "legal boilerplate" that will be augmented or even dropped before the conclusion of the matter.

   The plaintiff's initial pleading is called a Complaint. It is filed with the court, and is the document that initiates a civil lawsuit. It is accompanied by a Summons which demands the defendants' appearance in the case.

   The defendants' initial pleading can be in the form of an Answer, a Demurrer or a Motion that attacks the sufficiency of the plaintiffs' Complaint. "Answers" are generally comprised of a set of boilerplate accusations against the plaintiff and her case, many of which often have no bearing on the case. A Demurrer attacks the Complaint on technical grounds, such as the failure to properly state the claim.

   The parties may or may not have solid evidence in support of each of the allegations in their pleadings. The evidence is developed and exchanged during the "discovery" phase described below.

Tip: Ask your attorney what happens during the "pleadings" phase of a case, and see if he/she takes the time to provide a thorough, clear explanation

2. The "Discovery" Phase    

   Discovery is the exchange of evidence between the parties. It is done with a variety of different devices, depending on the type of evidence sought. It is each party's attempt to determine what evidence, if any, exists in support of the allegations in the adversary's pleadings. Discovery is intended to narrow the issues for trial, but unfortunately, it is a very abused process.

   Since the vast majority of civil lawsuits settle before trial, discovery is likely to be the most labor intensive phase of your case-both for you and your attorney. Done properly, it may require you to spend many hours sifting through paperwork and having conferences with your attorney. You may also be required to appear at a deposition, which is an interrogation session in which you must give testimony under oath. Conscientious attorneys provide their clients with written instructions on how to be a better deposition witness.

Tip : Ask the attorney you are interviewing whether he or she will conduct a mock deposition with you to help you prepare for your deposition.

3.     The 'Trial/Arbitration" Phase

   Trial and/or arbitration is the process of "fact finding." The "trier of fact" (judge or jury or arbitrator) hears the evidence, and attempts to decide which parties version of the facts is true. Its link to the first two phases of litigation is often overlooked: trial is the presentation of the evidence gathered during discovery that is intended to prove the allegations in the pleadings. (See alsoAlternative Dispute Resolution .) The plaintiff has the burden of proof. If she fails to meet her burden, the defendant wins, even if the defendant didn't show up for trial!

   However, if the plaintiff effectively proves each of the allegations in her Complaint, and the defendants do not successfully prove the allegations in their Answer, the court will award a verdict in the plaintiff's favor. The verdict will typically include a dollar amount, for "damages."

   Most cases do not go to trial; they settle. (See Settlement .) Nonetheless, there are still hundreds of trials that take place in each state every year. The litigants are often surprised by how long it takes to get a trial date. Finally, after months or even years of waiting, the trial date for a case draws near. In most cases, especially in larger metropolitan districts, cases will get continued one or more times before the actual trial begins. The continuance can last from 1 day to 1 year, depending on the size of the court's case load. False starts are not uncommon either.

4. The "Post-Trial" Phase    

   Believe it or not, a lot can happen with your case after the trial is done. First, the parties may try to collect money from one another; this is called "Enforcement of Judgments," and can be a legal specialty unto itself. Second, the results of the trial may be appealed.

   An "award" from a trial court does not necessarily mean that one party will receive anything from his opponent. Fortunately or unfortunately (depending on which side you're on), a judgment or verdict from a trial court does not generally constitute a "court order" to the "guilty" party to pay money. Instead, it is merely a finding of fact , e.g., that a debt exists.

   Additional steps may be necessary post-trial to force a Defendant to pay. In some cases, this process can require a substantial amount of paperwork and investigation. A party with a judgment in their favor can seek to have the judgment enforced by a levy of the debtor's bank account, attachment of the debtor's property, garnishment of wages, etc.

   Frequently, a plaintiff's contract with an attorney will not include judgment enforcement services. In other words, just because you win the case does not mean your attorney will actually collect the money for you. Commonly, you must hire an attorney or a collection service to enforce the judgment. Depending on the difficulty of collection, the fee for enforcement of the judgment may be substantial. The delays and costs of enforcing judgments create yet another strong incentive to settle a case.

   An appeal is process by which a party seeks to have a ruling of a court overturned. It is difficult to be successful in appealing a decision. The mindset of the appellate courts is to leave the judgment as it stands, unless there is a truly compelling reason to do otherwise, such as an abuse of discretion by the trial court.

   The process of appeal is very different from trial. An appeal is not a trial. In other words, the appellate court does not decide what happened between the parties before they got to court. This is because the "trier of fact" has already determined what the facts were, and the appellate court does not want to second guess the trial court. There is no jury in the Court of Appeals, and the appellate court does not listen to testimony from witnesses. Instead, the appellate court analyzes the record and the appellate briefs of the parties to determine whether the trial court made errors of law .

   Appeals can take years. The party who brings the appeal (called "the appellant") generally has two levels of appellate courts to try. In state court, the appellant can bring her appeal before the court of appeals, and if unsuccessful there, before the Supreme Court of the state. In certain limited circumstances, the appellant may be able to proceed to the United States Supreme Court in Washington, D.C., but this is rare. However, a party who has lost in the State Supreme Court is generally out of luck, and has no other court in which to seek relief.

Settlement

   Settlement is a negotiated resolution of a case, usually involving the payment of money by defendant(s) to plaintiff(s). Juries render verdicts-not settlements. You are never under any obligation to settle a case. However, good attorneys will urge you to settle your case if they see that it is in your best interest. Good lawyers recognize the benefit to settlement and strive to overcome the obstacles to settlement.

   Well over 90% of civil lawsuits settle, and never go to trial. There are many good reasons why cases settle, two of the most important of which are:

1. Trial is Expensive

   In most cases, it costs both sides less to settle a case than to go to trial. Trials are very expensive. They frequently require each side to hire expert witnesses who charge $2,000 to $5,000 per day to appear in court in addition to attorneys' fees. Often, expert witness fees are not recoverable from the other side, so the costs of experts alone creates a strong incentive to settle.

2. Trial Can Be Risky

   Trials are risky because they are unpredictable. Many great cases have lost at trial-often for unjustified reasons or the personal bias of one or more jurors. Hence, as a plaintiff, you may be best served by accepting a reasonable settlement offer. Moreover, as explained in the Trial and Post-Trial sections, above, just because you win at trial does not mean you will ever get paid. The following example illustrates the relationship between settlement offers and trial outcomes that many plaintiffs do not understand:

   On the other hand, trial may be the best solution for your case. Your adversary may never recognize the benefit of settlement, and never make you a reasonable offer, in which case, you and your attorneys must be fully prepared-legally, financially and emotionally-to proceed to trial. The preparation for trial often takes years, and is loaded with deadlines, so it continues even when active settlement negotiations are underway. Remember, settlement negotiations are fragile. They frequently fall apart, and if you are not fully prepared for trial, you will get burned.

Tip: Ask the attorney you are interviewing whether he furnishes his clients with verdict and settlement reports of comparable cases to help them predict the reasonable settlement value and trial outcome of their cases.

   Settlement is a business decision that should be made based upon the realistic economic future of the case. Many lawyers have trouble letting go of "pie in the sky" dreams about their cases, and do their clients a disservice by failing to advise them to accept good settlement offers. Many litigants fail to recognize the additional value of the resolution of a case in that it ends the aggravation, tension and burden of litigation.

   The law firm of Edward H. Cross & Associates spends extensive amounts of time with its clients in assessing the relative value of their cases, with an eye toward settlement, so as to allow the clients to get on with their lives.

Alternative Dispute Resolution: Arbitration and Mediation

   Many individuals (even attorneys!) do not understand the important distinction between arbitration and mediation. Arbitration and mediation are forms of alternative dispute resolution ("ADR"). ADR has grown in popularity over the years, because it allows a quicker and less expensive method of resolving disputes.

   Arbitration is a process whereby a decision is rendered by an arbitrator , who is a judge or third party hired to arbitrate the dispute. It is very similar to a trial, except it is much less formal, and is not normally conducted in a courtroom. There are two types of arbitration: binding and non-binding. The decision in binding arbitration carries the same effect as a verdict rendered by a judge. Non-binding arbitration allows the parties to thereafter proceed to a court trial if they so wish.

    Mediation does not result in a decision. It bears no resemblance to a trial, and there is no judge or jury present. Hence, there is no such thing as "binding" mediation. It is simply a negotiation process in which the parties attempt to reach a voluntary settlement of their disputes. Think of it like marriage counseling for litigants. The only resolution that can come from mediation is a voluntary settlement, which normally involves the payment of money.

   ADR is big business. It is generally conducted by a private organization that charges lofty fees, often $500 per hour or more. This cost is usually shared between the parties. If it appears that mediation, for any reason, is highly unlikely to result in a conclusion of the dispute, the parties generally will not agree to it (unless forced to). Thus, if a matter proceeds to mediation, there is often an unofficial assumption that the parties are willing to negotiate…at least a little.

   Mediators and arbitrators are human, and humans have biases and prejudices. Frequently, the parties have the opportunity to select the mediator or arbitrator for the case. It is important to select a mediator or arbitrator who is likely to be sensitive to your predicament. This requires a thorough background check, beyond the basic materials prepared by the mediator to sell his services.

Tip: Ask your attorney what methods she uses for checking the background and bias of a proposed mediator, other than the standard resume provided by the mediation service.