"Discourage litigation. Persuade your
neighbors to compromise whenever
you can. Point out to them how the
nominal winner is often a real loser -- in
fees, expenses, and waste of time. As
a peacemaker the lawyer has a
superior opportunity of being a good
man. There will still be business
-July 1, 1850-Abraham Lincoln
While it is easy to conceptually agree with Mr. Lincoln, there are many reasons to seek the advice of a lawyer prior
to filing a lawsuit. For instance, you need to know what your rights are and may never know without the assistance of
a lawyer. Also, a lawyer can be of much value prior to litigation because once a lawyer is retained, the other side
knows you mean business.
We realize that many times by the time one gets to a lawyer they have exhausted any means of resolving a case
without court intervention. Nevertheless, our philosophy is to always attempt to contact the other side prior to filing a
lawsuit. Litigation is an expensive process and it also has an emotional cost. It is amazing how many times a letter or
phone call from a lawyer can resolve a matter. When a lawyer contacts an adversary, they should now know you are
serious. Alternatively, many times the other side is non-responsive to a request to settle out of court or has
unrealistic expectations. It is at this point that litigation is typically unavoidable.
Our approach is to prepare every case for litigation from the moment it enters the door. Therefore, when you come
see us you should be as prepared as possible. The following paragraphs are intended to be a guide to let you know
how civil litigation works. And, to let you know what you need to consider in order to be prepared for litigation.
Following is how we will begin our preparations:
-fact investigation, we will want to know everything we can about your case, you should bring all printed materials
when you come for your initial consultation
-in depth assessment of liability, damages, client background, parties (conflict check), defenses, counter-claims,
statutes of limitation, witnesses, records, evidence, your goals
-at this point we will be able to make a recommendation to proceed or not
-if we proceed and decide to take the case, a written client engagement letter will be entered into between our firm
and you, this letter will cover the work we will do, our fee, our fee schedule, retainers, costs, and billing practices
-should we proceed we will review the materials above
-we will begin creating a litigation chart, will prepare the pleadings and file the case to begin the litigation
Litigation is defined as a legal proceeding in a court; a judicial contest to determine and enforce legal rights
Below we outline the litigation process and provide a brief overview of what is invloved
The Complaint (Federal) or Petition (State)
Generally, litigation begins when the plaintiff files a petition with the court and sends a copy of the petition (by
service of a summons) to the defendant. The petition explains what the defendant did (or failed to do) that caused
harm to the plaintiff and the basis upon which the defendant should be found legally responsible to the plaintiff.
The defendant is given a specific amount of time to file with the court an answer to the petition. The answer explains
the defendant's side of the dispute. Sometimes, the plaintiff responds to the defendant's answer by filing a reply. In
some instances, in lieu of an answer or reply, a party may request that the other party clarify or correct deficiencies in
its factual allegations or legal theories, and this may lead to amended petitions or amended answers. Once the
parties have settled on a petition, answer, and reply, the case is said to be "at issue," which means that the issues for
resolution are now defined.
Discovery is the method by which parties gather relevant information from each other or from third parties. Discovery
is the longest part of the case: It begins soon after a lawsuit is filed and often does not stop until shortly before trial.
During discovery, the parties ask for information about the facts and issues of the case. Information is gathered
formally through written questions (known as interrogatories), requests for documents, and requests for admission
(which ask a party to admit or deny statements of fact).
The use of depositions, in which witnesses are questioned under oath and in front of a court reporter by the parties'
attorneys, is another key method of obtaining information. Depositions sometimes may be used at trial to show
inconsistencies in a witness's story or to question the witness's credibility. Depositions sometimes also may be used in
place of a witness who is not able to attend trial in person.
Often a claim or defense requires support from expert witnesses to explain technical information or validate an
argument. Experts are many times necessary and are usually expensive. One or more experts might be needed to
testify about the connection between the defendant's conduct and the loss suffered by the plaintiff or the existence
and amount of the plaintiff's damages. Expert witnesses work closely with a party's representatives and attorneys to
prepare the party's case.
Before trial, the parties may use motions to ask the court to rule or act. Motions usually pertain to law or facts in the
case, but sometimes they seek clarification or resolution of procedural disputes between or among the parties. Some
motions, such as the motion for summary judgment, which asks the court to dismiss part or all of a plaintiff's case or a
defendant's defense, dispose of issues without trial. Other motions might ask the court to order a party to produce
documents or to exclude evidence from trial.
We believe the trial is little guys only ways left of getting justice in our county and that is should be fought for at all
At trial, the parties present evidence in support of their claims or defenses to a jury and/or judge. Immediately before
trial, each party provides to the judge a document, called a brief, that outlines the arguments and evidence to be
used at trial. In a jury trial, both parties question potential jurors during a selection process called voir dire. Once the
jury has been selected, each party presents its outline of the case in an opening statement.
Evidence is then presented. Each party may call witnesses or introduce documents and exhibits in support of its
arguments. The plaintiff presents evidence first, then the defendant. Sometimes, the plaintiff is allowed to present
additional evidence, called rebuttal evidence, after the defendant has finished presenting its case.
Once all the evidence has been presented, the parties give their closing arguments. After closing arguments, the
court instructs the jury on the law to be applied to the evidence. The jury then deliberates and reaches a decision or
A party may challenge a jury's verdict. Errors of law committed by the trial court or a jury's disregard of law or
evidence are common reasons for challenging a jury's verdict. A motion for judgment notwithstanding the verdict asks
the court to disregard the jury's verdict and enter a different decision. A motion for a new trial asks the court to set
aside the jury's verdict and order a new trial of the case.
Following trial, a party dissatisfied with the result may seek an appeal. During an appeal, a party asks another court
to review the trial court proceeding. The parties present their arguments in briefs, which are submitted to the
appellate court along with the record of evidence from the trial court. An appeal can extend the litigation process by a
year or more.
The appellate court usually reviews a case for legal error only. Except under unusual circumstances, the appellate
court will not review factual evidence or disturb a jury's findings of fact. The appellate court announces its decision in
a document called an opinion. The appellate court will affirm the verdict if it finds no error. If an error is found,
however, the appellate court may reverse the verdict or order the trial court to conduct a new trial.
The process of litigation can take a long time. It is a costly process, but sometimes very necessary to get the justice
a party deserves. Your averasries should know you have a lawyer that is prepared to see the process thought to the
|If you have a case that you would like for use to evaluate, please CONTACT US 24
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