Filing a Lawsuit

It may be necessary to file a lawsuit to obtain an fair and equitable recovery. Before filing a lawsuit I will obtain your permission and explain to you why I believe a lawsuit should be filed.  Usually, the circumstances will either be closeness to the statute of limitations or the insurance company is refusing to offer a fair settlement.

Although a lawsuit may have to be filed, settlement is always possible. In over 90% of the time cases are settled before or during trial.  The keys to obtaining a favorable settlement are preparing vigoriously for trial and for the client to remain active in the case.

The following are the steps of a lawsuit.

A. Pleadings

    Pleadings are the documents parties file in court that form the basis of a lawsuit. This is intended to be general information only. Each case is unique.     

• Complaint or Petition. A lawsuit is filed against an opposing party by filing a document in court known as a complaint or petition. The person who brings the action is the plaintiff - you. The person against whom the action is brought is the defendant. The petition is a statement of facts alleging the names of the parties and alleging why the conduct of the defendant entitles the plaintiff to recover damages.
• Summons. Once the plaintiff's petition is filed, a "summons" is issued to be served on the defendant by an officer of the Court, usually a Deputy Sheriff or process server, informing the defendant that suit has been filed and that a response must be made within a given period of time or a judgment will be taken against him.
• Answer or Motion. The response filed by the defendant is called an Answer, which is prepared by the attorney for the defendant. Alternatively, if a defense attorney feels there is a fatal flaw with the lawsuit a motion to dismiss the complaint or to strike portions of the complaint may be filed

B. Discovery

Once an action is filed, both sides have a right to "discover" facts concerning the opposing party's case. Normal discovery proceedings include written interrogatories, depositions, production of records, requests to admit, protective orders and sometimes medical examinations.     

• Interrogatories: Each side may serve written questions on the opposing party, called "interrogatories". You are required to answer these questions within 28 days, in writing and under oath. I will serve interrogatories on the defendant in your behalf, and the defendant will serve interrogatories on you, which you must answer. I will assist you in preparing your answers.
• Depositions: A "deposition" is an oral and transcribed statement, under oath, which may be used by either side in a lawsuit. It has the same effect as testifying at trial. It is used to learn as much as possible about the other side's claims or defenses. Those present are the parties concerned, their lawyers, sometimes an additional witness or two, and a court reporter who records the questions and answers.
  
  The lawyers normally agree in advance where the deposition will be held. It is usually in the office of one of the lawyers or at the offices of the court reporter.
  
  You are required by law to give a deposition. This is not something in which we have a choice. Because of this, we will need your full cooperation. Prior to the deposition, your lawyer will go over the facts of the case with you and answer any questions you might have.
  
  YOUR DEPOSTION IS OFTEN THE MOST IMPORTANT PART OF YOUR CASE. It is important that you be prepared well in advance of the deposition date.

In giving a deposition, there are a few rules to follow:

     

• Always tell the truth, even if it hurts your case.
• Answer only the questions. Do not make any voluntary statements or speeches.
• Think before you make any answer to any questions. If it concerns a matter about which you do not know, or a detail you do not remember, you may so state. However, once you have stated that you do not know or remember, it's hard to change your testimony at trial.
• Always be polite.

Frequently the other attorney will ask you many questions which will seem to you to have no bearing upon the case. Nevertheless, it is your duty to answer these questions, notwithstanding the fact that they may irritate you. Never conceal prior injuries or prior illnesses. Remember, the other side has the means of obtaining such information.

Mediation

There are occasions when the parties submit the dispute to "mediation". The parties meet with an independent third person, usually an experienced lawyer or retired judge, who assists the parties in arriving at a settlement. The results are not binding. It is informal, and less expensive than a trial. If that is an option to your case, your lawyer will discuss it with you.