People and businesses sue each other for a tremendous variety of reasons. Some examples come immediately to mind: someone hurt in a car crash suing the other driver; a plumber suing a customer for not paying the bill; a dispute between neighbors over the property line. Lawsuits are never fun. However, sometimes they are necessary. Please note that what is being discussed here does not include criminal cases, divorce or paternity cases, and modifications thereof, and certain specialized areas of the law, such as worker’s compensation or intellectual property cases. Those cases are discussed elsewhere on this web site or are handled by other attorneys. Please feel fee to contact me for additional information.
If you, or your business, are being sued, you may already have a lawyer available for almost nothing. If the lawsuit is accusing you of negligence, which is a fancy word for making a mistake that supposedly harmed someone else, and you have home owners, renters, automobile, general commercial or professional liability insurance, then there is a good chance that your insurance company will provide you with a lawyer and pay any judgment or settlement against you. All you might have to pay is your deductable. The first thing you should do if you are sued is to contact any property or casualty insurance companies with which you have, or recently had, an insurance policy.
If you are being sued, it all starts with the summons and complaint being served on you by a process server. You should respond by filing an Answer with the court, and sending a copy to the other side, within 20 days. If you have insurance that might cover this, contact your agent and/or the claims office for the insurance company right away. If not, start looking for a lawyer. If you can’t or don’t want to hire a lawyer, contact the lawyer representing the plaintiff and ask for more time to file the answer. They will usually give you more time.
If you are thinking about suing someone, the first thing you need to do is gather together all the documents and other things that are related to the problem an organize them. Chronological order will do for now. Next, you need write a summary of what happened that includes a time line. Then you need to talk to some lawyers. Most lawyers nowadays will give you the first meeting, about ½ to 1 hours, for free. Lay out your information and tell your story within that amount of time. You won’t get any advice if you talk through the whole meeting.
Answer the lawyer’s questions and take notes about what the lawyer says. Ask about the legal fees and how they are paid. If you are suing because you have been hurt in an accident, the lawyer might take the case on a contingent fee. A contingent fee is where the lawyer gets a percentage of any money generated by the lawsuit instead of getting paid on an hourly rate basis. If the suit you want to bring does not fall into the contingent fee category, find out what the lawyer charges per hour and try to get an estimate for the total cost of handling the case. Be aware that the legal fees for bringing a lawsuit vary dramatically from case to case. At this early stage, the lawyer estimate is just an educated guess.
Unless you already know who you want as your lawyer, you should meet with several before you decide. Pick someone who has experience in the kind of lawsuit you want to bring, is up-front about what it will or could cost and with whom you feel comfortable working.
If you have done your homework, as suggested above, then you will be able to give your lawyer most of the information needed to start suit right away. However, every case is different and, depending on the law that applies, more initial investigation may be needed. Once your lawyer has all the information needed, he or she will draw up a complaint, a summons and the various other documents that are needed to begin your case. The number and nature of the documents needed to begin a lawsuit can vary a great deal depending on the kind of case it is and which court will be used. Make sure you understand all the documents being used, especially any that you must sign.
The papers needed to start the suit, along with a check for the filing fee charged by the court, must be filed with the court to begin the case. The court will assign a docket number and provide a date or dates on which various events in the course of the lawsuit should happen. Copies of the papers filed and a summons must be served on each of the persons or organizations named in your lawsuit. Your lawyer will arrange for a process server to do that job.
The person(s) and/or organization(s) being sued will usually have 20 days to respond. It is common for lawyers to informally agree on extra time for that response. The most common form of that response is called an Answer.
Once the complaint has been served and an answer received, the next phase of most lawsuits is discovery. Discovery is the term used for the information gathering and exchange phase of a lawsuit.
Discovery is not done in every lawsuit. Simpler cases where the facts are not really in dispute might not require any investigation or formal information exchange. The court rules specify how you can get information related to your lawsuit.
One method of discovery is called a deposition. A deposition is questioning a witness, or potential witness in a lawyer's office long before trial. Any notary public, most lawyers are also notary publics, can summons a witness to answer questions. This is a great way to find out what a witness knows and how good a witness that person will be long before trial. As you might imagine, knowing in advance what a potential witness will say makes planning for the trial much easier.
Another discovery method is sending written questions, called interrogatories to other parties in the case. Those other parties in the case must answer those questions in writing. Interrogatories cannot be sent to witnesses who are not also parties (a plaintiff or a defendant) to the lawsuit.
Parties to a lawsuit also have the right to examine places and things, including medical examination of a person in some cases, that are important to the case. Examples of this are going on land where there is a border dispute or a medical examination of someone hurt in a car accident.
Once the discovery phase of the case is complete, it is time for the trial. The practical reality is the vast majority of civil cases settle before, sometimes right before, trial. A settlement is just that. Everybody settles for something less than they want. The advantage of settling is that you remove the risk of something much worse happening at trial. No matter how strong the case, there is always a certain degree of unpredictability in a trial. A settlement gets rid of that risk in exchange for getting a less than perfect result. It has been said that the best settlement is one where everybody walks away a little unhappy.
If there is no settlement, then the case goes to trial. If it is a jury trial, the first thing done is picking the jury from a larger group of people called the jury pool. You and you lawyer will participate, along with the other parties in the case and their lawyers, in picking the jury. Please see the section on the trial on my criminal defense page for more detail on picking a jury. After the jury is chosen the judge will usually tell the jury a little about the case and will give the jury some preliminary instructions on the job of the jury and how the case will go.
Next thing is the opening statements. An opening statement is a description by lawyer, or by a party if the party does not have a lawyer, that lays out what that lawyer or party thinks their case will look like. It is often called a road map to help the jury make sense of what they are about to see and hear.
After opening statements, the plaintiff, the party that filed the lawsuit, will call witnesses to testify and will put exhibits into evidence. The court rules that govern questioning witnesses and putting exhibit into evidence are many and they are complex. A very big part of what lawyers do is study those rules so they can get the evidence they want in front of the jury at trial. If you don't know the rules, then you might not be able to get the information you need the jurors to know into evidence. If your important information is not presented to the jury, you are likely to lose the case.
After all the witnesses have testified and all the exhibits are in evidence, the lawyers, and/of those parties that don't have lawyers, get to speak to the jury in what is called closing argument. Closing argument is simply a summary of the case from the point of view of each party combined with a request that the jury do what that party wants. Usually, the party that started the case wants the jury to order the party or parties on the other side to pay money, to do something they have refused to do, like hand over a piece of property, or to stop doing somethng they have been doing, like trespassing on a disputed portion of land.
After all the closing arguments are done, the judge reads to the jury detailed instructions on the law that applies to the case. This step is often called charging the jury. The actual legal instructions that are given are called the jury charge.
After the judge is done giving the jury the instructions on the law applicable to the case, the jury goes to a room to discuss the case and decide what to do. This step is called jury deliberation. Once the jury has decided, they come back into the courtroom to announce their verdict. In Massachusetts, the verdict is in writing and is given by the for-person of the jury to the clerk of the court. The clerk then reads the verdict out loud to make it a part of the official record of the court.
If the verdict does not go your way, and the reason it did not go your way is because somethiing was wrong about how the trial was run, you might be able to get the verdict overturned in an appeal. Appeals take a long time, are expensive and usually don't change anything. Even when you "win" an appeal, all you usually get is the chance to try the case all over again. Do not appeal the case unless it is absolutely necessary.
Even if the jury gives you gobs of money or otherwise does exactly what you want, the battle may not be over. The other side may refuse to pay or follow the orders of the court. Courts don't like to be disobeyed. The judge will usually be happy to help you grab assets, find the other side in contempt and even throw people in jail if they refuse to obey. However, a really determined opponent can slow things down, cost you time and money and, sometimes (by declaring bankruptcy, for example) make it impossible for you to collect. That is why one of the first things you do, when thinking about filing a lawsuit, is check out the ability of the opposing party to pay the money or obey the court order that you are looking to get. It makes no sense to sue someone for a million dollars is they are unemployed and living in a homeless shelter.
Copyright © 2016 - Peter C. Alessio - All rights reserved.