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The Litigation Process
This section will attempt to explain to you generally the process involved in litigation of a civil damage claim. Although each case is different and there are many exceptions to the general rules, most civil damage claims proceed through some or all of the following stages:
For a claim to be successfully settled or prosecuted through trial, it is necessary that a thorough investigation be undertaken. This investigation process begins with the first interview and if your case is accepted, it will continue until your claim is finally resolved.
At the initial interview, we obtain from you information about the circumstances of your case such as dates, times, locations and witnesses. It is important that you answer all questions completely and accurately. If at sometime after the initial conference you realize that there may have been information omitted or mistakes in your responses, it is very important that you notify us immediately. It is always better to provide us with too much information than not telling us enough.
Following the initial interview, our office staff will be responsible for investigating your case. Each member of this team has important responsibilities in preparing your case, and your full cooperation with each member is essential.
You will then meet with the attorney to fully discuss all aspects of your case, including medical and legal views. You will have the opportunity to ask the attorney any questions that you may have at this time. The attorney will then advise you whether or not he will represent you in your claim. If so, your file will be given back to the legal staff to complete the opening of your file.
After the file has been opened, it will again be reviewed by the attorney or legal assistants and they will develop a strategy for investigation and litigation. The investigation will include obtaining all relevant documentation, evidence, witness statements, photographs, medical records, etc. Additionally, experts may be hired to reconstruct the accident, examine the scene of the incident, evaluate the safety and design of particular products, review medical records to determine the standard of care, etc.
In many cases it will be necessary to proceed to file the lawsuit to obtain enough information through depositions and other discovery to be in a position to fully evaluate the case. Back to Litigation Process Menu
Once the initial investigation has progressed to a point where the attorney will be able to consider and assess the strengths and weaknesses of your case, it will be ready to be evaluated for settlement purposes. Numerous factors are taken into account when attempting to predict the range of recovery value by settlement or verdict of a civil case. Some of the factors include, but are by no means limited to the following:
We will attempt to assist you in understanding all of the factors that influence the value of your claim and in attempting to recognize a balance between the potential recovery and the risks associated with prosecuting the claim. It is our responsibility to provide you with guidance and assistance with regard to whether or not to accept or reject a settlement offer, but the ultimate responsibility and the final decision as to any settlement offer rests with you.
In certain cases, it may be possible to complete our evaluation before actually filing your lawsuit. In such cases, if we are able to reach a decision with you as to the settlement amount you would be willing accept, then we will initiate settlement negotiations on your behalf prior to actually filing your claim. It is important that we do allow sufficient time to proceed through all of the necessary medical treatment so that we are in a position to fully evaluate your damages. If you have not reached the point of maximum medical improvement from your treatment, your condition could worsen or additional problems develop which would not be considered had we not waited until the appropriate time to evaluate the damages you have sustained. Back to Litigation Process Menu
PRE-SUIT SETTLEMENT NEGOTIATIONS There are many factors which determine whether or not we will attempt to negotiate a settlement in your case prior to the actual filing of a lawsuit. As stated above, on occasion it is necessary to file a lawsuit to be able to obtain the necessary information to even evaluate your case which could not be obtained through an informal investigation. Additionally, an injured persons physical condition may not be at a point where it can be fully evaluated, however, potential success with the claim may be jeopardized if substantial time lapses until the medical condition stabilizes to a point where the evaluation can be made. We have also come to learn that particular defendants or insurance companies will not be willing to settle for the full reasonable value of the case until we are at or near the time of trial.
Your attorney is experienced in determining whether or not pre-suit settlement negotiations would be a waste of time or in your best interest. This will be discussed with you. Your attorney is also experienced in the art of settlement negotiations. He will determine the timing of any settlement demand, the amount of the demand and the appropriate way to communicate it. While it will always be your final decision whether to accept or reject any settlement, you should leave the decisions about how to get to that particular point to your attorney.
Settlement negotiations may begin at any time and there are no time limits on proceeding with such negotiations. During the course of a case, several demands for settlement will be made by your attorney and several offers may be made by the defense which are rejected. These negotiations may continue up to the time of and even after the jury returns a verdict.
It is very important that you recognize and understand that although a settlement guarantees you some recovery, it is also a compromise. Unless you are willing to give up something, you are unlikely to be in a position to obtain a settlement of your case. In most circumstances, the only way a party receives 100% of the value of the claim is to accept the risks associated with the trial. Even the strongest claim could potentially be lost before a jury and no one can guarantee success in litigation. However, if settlement negotiations are unsuccessful, we make every reasonable effort to maximize your chances for success at trial. The decision as to the settlement amount can be changed by you and your attorney up until the time an agreement to actually accept a settlement is made. The settlement demand may be raised or lowered during the negotiations. Even after rejecting one settlement offer, this does not preclude you from accepting a subsequent offer which may be higher, lower or even the same.
The process of settlement negotiations are for the most part privileged and cannot be used against a party making any statements during the course of negotiations at a later trial. This privilege is afforded so as to encourage parties to enter into settlement talks without the fear that an advantage may be obtained by one party if the talks are unsuccessful.
In MEDICAL MALPRACTICE CASES there are specific requirements set forth by Statute and by the Rules of Civil Procedure which pertain to a pre-suit evaluation for the purpose of potentially settling any claims without the necessity of proceeding into litigation. This specific procedure will be fully explained to you if your case is a medical malpractice action. However, it is important that you do recognize at what stage it fits into the litigation process. Back to Litigation Process Menu
The lawsuit is formally begun by the filing of a Complaint with the Court. This pleading sets out the general facts on which your claim against the defendant is based. The Complaint is served upon the defendant and formally puts him on notice that he is being sued and the reasons for the suit.
You will find that the Complaint usually does not state a specific amount you are suing to recover. You generally will see the Complaint states that the claim exceeds the jurisdictional limit of the court where the lawsuit is filed. Cases which are filed in State Court with a possible value over $15,000 are tried in Circuit Court. Cases filed in State Court with a possible value under $15,000 are tried in County Court. Cases which are filed in Federal Court must have a possible value in excess of $75,000.
When the Complaint is filed you will receive a copy for you to keep and review in detail. You should first check it carefully to be sure it is factually accurate and notify your attorney's staff of any inaccuracies.
When the Complaint is filed with the Clerk of the Court it is assigned randomly to a specific trial judge. This judge will generally remain responsible for all hearings and other matters relating to your case until it is finally resolved.
After the Complaint is filed it must then actually be served upon each defendant. In most cases, this is accomplished by a deputy sheriff or authorized process server, from where the defendant resides, physically handing over the Complaint to the defendant. In some circumstances this may take several attempts at locating and serving the defendant. This process may take days, weeks or even several months, but our staff will make its best efforts to see that this is accomplished as soon as possible.
Once the lawsuit is served upon each defendant, he will generally turn it over to his insurance company or attorney. This insurance company will assign it to an attorney who will be responsible to defend the allegations. If the defendant does not have insurance which provides coverage for the claim then he must hire an attorney to defend him or he must defend himself. Back to Litigation Process Menu
After service of the lawsuit, a number of different methods of responding to the Complaint are available to the defendant. One method commonly used by the defendant's attorney is filing a pleading titled a MOTION TO DISMISS. This motion is used to challenge the legal sufficiency of the Complaint and to point out technical deficiencies in the way the Complaint was drafted. This motion, as with all motions filed, is set for hearing before the trial judge, who will grant or deny the motion. If the judge denies the motion then the defendant must answer the Complaint. If the motion is granted then we must amend the Complaint to correct any technical defects. The defendant can challenge each amended Complaint and the plaintiff can continue to amend as long as the Judge allows or as long as he denies the defendant's Motion to Dismiss and requires an answer be filed.
When the Complaint is answered by the defendant, it may include any of the following:
The case is not considered to be at issue and ready to be placed on a trial calendar until the last answer is in. The time period to get a case at issue by defeating all technical and procedural challenges may vary from case to case depending on the number of parties and the number and complexity of claims made. It may take less than sixty days to have the case at issue, in some cases, however in others it may take longer than a year.
After your case is at issue your attorney will determine the appropriate time to file a NOTICE FOR TRIAL, which will allow the court to set a trial date. The case will be placed on a trial calendar scheduled generally 3 to 9 months after the notice is filed.
The exact timing of your attorney filing the notice for scheduling the trial will depend on a number of factors including: the complexity of your claim, the time necessary to complete discovery, and the particular judges scheduling (ie, whether trials are being set three months from notice or one year later). Your attorney will make that decision which will best allow your claim to be prepared and presented, giving us the best chance of success. Back to Litigation Process Menu
After the lawsuit is filed, the parties to the lawsuit have the right to proceed through a formal investigation of the issues and claims raised by the pleadings. This is known as PRE-TRIAL DISCOVERY and will generally involve a number of procedures.
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At some point prior to trial and usually after all major discovery is completed your claim will generally be submitted to a mediator for assistance in settlement negotiations. This will either be ordered by the court, on its own, or by a motion of any party.
The mediator will listen to both sides and will assist in bringing the parties to a point of compromise for a final settlement of the claim. It is not always a successful endeavor and many cases do not settle even with mediation. If a case does not settle at mediation, this does not preclude further settlement negotiations between the parties, however, in many cases, the final and highest offer may be made by the defendant at mediation.
The mediators are either retired judges or professional mediators skilled in negotiating and evaluating claims. Your cooperation will be required for attendance at the mediation and any preparation that might precede it. Back to Litigation Process Menu
Many times it is not until right before the trial date is at hand that the defendants attorney or insurance adjuster begin to realize the potential of your claim. It is at this point they will generally assess their chances of success in defeating you claim, and the potential costs of the loss to them if you are successful. Consequently, they may come forward with a settlement offer right before trial.
We are ethically bound as your attorney to inform you of all settlement offers. Whenever any offer is made, you will be contacted and it will be discussed with you. Your attorney will make recommendations, however the final decision regarding acceptance or rejection of any settlement offer must be made by you.
Once the case has been placed on the judges trial calendar this does not guarantee that it will be tried on a particular date or that it will be tried at all during that calendar period. A judges trial calendar can last for a 1 - 3 week period and may include 20 or more separate cases.
A calendar call will be held a few days before the beginning of the trial calendar period so the attorneys involved in all of the cases scheduled can meet with the judge to review the cases and schedule tentative dates for some of the trials to begin. The judge will remove settled cases from the calendar and will consider estimates of the trial time for each scheduled trial. Some trials may take only 1 - 2 days, others may require several weeks or months. The judge also may consider special problems that may exist in the schedules of lawyers, parties or witnesses. The judge will also usually try to schedule the oldest cases first as well as those cases which have been rolled over from prior trial calendars because they were not reached for trial.
When a case is not reached on a trial calendar it will generally be carried over to the judges next trial calendar where it usually will receive priority over cases set for the first time. The case will be usually tried before a circuit court judge and a jury of six men and women. The judge is there to decide and rule on matters of law, and will instruct the jury as to the law they must follow.
The jury will be made up of people from your county whose names are randomly selected from the list of registered voters. The attorneys are allowed to question the potential jurors during a process called VOIR DIRE. The judge should exclude any potential jurors that may be bias, or prejudice to any person or aspect of the case. The attorneys also have the right to excuse a specified number of potential jurors for an undisclosed reason.
The function of the jury is to hear all of the testimony and examine all of the evidence. Then using the rules of law the judge gives them, they must decide who is right and who is wrong in your case and what is a fair amount of damages to award if they find in your favor. You should have no fear of presenting your case to six of your fellow citizens. The jury system is a truly wonderful system which you should be proud of. A jury may be unpredictable but it is a fair and honest system, and it is the best system for resolving disputes in the world. Back to Litigation Process Menu
After the trial is completed and a verdict rendered, the case still may be far from over. The losing party still has the right to file various motions challenging the verdict, the legal rulings made by the judge during trial, or the propriety of the jury's deliberations.
A trial judge has the authority to order a new trial if it is believed a substantial mistake was made in the trial, however, this is not often granted. Where the judge finds there was any evidence to support the jury's verdict it will usually be allowed to stand, unless there were legal errors by the attorneys or by the courts ruling, which are deemed serious enough to warrant a new trial. Back to Litigation Process Menu
Any party during the course of a lawsuit or following trial may seek to have a legal ruling by the court which is an appropriate subject for review by an appellate court considered by filing an appeal.
If your case involves an appeal, our firm will usually assist you in locating an appellate attorney to handle the appeal. A separate retainer agreement may be required with this specialist and this fee agreement may also be contingent obtaining a successful recovery. However, in some circumstances, appellate attorneys may require a guaranteed fee. On occasion some appeals may be handled in house, depending on the complexity and time involved.
On appeal, the appellate court only has authority to review the evidence and legal issues that were already presented at trial. New evidence cannot be presented on appeal. The appeal process may take several months or even years to complete. Back to Litigation Process Menu
Once a favorable verdict is rendered by a jury, it must thereafter be entered and recorded as a final judgment for a specified amount. Even at this stage the battle may not yet be over. The defendant must pay the judgement voluntarily or a whole new process of litigation may begin in an effort to enforce and collect the judgment. A defendant who had been solvent and collectable at the time a judgement is entered still may thereafter declare bankruptcy which could destroy the value of your judgement. This problem usually will not be encountered where a defendant has liability insurance sufficient to cover the total value of the judgment.
Where an appeal is filed post trial, the defendant must post an appeal bond in order to postpone enforcement or collection of the judgement. If no bond is posted, the judgement may be enforced even while the appeal is pending.
Money judgements begin to collect interest at a rate set by statute of 12% per year simple interest (not compounded) from the date the Final Judgement is entered by the Court, until it is paid.
The collection of judgements when a defendant has no or inadequate insurance coverage to satisfy a judgement is another area of legal specialization. In most circumstances we will assist you in obtaining an attorney who specializes in collection, or depending on the complexity of the collection process involved we may assist you in house.
To enforce a judgement through collection it may be necessary to garnish the debtor's wages, seize bank accounts, or force the sale of assets to obtain the money necessary to satisfy the judgement. Certain assets, such as ones homestead, are protected from sale as are assets owned in joint names, with someone who is not responsible for the judgement. Back to Litigation Process Menu
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