Our philosophy in the EPGD litigation team is to avoid litigation.
Many disputes, even complex legal disputes, can be resolved through out-of-court negotiation or mediation. Remember that over 95% of cases are resolved before ever going to trial. Whether it’s simply picking up the phone and hearing where our opposition stands or sitting face-to-face outside of the courtroom explaining how both sides can benefit from a compromise that avoids unnecessary added expense, a rational conversation could settle a dispute. However, parties often cannot agree without the pressure of litigation, and when necessary, we will aggressively pursue our client’s claims all the way through trial. When litigation is unavoidable the main focus of our team is receiving the best outcome for our client, as quickly as possible, while keeping costs low and teaching our client how to better protect themselves or their organization in the future.
When the parties aren’t willing to settle, a lawsuit can take over a year, and the added expenses could include process servers, court reporters, experts, mediators, additional damages the court finds fit, even if we don’t specifically request them, along with costs, sanctions, and even attorney’s fees. That’s right, there is the possibility that the defeated party will need to pay the judgment and all of the costs and attorney’s fees of the prevailing party.
A civil case is broken up into four stages, Pleadings, Discovery, Motions, and finally the Trial. Below is a simplified version of the breakdown of a civil case.
During the Pleadings Stage, the parties define the dispute and the defenses. The Plaintiff files a Complaint which describes their claims against the Defendant. The Defense can then either answer the Complaint or move to dismiss it. A Motion to Dismiss is typically a challenge to the technical sufficiency of the Complaint. Victory in a Motion to Dismiss normally leads to the Plaintiff simply filing a new Complaint and correcting whatever technical deficiency the Defense argued. Once all Motions to Dismiss and amendments have been exhausted, the Defense files an Answer, which admits or denies each individual statement in the Complaint and Affirmative Defenses, which provide legal excuses for the Defense’s actions that lead to the claims of the Plaintiff.
The Defense may also file their own claims. Each claim has a different name: if their claim is against the Plaintiff, it is called a Counter Claim; if their claim is against a Co-Defendant, it is called a Cross Claim; if their claim is against a Third Party, it is called a Third-Party Claim. Whoever the Defendant’s claims are against, also have the right to move to dismiss and will eventually have to answer, if not dismissed.
Once all claims have been answered, the case is said to be at issue. This stage of the case can take several months. While it is not as costly as some other stages, there is significant briefing of the legal issues that will impact the remainder of the case.
Once the parties know what the claims and Defenses are, they can conduct discovery. This consists of three things, asking for documents, asking written questions and taking depositions. Questions and documents requested can be sent to parties and nonparties. Once the parties have obtained written discovery, they use those documents to form the basis for the questions they ask in depositions, interrogatories, and requests for admissions. This is typically the most expensive and time-consuming stage of the case as there are often arguments on what should or should not be turned over.
Although there are many motions filed in a lawsuit, the case typically builds to one or more Motions for Summary Judgment. This is a motion where the court can decide the case, or a portion of the case without submitting the case to the jury. We use the information obtained in discovery to seek summary judgment. Typically, one party attaches depositions and documents to demonstrate to the court that certain facts are not disputed. If enough facts are agreed to, then the court can make a legal ruling as to who wins. If the parties disagree to the facts, then only the jury can decide.
The trial is the final stage where a jury decides the facts and declares one party the winner. Here the jury makes determinations of fact and credibility. The judge meanwhile decides what law the jury should apply. This is a fairly short stage. It typically takes about two weeks including preparation time. However, during that time client and counsel are usually working together 10-12 hours per day. As such, the costs are very high and concentrated. It is for this reason that so many cases resolve shortly before this stage.
OK—So once we get a judgment (either from Default, Consent, Summary Judgment, or trial), if we are the Plaintiff, how do we get paid? This is obviously the most important part for a Plaintiff, and the worst aspect for a Defendant. Collections is its own process with the main uncertainty being that the Defendant(s) may be “uncollectable.” There are various tools, including demanding a financial disclosure, continuing with post judgment discovery to attempt to locate assets, doing private bank account searches, hiring private investigators, and even asking the Court or the Sheriff for assistance. This process can also be long and arduous. Fortunately, there are some mechanisms to request attorney’s fees. It is important to understand that the Judgment might be just the first step.
Having an innovative and experienced litigation team in your corner can make all the difference in representing and protecting your interests.
Here is some advice to prepare you for any upcoming depositions that arise from your litigation:
- Share all concerns and pertinent details with your attorney ahead of time.
- Review all important documents. These will include anything drafted and signed, petitions and answers, and deposition transcripts.
- Know where to go, what time to go, and how to get there.
- Know what to bring.
- Know the ground rules:
- Tell the truth
- Listen to and consider each question carefully
- Do not volunteer information
- Do not let attorneys put words in your mouth
- Review all documents before discussing them
- Do not be afraid to say that you do not know or do not understand something
- Do not feel pressure to keep talking
- Ask for breaks
- Leave your cell phone in the car
- Do not pass any notes to your attorney in the middle of a discussion
- Do not speak to your attorney in the middle of a discussion