What is the Litigation Process? The Nuts & Bolts of Handling Your Case
The initial steps of litigation
We are committed to helping you. Not every client wants to file a lawsuit and we customize your litigation preference based upon your needs. We handle your case from the intake to the appeal and beyond. The first step of any type of representation is to meet with you, speak to you in plain English so you understand what we anticipate we review your documents, speak to your witnesses and then based upon what type of agreement we come to, we then handle your case by implementing either through non-litigation or litigation methods. It is very important that you have all your documents ready at the first meeting, and that you are prepared to answer the questions we ask of you.
At the first meeting, we discuss with you the pluses and minuses of your case, as well as the steps we anticipate. It is also very important to come to an agreement on the terms of our representation of you and we do this through a retainer agreement. We offer several types of agreements such as pure contingency agreements, blended rate retainers, flat rate retainers, and hourly retainers. We tailor the retainers based upon your ability to pay and our anticipated efforts and costs of litigation. Call us for a consultation today at 908-626-1001.
WHAT TYPE OF LITIGATION IS BEST FOR YOU? What about a Demand Letter
Litigation is not for everyone. Instead, some of our clients prefer a demand letter. A demand letter is drafted by one of our attorneys and sent out to the other party, outlining the facts as we see them, citing to case law, and making a demand. We make this demand for our client for a few reasons. First, some of our clients do not want the head ache of going through years of litigation. Second, some client would like to resolve their dispute quickly. Third, some of our clients would like to keep the matter private. Whatever your reason, we will discuss with you the pros and cons of filing a demand letter instead of filing a lawsuit. The demand letter is usually a more cordial approach by the clients in an attempt to resolve the dispute and usually is much quicker and a lot less expensive. As part of the demand letter, we will negotiation on your behalf, keeping you aware of each step, and we will meet with the adversary if necessary. We vigorously assert your cause, explaining the merits of your case, and the demand we make is supported by facts and evidence. If and when an offer to settle comes in, we quickly speak to you about the offer and whether, in our opinion, the offer is fair and reasonable in light of our demand letter approach. This approach could take a month or several months depending on your particular case.
INITIATING THE LAWSUIT - FILING A COMPLAINT
For others, litigation is the only step that will resolve the dispute. Additionally, if the demand letter is unsuccessful, which sometimes happens, litigation may be the agreeable next step. The first step which initiates litigation is the filing of a complaint with a court of law. We will discuss with you the various courts that you can file your lawsuit, the benefits of certain venues (counties, or state v. Federal courts). We will then file your lawsuit which will outlined the facts of your case, and identify the "causes of action" which are the statutes or common law causes of action which you are suing the defendants for due to the defendants illegal actions. You are the plaintiff and the person you are suing is known as the defendant(s). As part of the lawsuit you will set forth the relief you are seeking, such as compensation, punitive damages, equitable relief (such as reinstatement of your job, undoing an act of another, or enforcing a contract entered into, as a few examples), you will also ask for attorney's fees and costs when necessary and permitted. We file the lawsuit for you with the court and the Court returns the complaint within 1-2 weeks (usually) and then the lawsuit is ready to go.
Once the Complaint is filed, we then serve the lawsuit on the defendants. Once they have been properly served, the Defendants have 35 days to file an answer. The defendants also have an option of filing a motion to dismiss your complaint because there are no facts which support your lawsuit. This is referred to as a motion to dismiss. Of course, we will oppose this motion on your behalf. Additionally, if your lawsuit is filed in state court, the defendants can also file a motion to remove the lawsuit from the state court and have it placed in federal court.
It is our estimate that your lawsuit will usually take approximately 2 years from the filing of the lawsuit, to get to a trial. It is a log process, but this is because of what we call the discovery process. Most lawsuits our office files have a permitted 390-450 days of discovery, and in almost all instances, discovery is extended between 60 and 120 days.
ALTERNATIVE DISPUTE RESOLUTION – MEDIATION & ARBITRATION
In many employment cases, the Court will refer your case to Mediation. The mediation process is a required process (in employment cases) for the parties to meet and try to resolve the case prior to spending time and money in litigation. This process typically takes place prior to any extensive or expensive discovery has taken place. The parties are afforded a mediator by the court, however, if based upon our recommendation we do not believe the mediator appointed will help the lawsuit, we often recommend a new mediator be appointed. We do this because we believe that the mediator should be well versed in employment law. The mediation process typically involves the parties (lawyers and clients) meeting together at an office to discuss the case. The mediator controls the process by placing the parties in their own rooms and shuffling back and forth between the rooms discussing the strengths and weaknesses of your case (and their case) and tries to have the parties come to a mutual settlement which makes both parties happy.
It is very important to note that the mediator is not a judge and does not provide any ruling on the merits of the case. Instead, the mediator is only there to try and find a common ground for settlement. Typically a mediator is a lawyer.
In non-employment matters, specifically in personal injury cases, the court requires the parties to attend arbitration. Arbitration is a quasi-binding tactic used by the courts much like mediation to have the parties resolve the litigation before trial. Unlike mediation however, arbitration takes place after discovery has been completed, but before trial. The arbitration takes place before lawyers assigned in each county to hear the facts of your case through arbitration submission and can even result in testimony taken before the arbitrators. The facts are presented by both the Plaintiff's lawyers and the Defendants' lawyers and a decision is made by the arbitrators placing a value (money) on your case. This value can be appealed de novo to the court and then a trial is scheduled wherein you will be able to present testimony before a jury.
Before a trial takes place, the parties engage in discovery. The discovery process is exactly that --- each side tries to learn as much as possible about the other side's case. There are typically several methods used by the attorneys in the discovery process. Initially, we will draft and serve upon the defendants' discovery tools such as Interrogatories (written questions), demands for documents, e-discovery, inspections and depositions. The extent of the discovery tools differ depending if you are in State or Federal Court, which we will discuss with you. Conversely, the Defendants attorney will also serve on you the same forms of discovery tools and you will be required to answer the discovery demands within 60 days. Once the written discovery is completed, and the parties have exchanged documents, the attorneys will schedule depositions.
What is a deposition? A deposition is a series of questions asked by an attorney of you. We will also ask questions of the defendants. The deposition takes place in our offices or the Defendants' attorney's office, and the session is recorded by a court reporter. Often, you are required to attend and often the defendants will be present during all depositions. While a deposition takes place in the informal setting of an attorney's office, the deposition is taken under oath and you and the other witnesses are sworn to tell the truth, much like in a court of law. Prior to your deposition, we will prepare you extensively. In our opinion the deposition is the most important aspect of discovery. The attorneys will evaluate not only what you say, but how you say it and whether your testimony or the other's testimony is consistent with the discovery in the case.
DISCOVERY and DISPOSITIVE MOTIONS
During the discovery process, many times the parties must file motions against the other side. The motions are to compel the other side to do something or to not do something. Typically, the motion is heard before the Judge who will make a decision as to which side is correct and the judge will compel the other side to produce discovery, documents, emails, or witnesses for testimony.
After all discovery has been completed, typically the defendants will file a "Motion for Summary Judgment" to have your lawsuit dismissed. A motion for summary judgment is a motion telling the Judge that despite all the proof you have identified during the discovery period, your case is not strong enough to go to a jury. The motion is heard before a judge and the Judge makes the decision on the Motion. The judge may dismiss some, all or none of the complaint. If the Judge believes that you have proven your case based upon the law, you are permitted to then proceed to a trial. The fact that the Judge has agreed with you that there is enough facts to proceed to a jury does not mean you automatically win. It does mean however you will get to proceed to a jury and tell the jury your side of the story. In certain situations the Plaintiff may also file a motion for summary judgment. Typically, if the judge grants a plaintiff's motion, the case then goes before a jury for a determination of damages (money).
YOUR DAY AT TRIAL
They say that 98.2 % if all cases settle. In our experience, most cases settle on the court room steps. If the case does not settle, however, there is a trial before a jury of your peers. Before the trial, however, the parties engage in a pre-trial exchange of exhibits, lists of witnesses, jury charges, jury voir dire questions, and in limine motions. In limine motions are basically motions in which the parties ask the judge to rule on evidentiary issues (for example: The court should not allow the doctor to testify, or, the court should not permit the plaintiff's prior criminal history).
During the trial, we ask that you be involved in each and every step. We want you present when the judge decides the motions in limine, when the jury is selected, and if the judge hears any motion to limit or dismiss you case. We consider you an integral and important part of the trial process.
At trial, you will have the opportunity to tell the Jury your side of the story, but the defendants will get to exam you and try to impeach you, discredit you, or limit your ability to recovery money. At trial we will call witnesses in support of your case, and will make opening and closing arguments telling the jury not only what the case is about, but what we intend to prove, and why the jury must believe your version of what happened. The jury will consider the facts, evidence and testimony and render a verdict.
After the jury rules, either party can ask the judge to change the ruling if it believes the jury was unreasonable. The judge may reduce the amount of money awarded, may order a new trial, or may change the verdict. Generally, the judge will only do this in exceptional circumstances.