How Lawsuits Work

Settling out of court is far less expensive than a trial. Unless you know for a fact that you have an ironclad case, you stand the risk of spending large amounts of money and getting nothing in return. No satisfaction, no restitution, nothing. The best first step of any potential lawsuit is to try to work out your disagreement outside of court. The courts agree with this wholeheartedly and in some states require some sort of dispute resolution before you can even bring a case to trial. Even if you do have an ironclad case, you need to weigh the costs of litigation with the potential award you might (or might not) get after a trial.

Here are some ways you can try to resolve your dispute without involving lawyers and large sums of money. You have three general paths to take to avoid the court room.

Face-to-face Negotiation

First, you should try a good old-fashioned face-to-face conversation with your adversary. Is he even aware of the problem? Does he acknowledge responsibility? Have you tried to come to an agreement about how to remedy the problem? You may be surprised at how reasonable the person is. If you do come to an agreement, you should probably have it documented and each sign it with witnesses present. And it's best to have an attorney draft it up to make sure you haven't left any loopholes.

Mediation

If you've tried your own negotiation and gotten nowhere, then you might consider mediation. In mediation, you and your adversary come together with a neutral third party who tries to help you work out an agreement. A mediator does not have any say in how the mediation turns out, he only provides advice about your options and how you could come to a fair agreement. He helps you arrive at a solution. In some courts, you are required to go to mediation before you can bring a lawsuit to court. You don't have to come to an agreement, but you have to go through the process and try. This requirement is an effort to reduce the number of cases that go to court. Some contracts you sign may also require mediation before you can file a lawsuit in the event of a dispute.

If you do arrive at a solution in mediation, you can make it legally binding by writing up a mediation agreement that each party (and usually the mediator) signs. The agreement spells out the decision that was made as well as intentions for future behaviors that both you and your adversary are required to follow. By having a signed agreement, you can make the outcome enforceable in court.

Mediation fees vary a lot. Depending on where you live and who your mediator is, you may pay as little as $50 (or nothing) for mediation, or you may pay $200 to $300 per hour. Mediator training varies a lot, too. Some may be volunteers who have backgrounds in social work or similar fields, some may be specially trained for mediation in specific areas like divorce, and some are lawyers who mediate on the side.

Arbitration

Another form of dispute resolution is arbitration. Arbitration is similar to mediation in that you come together with your adversary and a third party to discuss a solution to your problem. The difference is that the third party, known as the arbiter, makes a legally binding decision on your case. Arbitration is more like litigation in this respect -- you lose control of the decision. The arbiter's decision, called the "award," has to follow the law. If the arbiter doesn't apply the correct laws to the decision, then a judge may overturn it. You are also allowed to have counsel at an arbitration. If you know your adversary is bringing an attorney, you should, too.

So when should you go to arbitration? Since arbitration is based more on the legal issues and less on the personal issues of the case, it is usually recommended for cases that involve money rather, as opposed to a case about a neighbor who keeps blocking your driveway. Cases like that are best settled in mediation, if possible.

Arbitration does cost more than mediation, however it is still less than going to court. Like anything else, it depends somewhat on where you are geographically. Typical half-day arbitration may cost both you and your adversary anywhere from $500 to $1,000 each.

There are different types of mediation and arbitration. For instance, you can have nonbinding arbitration, which means that if either party doesn't like the decision, it isn't binding. You can opt for high-low arbitration, which means you and your adversary establish upper and lower limits for the monetary award. (For instance, an insurance company would suggest a low amount and the individual with the complaint would suggest a higher amount.) The arbiter isn't told about the limits. If his or her decision is lower than the low number, then the low number is used, and if it is higher than the high number, the high number is used. If the decision falls within the limits, then it becomes the actual amount of the award.

Many other variations are possible, as well. For more information, go to The WWW Virtual Library: Private Dispute Resolution.

Looking for an Attorney

If neither mediation or arbitration works for you, then you begin your search for a good attorney. The best bet is to get recommendations from friends, family, business associates, or the local bar association. You should talk with several attorneys before you settle on someone. Look for experience in the area of your dispute and litigation experience, as well as interest in your case. If you need a very aggressive attorney, then watch the attorney in the court room and get a feel for his style. How well you get along with the attorney is also important because communication between the two of you is crucial. If you don't feel comfortable with the person, you may not be able to communicate with him effectively.

Also remember that, in the event that you make a poor choice, you can always change attorneys. You would still have to pay any fees and reimburse for costs, and the initial attorney may have a right to part of any award you eventually earn.

If you've determined that a lawsuit is your only option, and you've found the perfect attorney to try your case, then you're ready to get those legal gears turning. In this first stage of the lawsuit (known as the pleadings), your attorney writes a document (called the complaint) that:

You (the plaintiff) and the person you are suing (the defendant) are known as the parties of the lawsuit. There can be more than one person on either side of the suit. In fact, there can be many defendants and many plaintiffs. For example, you and some of your co-workers might decide to sue the company you work for. If you all have the same complaint and seek the same outcome, this will work fine, and you will all save money on legal expenses. If not, you need to file separately. In cases where there are potentially hundreds of plaintiffs, then a class action suit may be considered (see About Class Action Lawsuits).

There are two court systems in the United States -- state court and federal court. If your case involves someone from another state (known as a diversity case) and has a value over $75,000, then it MAY go to federal court. If your case involves some sort of federal law or right (known as federal question), it can also go to federal court. Federal question is more fully defined as "jurisdiction given to federal courts in cases involving the interpretation and application of the U.S. Constitution, acts of Congress, and treaties. Other than that, you'll probably go to state court. Unless, of course, your case involves both federal and state laws, in which case you can go to either state or federal court.

How do you determine where the suit will be filed? If you are seeking monetary compensation of less than $5,000 (in many states), you can take your case to small claims court. In small claims court, there is no jury, and you can't bring an attorney, although you can meet with one prior to the court date. The process is quick and a lot less complicated than in other courts. Since states differ in their rules on what qualifies for small claims court, check with your local Clerk of Court to find out what the requirements are in your area.

For larger cases, there are different levels of courts. These different courts have different jurisdictions. The decision of where your case will be heard is either out of your hands, because there is a legal requirement that the suit be brought to a particular court, or your attorney gets to recommend one.

If the attorney has the choice of courts, then, in addition to considering where the case should be heard (geographically), whether the case should be heard in state or federal court, and at which level it should be heard, the attorney will also consider other aspects such as how convenient the court is, who the judge is, how quickly the court can hear the case, how complicated a court's process is, etc. It is here that the attorney's knowledge and experience with local courts and judges can come in handy.

Once the complaint is completed, it is filed in the selected court. This really gets the ball rolling -- and it gets the attention of your adversary, now known as the defendant. The filed complaint has to be delivered to the defendant. This is called service of process. In addition to the complaint, the defendant will also be served a summons. The summons explains what the defendant needs to do as a result of the complaint. This whole process is usually referred to as serving the defendant.

Sometimes it is difficult to track down the defendant. When this is the case, constructive service is necessary. This means the documents can be mailed to the defendant's workplace, last known home address, and/or posted in the newspaper under the "Legal Notices" section.

The Defendant's Response

Once the defendant has been served, he must respond to your complaint within 20 to 30 days (depending on the jurisdiction) by filing responsive pleadings. One type of responsive pleading is called an answer. In that document, the defendant might totally deny the complaint, deny certain parts of it, point a finger at someone else not named in the complaint, point out technical problems in the complaint itself, etc. In other words, an answer's purpose is to somehow modify the complaint.

Motions

If the Defendant's responsive pleading isn't an answer, then it must be in the form of a motion. A motion introduces some other question to the court that the judge must rule on. Motions can be filed at any time during the trial up until the final judgement is made. The party who initiates the motion is called the mover, and the other party is called the opposing party. When one party files a motion, the opposing party can file a request for the judge to deny the motion. For example, the defendant may file a motion to dismiss if:

Countersuits

The defendant may also file a countersuit against the plaintiff, which makes the plaintiff the counter-defendant. This begins a new complaint process; however, the two cases will be heard as one lawsuit.

If the defendant's response isn't filed within the allowed time (usually 20 to 30 days, but can be less in some courts), your attorney may ask the judge to enter a default judgement, meaning that you will be awarded everything you requested in the complaint. However, judges often allow the defendant additional time to file responsive pleadings if there is a good reason for not getting it done on time.

Once the pleadings are filed, discovery begins.

All of the legwork in gathering facts and evidence for a case is known as "discovery." While each court may have different discovery rules, the basics are the same.

Discovery is the act and procedure of gathering every bit of evidence and information, no matter how trivial it may appear, from both parties involved as well as others outside of the suit. It can be information about the facts of the case, documents that may be important to the case, background information on the parties involved, names of others who might know more -- pretty much anything. Information from a conversation that would never be admitted in court can be part of the discovery process. The justification for this is that it might be possible to gain true evidence as a result of the knowledge gained from a discussion among the defendant, witnesses, or others related to the case.

There are some things, however, that are protected (privileged). While these vary greatly from state to state, here are some that might apply:

To save time and money, some judges may require that each side of the lawsuit turn over all basic information it has regarding the case. In addition to this, attorneys gather information through requests for production of documents, requests for admissions, depositions, interrogatories, and requests for independent medical examination (IME). The judge will often schedule conferences during the discovery stage. These can cover things like the status of discovery (i.e., whether it is moving along as it should be), settlement potential (i.e., whether there is a chance for settlement at this stage), or resolving any discovery disputes that may be arising.

Motions also can be filed if any of the discovery requests are not being met. For example, a motion for more responsive answers can be filed. This type of motion requires documentation of each discovery request, the response, and the reason the response is inadequate.

If either party of the lawsuit doesn't provide information he is supposed to provide, then the judge can also impose a sanction against him. This means he will fined for not providing the information. The sanction can be against either the attorney or the client. It depends on which person is refusing to provide the information.

The whole purpose of a trial is to resolve disputes about the facts of your case. If neither party can dispute the facts, then a motion for summary judgement can be filed. A summary judgement means the judge looks at the facts, applies the law, and makes a ruling -- saving you both a lot of time, money, and anguish. If there is any dispute about the facts, then the judge will deny the motion. In other words, there is no reason to bring a case to trial unless there is evidence that should be heard by a jury.

Other motions include:

Before a case can go to trial, discussions take place for settlement out of court. This is by far the most frequent resolution for civil lawsuits. This is often the stage when mediation takes place. When you settle, it usually means that each side is giving in on something. For example, maybe the defendant will admit to being negligent when he put in an inadequate drainage system for his pond's overflow pipe after it washed away your driveway, but he may not agree to drain the pond as you are demanding. You, on the other hand, may get your driveway rebuilt along with a better drainage system to ensure it doesn't happen again. Your demands for lost wages while you couldn't get your car out of your driveway to go to work may have to be dropped, or could be a point to negotiate further.

Some of the things that have to be considered during this stage include:

Settlement discussions can actually happen at any time -- the earlier the better if you want to save on attorney fees. Most often, settlement discussions take place when some big piece of evidence turns up that will greatly affect the outcome of a trial one way or the other. Other times, settlement discussions occur right before the trial or when the other party files a motion that could affect what you might ultimately get out of the case.

Negotiating a Settlement

If you do decide to try to settle, you can either have your attorney draft a formal offer of settlement strictly based on your terms, or you can sit down with the defendant and negotiate.

By now, you and your attorney should know about all of the facts of the case as well as have a good feel for how the defendant feels about the case and possible outcome. If you decide to sit down and try to negotiate a settlement, you should first plan a strategy. Keep in mind that if your offer is totally one-sided, it won't be accepted, just like in any type of negotiation. Some of your strategy will, of course, depend on the facts of the case and how strong your side of it is. Since you've gotten this far in the process without the case either being decided by a judge or else totally dismissed, there must be some disputed facts that require a trial. Sitting down and discussing those discrepancies with the defendant may or may not get you anywhere.

Here are some pointers for the negotiation table:

What Will the Settlement Cover?

A settlement ends the lawsuit. In doing that, it also lays out the different points that the plaintiff and the defendant have agreed on, such as how much money is going to paid by whom to whom, how/when/where that money will be paid, what actions will be either forced or prohibited, who is paying court costs, etc. It also will usually state that this case cannot be resurrected with a new lawsuit based on related issues. These things all would be specifically spelled out in the written document known as the dismissal with prejudice, notice of dismissal, or sometimes the stipulation for dismissal. Once this document is completed and signed, the defendant is "released" from the lawsuit.

If you've gone through all of the pre-trial requirements (discovery, motions, negotiations, etc.) and still haven't settled your case, then it's time to accept that you're going to court. In some states, at this point either your attorney or the defendant's attorney (if the defendant has also reached this conclusion) files a memorandum to set trial date (this is also sometimes called a motion to set trial date or an at-issue memorandum). This document can include information like the details of the case, what your demands are, whether you want a jury trial or bench trial (see below), any recent settlement offers you've had, and an estimate of how long you think the trial will last. Note that these types of procedures vary a lot from state to state. In some states there is simply a mandatory status conference at a specified time after the suit is filed in order to set the date for trial.

There are two types of trials -- trials that are heard by a judge (known as a bench trial) and trials that are heard by a jury (known as a jury trial). Deciding which type you need may take some thought. Having a jury trial can slow down the entire process, not only because there is additional time needed for jury selection, but also because your attorney will need additional time (and fees) to prepare. There is also the time the jury must take to decide the case. A judge may (or may not) make a quicker decision. It's not unheard of for judges to delay decisions for months, while a jury might have a decision in a few hours. You never know.

Regardless of the time issue, a jury trial may or may not be what you want. If your case involves any emotional issues, then, depending on which side of those issues you're on, you may or may not want a jury to hear it. If your case will stand only on a legal technicality, then you probably don't want a jury. You could just be seen as greedy and unfeeling. If your case could really go either way, then you stand the chance of a hung jury -- meaning the trial is over but nothing is decided. Rely on your attorney's experience with the courts to determine the best type of trial.

Once you know the type of trial you need, then the trial date can be set. Some courts operate on a "direct calendar" and others on a "master calendar," and some on neither of these systems. If the court your case will heard in is a direct calendar court, then the judge you've been working with will schedule the trial and will also preside over it. If the court is a master calendar court, then you may not have the same judge. Either way, there will probably be a "trial setting conference" where both parties' attorneys meet with the judge to schedule the court date. Jury trials often have to be scheduled at later dates than bench trials because of the time involved in scheduling the jury. If scheduling conflicts later come up for either party, then there can be a request for a continuance.

Before the trial begins, pre-trial conferences are sometimes called to essentially lay out the game plan for the entire trial. (These conferences may not be necessary for all trials.) At these conferences, both attorneys go over what they will present, in what order they will present it, and any issues that will need to be presented separately in order to prevent predisposing the jury about any of the facts. In addition to the meetings, the attorneys sometimes have to submit a pretrial brief that outlines all of the facts of the case with indications of whether the facts are disputed or undisputed. The brief also has to detail their exhibits and evidence and provide a list of witnesses. The judge will also request one of the attorneys to submit a "pretrial order," which is a document that describes what will happen in the trial -- a script of sorts. Just as with the other procedures we've talked about, these vary from state to state and may not be the case in your area. In some areas, a witness list is all that is necessary.

In addition to all of the documents the attorney's have to prepare for the court, they also have to prepare for the trial itself. The attorney has to be intimately familiar with facts and details of the case and present those through the series of questions they ask the witnesses. Here are some of the things the attorney does to prepare for the trial:

Jury Selection

If your trial will be heard by a jury, then the selection of that jury is very important. Jury pools are pulled from the big list of registered voters in your area. In some courts, the judge will ask the potential jurors all of the questions, but in others the attorneys will also be allowed to ask questions. The jurors are questioned in order to screen out anyone who has personal knowledge of the case, knows someone on either side of the case, or has had a similar experience to the one presented in the case. If allowed, the attorneys may ask additional questions in order to screen out potential jurors who may not support their side of the case. The selected jurors are sworn to decide the case impartially.

As most of us know from watching Law & Order or L.A. Law, the first thing that happens in the trial is the plaintiff's attorney's opening statement (if it is a jury trial), followed by the defendant's attorney's opening statement. The opening statement is like the preview for a movie. You'll hear the highlights of the case and evidence that will be presented and get the gist of the story.

Since evidence is usually introduced through the witnesses' testimony, the order in which the witnesses take the stand and the questions they are asked must be set up with precision. In civil cases, the plaintiff's attorney is allowed to call the defendant to the stand, as well. Attorneys can also introduce evidence (if both sides have agreed that it can be introduced) by stipulation.

Questioning the Witnesses

The questioning of each witness by the attorney who called that witness to the stand is called direct examination. During the direct examination, the opposing attorney can object to the question before the witness has a chance to answer it. The attorney may be objecting to the question itself or to the way the question is being asked. For example, the way the question is asked may be "leading" the witness to a specific answer. He may also object to the question because the witness's answer would be hearsay (meaning the witness doesn't know the information first-hand).

The judge decides if the attorney's objection is justified (sustained) or not justified (overruled). If the witness answers a question before the judge has a chance to say whether the question should be withdrawn, then the judge can instruct the jury to disregard the witness's answer.

Once the plaintiff's attorney has asked a witness all of the questions he has prepared, then the defendant's attorney gets an opportunity to ask questions, known as cross-examining the witness. After the defendant's cross-examination, the plaintiff can redirect more questions. These redirect questions have to relate to the information that was brought out in the original questioning. The defendant can then recross-examine, with the same restriction that these questions relate to the original questioning.

After the plaintiff's attorney has called all witnesses, the plaintiff's case rests. Then, the defendant's attorney begins calling witnesses for the defense. The same rules apply for cross-examination and redirects. When the defendant's attorney has questioned all witnesses for the defense, then the defendant's case also rests.

Burden of Proof

In civil cases, the plaintiff has the "burden of proof," meaning, essentially, that the plaintiff has to have greater evidence to prove his case than the defendant must have to prove his -- hence the "scales of justice." If the plaintiff's evidence isn't great enough to tip the scales, the defendant wins.

For punitive damages (in most states), the burden of proof is a step higher. There must be "clear and convincing" evidence in order to win the case. This is a middle standard of proof, falling between the "preponderance" standard of most civil cases, where one side simply has to have more evidence in its favor, and the criminal standard of "beyond a shadow of a doubt."

Closing Statements

Each attorney sums up the evidence and facts presented in the trial in their closing statements (if there is a jury). No additional information can be introduced during these statements. The plaintiff's attorney closes first, then the defendant's attorney, then the plaintiff's attorney has an opportunity to make an additional statement, usually to clarify something the opposing side said. This is called a rebuttal.

The Jury

In jury trials, the judge instructs the jury members on how they should go about deciding the case (deliberating), which party has the burden of proof, how the law should be applied, and whether they have to have a unanimous vote or not. Either the jury will select its own foreman or the judge will assign one (the jury foreman takes charge of the process). The jury then goes to a private room to discuss the facts of the case and vote on the outcome.

When the jury has voted and made its decision, the members return to the courtroom and the foreman reads the verdict.

Sometimes, the jury just can't come to a decision. This is called a deadlocked jury or a hung jury, and can lead to a mistrial. If there is a mistrial, the trial is over but no one has won. In this case, the parties have to retry the case or find some other way to find a solution. Post-trial Proceedings and Appeals

Even after the trial, there are some steps to go through. Let's say the plaintiff wins the case. The plaintiff's attorney must evaluate the costs and come up with the totals in order to formalize the judgement. The clerk of court then files a "notice of entry of judgement."

The plaintiff also has to determine how he's going to enforce the judgement. If the defendant must pay the plaintiff money, then (depending on the state) the plaintiff may have options on how to collect -- this may include garnishing wages, taking assets to cover the dollar amount, or putting a lien on property.

And, while these decisions are being made, there is always the possibility that the defendant is still trying to win the case. The defendant may try to get the judge to overturn the ruling, or request a new trial based on some problem that occurred during the trial, or appeal the case to a higher court. Remember the "motion for judgement notwithstanding verdict?" If the jury's verdict was really off-base to most reasonable people, then the judge might agree to the motion and change the verdict.

For more information on lawsuits and related topics, check out the links that follow.