Litigation Process

Each case is unique, and the actions that each party, attorney, witness, judge and juror may take during the case is highly unpredictable. Such unpredictability rattles some clients and opposing parties. However, good attorneys relish the challenge. And while actions within each case are unpredictable, cases tend to consist of the following identifiable phases.

The Pleadings Phase

The primary objective of the Pleading Phase is to identify and allege the issues (called ”causes of action”) that the court will determine. If the plaintiff, the person who first files a claim in court in a document called a complaint, fails to plead an issue that he or she wants the court to determine related to the cause of action which is pled, the plaintiff may waive the issue, with some exceptions. Similarly, if a defendant fails to raise certain defenses to a cause of action pled by the plaintiff, the defense is generally waived.  A defendant may also allege any claims he or she has against the plaintiff and other defendants named in a complaint and related claims against persons who were not named in the complaint.

Selecting the right causes of action and defenses if you are defending a law suit filed against you is even more important. To properly plead a case or defenses for you, the client must provide all information respecting the relevant issues related to the dispute. We then review the information and determine the possible causes of action or defenses which may apply.  If you are a defendant, we also determine if the plaintiff who filed the complaint or others may be liable to or instead of you, in which case claims may be filed against any or all of them.  If you are one of several defendants and a determination is made that other defendants are liable to you, a cross claim may be filed against the other defendant(s).   If you are a defendant and a determination is made that other persons who are not already defendants are liable to you, a third-party complaint may be filed against the non-parties.

There are many causes of action and defenses which are reviewed to determine if they apply.  Then, we seek additional details from you, the client, to plead the cause(s) of action or defenses with the level of specify generally required by the courts. To get a better sense of the complexity of civil pleading, we maintain a database of nearly 100 common causes of action and a database of defenses in Florida. Numerous less common causes also exist.

Once the complaint is prepared, we file it with the court along with other required documents. Then neutral third-parties are employed to serve the complaint on the defendants. Generally, the law requires that the complaint and related documents be placed directly into the hands of the defendants.   If a client is a defendant who has a claim against someone who is not a party to the suit, a third-party claim may be filed, and the same process must be followed.  Some defendants and third parties will try to hide to delay or even avoid the lawsuit. In some instances, this can be a very time-consuming process. If a client is a defendant who has a claim against the plaintiff a counterclaim against the plaintiff is filed and can be served directly on the plaintiff.

Once served with the complaint or cross claim, the defendants will have a limited amount of time either to ask the court to dismiss the other party’s pleading or to provide written defenses to the complaint or cross claim. If a counterclaim is filed against a plaintiff or a third-party complaint is filed against someone not named in the original complaint, they, too, have a limited time either to ask the court to dismiss the other party’s pleading or to provide written defenses.  If a party fails to provide written defenses on a timely basis, the court will eventually rule in favor of the party making a claim. IF YOU ARE A DEFENDANT OR THIRD-PARTY DEFENDANT IN A CASE, YOU NEED TO IMMEDIATELY OBTAIN AN ATTORNEY SO THAT HE OR SHE CAN TIMELY RESPOND ON YOUR BEHALF. If the defendants or third-party defendants provide written defenses, the person against whom the defenses were alleged may be required to similarly respond to the claims and defense of the defendants or be considered to have waived responses.

The Discovery Phase

The primary objective of the Discovery Phase is to identify the evidence that will support each party's claims and defenses. While the Discovery Phase can begin as soon as the complaint is filed, it generally does not begin in earnest until after the Pleadings Phase has completed. Discovery consists of each party

demanding documents from parties and non-parties, written answers under oath from parties and testimony (called depositions) from witnesses and the other parties in the law suit. Depositions may be costly affairs; however, they are very important because they may obtain evidence directly from the person with the most direct information. Attorneys use the testimony gained in depositions to better understand the case and to lock in the testimony of the parties and witnesses for trial. If at trial a party or witness subsequently testifies differently from how he or she testified in a deposition, the attorney will use the deposition testimony to discredit the witness by showing that the statement at trial may be a lie, but is at least unreliable. Changes in testimony can significantly reduce the likeability and reliability of a witness at trial.

Expert witnesses are important components of many cases. Their job is to provide technical information which regular folks generally do not possess. Examples of such types of information are many, and include how a particular machine works, standard practices within an industry, the causes of physical injuries, etc. Expert witnesses are not neutral parties, but rather are employed by the parties to provide differing viewpoints to support each party’s case. The deposition of expert witnesses by the opposing attorneys is often a critical part of the Discovery Phase.

Often, the party from whom discovery is demanded will assert that the party demanding the information is not entitled to it. As a result, the Discovery Phase often requires many hearings in front of the judge or a magistrate to determine to which discovery each party is entitled. This is usually a time-consuming effort, and the court has broad discretion to decide which information a party will be given.

The Settlement Phase

Many clients have the misperception that a case is not initiated until after settlement fails, and that once a case is initiated, no settlement can occur. In reality, settlement can happen at any time before or during the case. In fact, the vast majority of civil cases settle.

People try to avoid unpleasant matters. Prior to litigation, defendants often avoid offering reasonable terms, or even negotiating, with the hope that the other party will simply give up and go away. At the same time, Plaintiffs often make demands that are far higher than a court would likely determine. Many defendants will appreciate that they must resolve a matter only after a case is filed against them. The threat of a court imposed judgment is a powerful motivational-tool. Therefore, in most cases, litigation is a necessary step towards settlement.

Settlement occurs either through direct settlement negotiation between the parties and their attorneys, or through mediation, which may be voluntary but which, if not undertaken voluntarily, is usually ordered by the court. Mediation is third-party-assisted negotiation. In mediation, a neutral third-party, called a mediator, tries to lead the parties to a settlement agreement. A mediator is not a judge. The mediator cannot require the parties to settle and cannot enter a ruling regarding what should happen in the case.

Rather, the mediator tries to lead each party to understand why the party’s demand may be unreasonably high; why particular facts may appear more beneficial to the other party; why the judge might rule in the other party’s favor on an issue of law; that while a party might get his or her dream result at trial, there is a significant risk that the judge or jury could just as well return a much less favorable result; and that the time and cost of further litigation would be wasteful where the parties could simply settle on a reasonable result at mediation. In many courts, the judge will require the parties to attend at least one mediation, in the hopes of settling the matter and thereby reducing the court’s workload.

Settlement is most effective once the parties have a clear picture of what potential results are likely at trial. Sometimes this will be clear early in the case. Other times, one of the parties may be uncertain whether sufficient evidence will be found to prove causes of action of defenses. Still other times, there may be issues of law that are unsettled, requiring a ruling from the judge before the parties have clear expectations regarding what will likely result at trial. Even where the parties are initially unable to settle, there are often additional settlement attempts, usually resulting in eventual settlement to avoid the judge or jury from imposing an uncertain result upon the parties.  Once the parties have a common (if unspoken) understanding regarding the range of possible trial-results, settlement is the safest, fast and most cost-efficient means of resolving a case, and avoiding an uncertain trial-result.

Of course, even after extensive discovery and judicial rulings, sometimes the parties will still have utterly different points of view regarding how the facts and law will play out at trial, preventing settlement and leading to trial.

The Pretrial Phase

The primary objective of the Pretrial Phase is to whittle down the issues in the case to make trial more efficient. For the unfortunate plaintiff, the case may be whittled down so far that there is no claim left to try. In such case the plaintiff has lost. If triable issues remain, a trial date will be set. Where a trial date is set, the parties must prepare their witnesses so that they can testify effectively in court. The parties will also organize their evidence in such a way that it will be best understood at trial. This, too, is a time-consuming process.

The Trial Phase

At trial, the attorneys present to the trier of fact (which may be either the judge or a jury depending on how the case was pled and depending on the right to trial by jury) the evidence and witnesses that the attorney believes best support the client’s causes of action or defenses. At the same time, the attorney attempts to discredit the evidence and witnesses of the opposing party. The presentation of evidence is strictly controlled by the judge. Mere procedural error can result in complete retrials of the case, fines or even loss of the case. Trials usually take several days if not weeks. Issues that may appear to clients to be unimportant often have outsized impacts on the trial. For example, the makeup of the jury can be determinative of whether they support the plaintiff or defendant. Similarly, how relaxed and/or believable a witness is when speaking in court can significantly impact how reliable they appear. Once all the parties have presented all the evidence that the judge will allow, the trier of fact will determine what in fact the evidence showed. This may take mere minutes or may require days of deliberation. Once decided, the jury, if it is the trier of fact, will inform the court of its decision.  In the end, the trial judge will enter a judgement based on fact determinations.

The Appeal Phase

Following any trial, there is usually one party (and sometimes both parties) that is displeased with the result. Consequently, appeals of trial court decisions are common. An appeal asks a higher court to look at the evidence in the case and the rulings by the trial judge to determine if the trial judge’s judgement was incorrect. The period in which to appeal after a trial court decision is short. Appeals neither require nor allow witnesses to give additional testimony or new evidence to be presented. Rather, the attorneys will prepare detailed documents to present to the higher court to either support or criticize the lower court's judgment. The higher court will not reverse a judgment with which the court simply disagrees. Rather, the higher court will generally only reverse the trial court’s judgment if it finds that it was incorrect as a matter of law or the trial judge abused his or her discretion. Sometimes even when the trial court’s decision is incorrect as a matter of law or the trial judge abused his or her discretion, the appellate court may, nonetheless, affirm it without opinion.  The result of a successful appeal may be the granting of more-favorable judgment, or may require that the parties try the case in the lower court all over again. Once all appeals are exhausted, there are usually no further options to alter a trial court’s judgment.

The Collections Phase

Another area of misconception for many clients is the Collections Phase. Obtaining a final judgment gives the prevailing party a right to the result stated therein. However, it does not usually cause the result to happen. For example, where the judgment awards money damages to the plaintiff, the judge

does not actually take the money from the defendant and give it to the plaintiff. The court will assist by requiring the losing party to answer questions regarding where his or her assets are located. However, it is the job of the prevailing party to now find the losing party’s assets to cover the judgment amount.

Where the losing party is a large corporation, or has insurance covering the winning party’s claims, collection is usually very straightforward. However, if there are insufficient funds available, or if the losing party successfully hides money or otherwise protects his or her assets against collection and no evidence of the losing party’s deceit is found, the prevailing party may go unpaid. Even where assets are found, they may not be collectable. For example, a piece of

real estate may be homestead property which is constitutionally protected against a judgment, or may be jointly owned with a spouse, preventing the prevailing party from taking the property.  Even where the losing party is a company, the company’s asset may not be recoverable; for example, equipment may be owned by the losing party, but an existing lien on it in favor of a third-party may prevent the prevailing party from recovering against the equipment.

Due to privacy laws, it can sometimes be difficult to determine the assets of an opposing party prior to judgment. However, the better the client understands the finances of the opposing party, the greater the certainty the client will have that any judgment will be collectable. The uncertainty of collection is yet another reason that even parties with strong legal claims may choose to settle; in doing so, the settlement agreement can be drafted to provide a security interest in the other person’s property and to require receipt of the money prior to terminating the case, thereby alleviating the risk of non-collection.

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