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WHAT IS A LAWSUIT?

A lawsuit is a civil legal action brought in a court. Typically one "party" is suing another party for money or other property. (The term "party" can include individuals, businesses and government agencies.)

The person suing is typically called the "plaintiff"; the person being sued is the "defendant".

Lawsuits sometimes also involve an action to "enjoin" (a legal term than means "restrain" or "stop" ) a party from doing something, such as picketing or trespassing on your property or disclosing confidential information.

A lawsuit is one way that people and companies can resolve disputes arising out of an infinite variety of factual circumstances.

WHAT CONSIDERATIONS DO LAWYERS USE IN DECIDING WHETHER TO ACCEPT A CASE AND BRING A LAWSUIT?

Lawyers typically consider these factors:

The precise nature of the claim.

The likely measure of damages or other relief.

The plaintiff’s objective (e.g., money, respect, "show them", revenge, political motives as in Paula Jones case against President Clinton etc.).

The plaintiff’s reasonableness (compare "I want a fair settlement" with "I want my ex-spouse to be totally broke").

The available evidence to prove the claim, and what is still needed.

The difficulty and likelihood of gathering additional important evidence.

The cost of gathering evidence, preparing the case, and conducting a trial.

Whether the plaintiff is likely to "stay the course" or change his mind and conclude the claim no longer is worth the time and effort to pursue – after the lawyer has invested her time and talents.

How believable (and sometimes likeable) the plaintiff is.

Who the adversary is.

How believable and likeable the adversary is (for example, it would be very difficult to bring a case against Rev. Billy Graham).

Whether the adversary - or its natural allies - might have any possible claims against the plaintiff. For example, if you sue to repair the car, the other drive might sue for a suddenly uncovered injury.

The importance of the case as "precedent" or adverse publicity both for the plaintiff, others similarly situated, and the defendant.

What the adversary typically does when sued. For example, the tobacco companies for years did a "scorched earth" defense costing them millions because they did not want to risk an adverse precedent. That meant plaintiffs had to spend huge sums that few of them, or their lawyers, were willing or able to advance.

Whether, if the plaintiff is successful, the adversary (in contingency fee cases) is likely to be able to pay the judgment. For example, if you are injured by a penniless person who has no insurance, even if you might have a great theoretical claim against the person, unless there is someone else also responsible, who could you collect from?

Whether there may be a "deep pocket" who has responsibility for some or all of the loss, as just because the active or prime wrongdoer may not have any money, there may be a claim against others for the same injury.

Whether the client will be able to pay the fees and expenses of the litigation (in non-contingency cases).

The possibility of informal settlement on reasonable terms.

The court the claim could be heard in, how long it would take to go to trial, and the quality and attitude of its judges.

Whether it makes sense to use alternative dispute resolution techniques (mediation or arbitration) to resolve the controversy.

A good lawyer will honestly review the facts of your case and help you weigh each of these (and possibly other) considerations and give you an idea of the strength of your case and your chances of success, based on his or her experience. Sometimes just one of these factors will cause a lawyer to decide not to even consider a case, such as when the damages are minor or the defendant has no money.

WHAT ARE THE TYPICAL STEPS IN A LAWSUIT?

The basic steps in a formal lawsuit include:

Demand: Typically there is a dispute and one party will make a more or less informal "demand" of the other, who will then send a "response". This may lead to informal discussions. A lawyer can help you assess whether what you are requesting or offering is realistic, and help you avoid making admissions that can hurt you if you can’t agree on terms.

Lawyer’s letter: If the principals can’t work things out among themselves, one party usually has an attorney send a "lawyer’s letter". While there may not be any legal significance to a lawyer’s letter, it usually gets a serious response from the other side, which may have been ignoring you. In some states it is necessary to make a formal demand before you can file suit, and the lawyer’s letter should do that for you.

Pre-litigation settlement discussions: There often is an informal "pre-litigation settlement discussion" involving the parties and their lawyers. Sometimes all it takes is a letter and phone call to straighten things out, particularly if the other side sees that you are serious.

Formal suit: If the informal attempts at resolution fail, formal action may be started by "filing suit". The formal litigation is underway. There are strict "statutes of limitations" which impose time limits requiring that actions to be initiated be within a set time frame or the right to sue is barred.

Answer: Once the defendant is "served" with legal process, it must provide its formal "Answer" within a prescribed time frame. If the defendant does not answer on time it is said to "default" and generally will automatically lose its case.

Discovery: A lawsuit may involve "pre-trial discovery" in which one or both parties attempt to get evidence as to what happened, perhaps by taking the testimony of witnesses, or examining documents or physical evidence.

Motions: In a lawsuit either side may make "motions" to try to narrow the issues, or compel the other side to do something, or even to have the court decide the matter without the need for a trial, as if all the facts are agreed to and only the application of the law to the facts is at issue.

Judge’s pre-trial conference: Before a trial the court will typically order a "pre-trial conference" to narrow issues down still further, and perhaps to get the parties to agree to a settlement.

The trial: Then comes the "trial", either by a judge alone, or with a jury to decide the facts and the judge to decide the law. (In arbitration the "trial" is called a "hearing".) By the way, despite the OJ Simpson trials, most trials are relatively dull, and only the parties, their attorneys, the witnesses and the judge and jury (and perhaps some folks trying to get out of the cold or heat or rain) are present – no TV cameras, no newsmen, no "fans" and few friends or relatives.

Judgment: After the trial the court will "enter judgment" such as, "The plaintiff is entitled to recover $15,420." (In an Arbitration the arbitrator will issue an "award" and the victorious party may go to court for "confirmation of the award".)

Post trial motions and appeals: There may be "post-trial motions" in which the losing party tries to convince the original judge that something else is appropriate, perhaps more money, or added relief. After that, there may be an appeal by the losing party to a higher court.

Collecting the judgment: The victorious party may have received a judgment stating what he or she is entitled to recover. Then it is his or her job to collect the "judgment". Collecting judgments can be difficult, especially if the defendant’s assets are not easily located, or exempt from claims of creditors, as everyone is learning from the OJ Simpson civil case.

The steps presented above can take many twists and turns as the court proceeding evolves. While a lawsuit can start as out as a very simple matter, it can get complex very quickly. In addition to these basic steps, there are many other steps which may be possible depending upon the particular circumstances.

HOW DO I PAY MY ATTORNEY?

Attorneys are usually compensated in one of two ways. Either on an hourly basis, or on a contingency fee basis. In a contingency fee basis, the attorney's recovery, if any, is a percentage of the recovery you obtain. IIf an attorney takes the case on a contingency fee and you lose, you are responsible for the court costs and fees. However, the practice of most attorneys is not to seek reimbursement for these expenses from their clients.

Some suits are inevitably taken on a contingency fee basis. Like medical malpractice cases, or slip and falls. Others, are more common on an hourly basis. Like bankruptcy, or divorce or family law proceedings.

HOW IS A LAWSUIT STARTED?

While each jurisdiction and each court has its own specific rules that must be followed, exactly, in most states a lawsuit is started by filing a document named a "Complaint" in the court clerk’s office.

The court or an attorney then issues a "Summons" that is "served" on the defendant – sometimes by personally delivering it to him or her, other times by delivering it to an appropriate adult at the person’s home or place of business, and sometimes by sending it by registered or certified mail. (In some states, such as New York, a lawsuit is begun by serving the Summons on the defendant and later filing the Summons and Complaint in court.) If the defendant cannot be found it may have to be published in a newspaper or two.

The exact procedure is typically found in the state’s code or rules of civil procedure, plus each court’s rules. The formalities must be strictly adhered to or the lawsuit can or will be dismissed. For example, the rules may specify the paper size, the type size and style, the color of the paper, the margins and spacing of words on the paper, and the quality of the paper! (For example, California now requires "recycled paper" with printed margins and numbered lines; some states require a specified type style – one state demands "courier" and papers typed on Times Roman are rejected.)

Even in filing the Complaint, there may be strict rules, such as prior presentation of a demand letter, and exhaustion of all potential administrative or contractual remedies. An attorney will assist you in adhering to the proper procedure.

ARE LAWSUITS HEARD BEFORE A JURY?

Not necessarily. It depends on the nature of the case, the facts and what the parties request. Jury cases are not allowed in some states in certain cases (e.g., probate, divorce).

Many cases that do go to trial are heard before a judge alone who decides based on the witness testimony and supporting evidence.

IF I AM SUED AND I WIN, DOES THE OTHER SIDE HAVE TO REIMBURSE ME FOR MY COURT COSTS AND ATTORNEY FEES?

Generally "yes" on court costs (a relatively minor amount in most litigation) but "NO" on attorney’s fees. They are generally your responsibility as a defendant.

WHAT ARE THE LEGAL DEFINITIONS OF DAMAGE AND DAMAGES?

Damage is defined as a loss or harm resulting from injury to a person, property or reputation.

Damages refers to compensation - such as a money judgment - provided to a person who has suffers a loss or harm due to the unlawful act or omission of another. The person at fault - the one who is the proximate cause of the loss or harm - must compensate the injured party.

WHAT ARE COMPENSATORY DAMAGES?

Compensatory money damages are intended to make you "whole". For example, if a person, while driving negligently, totally destroys your 1992 Ford, the compensatory damages would normally equal the market value of your 1992 Ford at the time of its destruction, less any scrap or "salvage" value. You could receive the fair market value of the car, not enough to buy a new model, even if that is what you choose to do.

Depending on the state and circumstances, you may sometimes be entitled to receive compensation for the loss of use of the car (such as while it was being repaired), or the loss of profits that you would normally have earned while replacing the car, if you were using the car as a taxi, for example.

CAN I PURSUE A LAWSUIT AND CLAIM WORKERS' COMPENSATION?

Since a claim under the workers' compensation system provides the employee with a remedy for injury or illness arising out of the course of employment (strict liability - no need for the employee to prove fault or negligence of the employer), you are typically prohibited from bringing a separate lawsuit for negligence against the employer.

However, this does not preclude the bringing of a lawsuit against third parties who have culpability for the injury. For example, if you are injured at work but someone outside your company caused the accident to happen (i.e.- a wire cable installer negligently hid a wire that caused your trip and fall), you may sue the cable company.

In addition, if your employer did not carry workers' compensation coverage, you may be able to sue the employer based upon its negligence or fault for your injuries. Also, there are some harassment claims that may be brought as a State civil action or a Federal cause of action. This is becoming more common in sex harassment claims. An attorney with expertise in the workers' compensation field can help you pursue all available remedies.

DO I HAVE TO PAY THE LAWYER IN AN ACCIDENT CASE UP FRONT?

Generally, lawyers handle accident cases on a "contingency fee" basis. That means that they do not charge you any fee, until and unless they recover money for you. They then receive a percentage of what they help you recover.

In some states, depending on the type of case, the maximum percentage the lawyers may charge is fixed by statute. In others it is what you and the lawyer work out between you. Similarly, in some states the lawyer may advance the expenses of obtaining medical records, accident reports, taking testimony, retaining experts out of his or her pocket, and you may not have to repay the advances unless you win. However in other states, laws require the client to front the out of pocket costs, or obligate the client to repay the lawyer for them, regardless of the outcome of the case.

WHAT ARE THE TYPICAL TYPES OF LAWSUITS?

The most typical are:

Tort (typically "Negligence") Actions:

A "tort" is a civil wrong. Say you were injured crossing a street by a driver speeding through the red light. You have incurred pain and suffering, medical and physical therapy expenses, and you missed work, using 20 days of sick leave. The driver’s insurance company offered to pay only the doctor bills and you are unsatisfied with the proposed settlement offer.

You can file a tort action against the negligent driver in an effort to recover for both the out-of-pocket costs and the physical or emotional injuries you suffered.

Tort-based lawsuits are frequently brought for injuries sustained as a result of negligence, defective products, medical malpractice, unsafe premises, unsafe products.

Contract Actions:

You paid a supplier to deliver merchandise. The goods were defective. You want your money back. Or you paid a contractor to repair your leaky roof and after constantly badgering him to finish the job, hired someone else to do it. You want to "sue the tar out of him" but at least recover what it cost you to have someone else do the job. You can file a civil action claiming breach-of-contract.

Actions:

The typical divorce and custody and support cases.

Private nuisances:

The proverbial "neighbor’s dog incessantly howling day and night and the neighbor does nothing" story. You file a lawsuit to force you neighbor to do something about his/her howling mutt.

Although there are over a million of them filed each year in Federal Bankruptcy Court, bankruptcy matters are not really lawsuits. There is no plaintiff or defendant although there may be claims raised in Bankruptcy Court that resemble lawsuits.

WHAT IS A CLASS ACTION LAWSUIT?

A "class action" is a civil suit brought by one or more people on behalf of themselves and others who are similarly situated. In other words, the others are in a substantially similar circumstance where the common issues are the most critical to the lawsuit. For example, if a large number of consumers is injured as a result of an allegedly defective product, the principal issue will be whether the product caused the injury. Some examples of class actions are those brought against the manufacturers of allegedly defective or hazardous products, such as asbestos, certain vaccines, Agent Orange, tobacco, and breast implants. Only then will the question of how badly each party was injured be heard.

Class actions may also be brought on contracts. For example, all customers of America Online could claim damages when it went to its $19.95 per month rate - with inadequate capacity to handle the increased traffic.

Another frequent field for class actions is securities claims. For example, suppose a company issues an allegedly false press release and the stock goes from $10 to $15 but when the truth comes out the stock falls to $6 per share. A class action could be brought on behalf of all the stockholders who purchased shares after the company issued deceptive news and before the truth came out. Each member of the class allegedly suffered some harm as a result of the alleged wrong. The damages each member of the class will vary - someone who bought 1,000 shares at $15 each would be 10 times more impacted than a person who bought 100 shares at $15 – but the critical issue is whether the press release was deceptive, and that is common to all class members.

Typical class actions involve hundreds, thousands or millions of people who have comparable claims. Class action "certification" permits all claims to be heard in a single trial.

I HAVE BEEN WRONGED. SHOULD I SUE?

If the matter is one that would be considered "petty" but you "feel" you have been wronged and you want to sue as a matter of "principle" to "show them" - wisdom suggests that you might sleep on the matter first.

Just because you were harmed or slighted or suffered minor damage does not automatically mean that you have a real legal case and should sue. We suggest that if the matter involves few dollars, you consider forgetting it or going to Small Claims Court. No lawyer would be able to spend any of his or her valuable time on a shirt that the dry cleaner ruined, a small parking lot dent to a parked car, or a lower raise than you had hoped for at work.

SHOULD I CONSULT WITH A LAWYER BEFORE I SUE?

If you have been really injured – particularly a permanent injury – with some real pain and suffering and actual out-of-pocket loss, or a matter involves a serious threat to your home or business or investments or livelihood, or you have been the victim of serious discrimination, it is very advisable to consult with an attorney to get a professional opinion as to whether you have a probable legal claim.

DOES IT ALWAYS MAKE SENSE TO USE A LAWYER?

Although there are the exceptions that "prove the rule", if the matter is one that exceeds the small claims jurisdiction of your locality you’ll almost always need a lawyer to help you bring and continue your case.

Trying to do be your own lawyer rarely works, and the odds are 100 to 1 you’ll make a mistake and lose even what might have been a strong claim.

WHO DO YOU SUE?

Lawsuits may be used to resolve disputes that arise between two individuals, such as between you and the roofing contractor, or two drivers who are involved in an auto accident, or a couple contemplating a divorce.

Lawsuits may be used to resolve a dispute between an individual and a business, perhaps over a defective product, a service, or lease of property, or between two businesses who may be having a dispute over patent rights or the terms of a contract between them.

Lawsuits also involve disputes between an individual or business with a Government agency. Maybe the town you live in wants to "condemn" that prime piece of property you own to extend a freeway, or the state is trying to deny you a license, or the amount of taxes you owe the IRS are in dispute.

WHICH COURT DO I SUE IN?

That depends on the nature and amount of your claim. In some circumstances there may be several courts you can choose to bring suit in, and sometimes there may be only one. It is necessary to file suit in the correct court or the other side - or the court itself - may dismiss your action, and make you pay costs.

WHAT KIND OF LAWSUITS DO FEDERAL COURTS HANDLE?

Federal District Courts have jurisdiction over matters involving controversies between the states, lawsuits involving certain matters or rights created by Federal law, and controversies between parties from different states (known as "diversity of citizenship") where the amount meets the Federal threshold, now $75,000. Under Federal law, it is the requirement of the plaintiff (the person bringing the lawsuit) to establish that the court has jurisdiction over the controversy. Other matters are to be brought in state or local courts.

WHAT TYPES OF CASES DO DIFFERENT STATE COURTS HANDLE?

State courts operate under a two-or three-tier system. Each system typically has a threshold dollar amount or authority based on subject matter. For example, in one state what is known as Small Claims Court or Municipal Court might have jurisdiction over controversies less than $5,000, the County Court or District Court may hear controversies where the amount at issue is up to $25,000 and Superior Court may hear controversies in excess of $25,000.

In addition, there may be rules which establish special courts for certain matters (e.g., Family Court, Probate Court).

HOW LONG CAN I WAIT BEFORE I FILE A LAWSUIT?

That depends. Some actions require prompt initiation of a lawsuit, while other matters can be given more time. Statutes of limitation exist in both the federal and state law system. If you file a lawsuit beyond the applicable statute of limitation, the defendant can demur (that is, file a pleading that basically says, "So what? The plaintiff waited too long and now recovery is barred by law"). In addition to the defense of the applicable statute of limitation, a defendant may raise the "equitable argument of latches" (the plaintiff has been "sleeping" on his/her rights for so long that recovery should be barred).

There is generally a longer period of time for controversies relating to real property than there is for personal injury. Complaints regarding a written contract usually can be filed later than a complaint based upon an oral contract. Determining when the statute of limitation begins can be complex. Some limitations are based upon when a plaintiff should have known there was a problem. There are also rules regarding the tolling (suspension) of the statute of limitation (for example, the statute does not run while the defendant is out of state, is a minor, or is insane).

Just because there is a long period of time before a lawsuit must be filed does not mean that the period must be almost expired before filing. While other methods of dispute resolution can be used before filing, it is important not to allow a statute of limitation to expire, and thereby defeat any potential change for recovery. Remember the adage, "If you snooze, you lose." Determine the date of the applicable statute of limitation well in advance, and then don't get caught short.

THERE IS PLENTY OF TIME LEFT UNDER THE STATUTE OF LIMITATIONS. SHOULD I SUE?

Just because there is a long period of time before a lawsuit must be filed does not mean that you should wait until just before the period expires before filing. There are cases in which a messenger taking papers to the court on the last day went to the wrong court and did not discover the mistake until the next morning – one day late – meaning the papers were not filed on time. The result was the case was dismissed. It might even be possible for a state to shorten a statute of limitations (or change tolling statutes) that could bar your old claim.

Where the lawsuit seeks to enjoin certain conduct, as an "equitable" matter, in addition to the defense of the applicable statute of limitation, a defendant may raise the argument of "latches". Essentially this is a court-imposed concept that if the plaintiff has been "sleeping" on his/her rights for a long time, recovery should be barred.

Lawyers use the following adage: "If you snooze, you lose." Never risk getting caught short.

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