Questions & Answers Concerning Litigation

The Complaint

Litigation begins when the plaintiff files a complaint with the court and sends a copy of the complaint (by service of a summons) to the defendant. The complaint explains what the defendant did (or failed to do) that caused harm to the plaintiff and the basis upon which the defendant should be found legally responsible to the plaintiff.

The Answer

The defendant is given a specific amount of time to file with the court an answer to the complaint (usually 3-4 weeks). The answer explains the defendant's side of the dispute. Sometimes, the plaintiff responds to the defendant's answer by filing a reply. In some instances, in lieu of an answer or reply, a party may request that the other party clarify or correct deficiencies in its factual allegations or legal theories, and this may lead to amended complaints or amended answers. Once the parties have settled on a complaint, and answer, the case is said to be "at issue," which means that the issues for resolution are now defined.

Motions

Before trial, the parties may use motions to ask the court to rule or act. Motions usually pertain to law or facts in the case, but sometimes they seek clarification or resolution of procedural disputes between or among the parties. Some motions, such as the motion for summary judgment, which asks the court to dismiss part or all of a plaintiff's case or a defendant's defense, dispose of issues without trial. Other motions might ask the court to order a party to produce documents or to exclude evidence from trial.

Trial

At trial, the parties present evidence in support of their claims or defenses to a jury and/or judge. Immediately before trial, each party provides to the judge a document, called a brief, that outlines the arguments and evidence to be used at trial. In a jury trial, both parties question potential jurors during a selection process called voir dire. Once the jury has been selected, each party presents its outline of the case in an opening statement. Evidence is then presented. Each party may call witnesses or introduce documents and exhibits in support of its arguments. The plaintiff presents evidence first, then the defendant. Sometimes, the plaintiff is allowed to present additional evidence, called rebuttal evidence, after the defendant has finished presenting its case. Once all the evidence has been presented, the parties give their closing arguments.

After closing arguments, the court instructs the jury on the law to be applied to the evidence. The jury then deliberates and reaches a decision or verdict.

A party may challenge a jury's verdict. Errors of law committed by the trial court or a jury's disregard of law or evidence are common reasons for challenging a jury's verdict.  A motion for judgment notwithstanding the verdict asks the court to disregard the jury's verdict and enter a different decision. A motion for a new trial asks the court to set aside the jury's verdict and order a new trial of the case.

Appeal

Following trial, a party dissatisfied with the result may seek an appeal. During an appeal, a party asks another court to review the trial court proceeding. The parties present their arguments in briefs, which are submitted to the appellate court along with the record of evidence from the trial court. An appeal can extend the litigation process by a year or more. The appellate court usually reviews a case for legal error only. Except under unusual circumstances, the appellate court will not review factual evidence or disturb a jury's findings of fact. The appellate court announces its decision in a document called an opinion. The appellate court will affirm the verdict if it finds no error. If an error is found, however, the appellate court may reverse the verdict or order the trial court to conduct a new trial.

Settlement

It is generally wise at the outset of any litigation proceeding to review the potential and prudence of an out-of-court settlement. Indeed, most matters settle before reaching the trial stage. Settlement can be discussed by any party at any time during litigation and is often a cost-effective alternative to trial. Usually the court does not require the parties to discuss or attempt settlement, but most courts have procedures by which a party can request the court's assistance in settlement.

Alternatives To Going To Trial – Arbitration, Mediation, and Settlement

Arbitration and Mediation

Two additional alternatives to litigation are arbitration and mediation.

Arbitration is an adversarial proceeding in which the parties select a neutral third party, called an arbitrator, to resolve their dispute. The process is abbreviated and less formal than trial. Arbitration often arises from private agreement, but many courts also require the parties to smaller disputes to explore arbitration as an option to trial. Parties who agree to settle their dispute using "binding" arbitration usually cannot appeal the arbitrator's ruling to the court.

Mediation also involves a neutral third party, but it is the mediator's job to assist the parties' settlement efforts. The parties select the mediator, who meets privately with each party to discuss the strengths and weaknesses of each side's case. The mediator helps the parties identify the risks of the case and encourages them to consider how those risks can affect their goals.

Whether arbitration or mediation is feasible and practical usually depends on the parties' willingness to use these methods. Each alternative usually saves time and expense, but either also might not result in a final resolution of the matter. The desirability of these alternatives should be evaluated early to allow their timely implementation.

Case Duration, Preparation, and Discovery

The duration of a lawsuit depends on the issues of the case, the amount of discovery to be conducted, and court scheduling and availability. The parties, guided by the rules of court, usually decide the timing of discovery. Trial dates are set by the court. Timing and scheduling differ between state and federal courts.

Thorough case preparation is critical to any successful litigation. Research of the law, document review and organization, and witness interviews help clients and their lawyers assess the merits of claims and defenses. The extent to which these and other steps are needed is determined by the issues of the case.

Discovery is the method by which parties gather relevant information from each other or from third parties. Discovery is the longest part of the case: It begins soon after a lawsuit is filed and often does not stop until shortly before trial. During discovery, the parties ask for information about the facts and issues of the case. Information is gathered formally through written questions (known as interrogatories), requests for documents, and requests for admission (which ask a party to admit or deny statements of fact). The use of depositions, in which witnesses are questioned under oath and in front of a court reporter by the parties' attorneys, is another key method of obtaining information. Depositions sometimes may be used at trial to show inconsistencies in a witness's story or to question the witness's credibility. Depositions sometimes also may be used in place of a witness who is not able to attend trial in person.

Often a claim or defense requires support from expert witnesses to explain technical information or validate an argument. One or more experts might be needed to testify about the connection between the defendant's conduct and the loss suffered by the plaintiff or the existence and amount of the plaintiff's damages. Expert witnesses work closely with a party's representatives and attorneys to prepare the party's case.

Conclusion

A positive result in your case is the product of teamwork. You bring your information and familiarity of the facts necessary to effective case preparation. We provide the legal expertise to help you through the litigation process.  The strength of our partnership depends on mutual communication and understanding. The expectations outlined above are guidelines to facilitate an open and candid working relationship. The product of this relationship will be a resolution consistent with your goals and business philosophy.

Hyde & Swigart is has been involved in, and is familiar with, all of these processes.

Statutory damages are "cumulative."  That is, they are added to other damage awards you may receive.

By far, the most common way that the courts compensate plaintiffs is through monetary awards.  That is, they award the plaintiff money.   The amount of money awarded depends on a number of factors. The most common factor is the question of "what will it take to make the plaintiff whole.

The two most common types of monetary relief are compensatory and punitive damages.  Compensatory damages are intended to compensate the injured party for his or her loss.  Special damages are a subset of compensatory damages; they represent the direct costs of the wrongdoing, such as hospital bills or wages lost while being treated.  General damages are also a result of the wrongdoing, but are subjective in amount, such as awards for the plaintiff's pain and suffering or a payment for his or her mental anguish.  Some contracts anticipate a breach of the agreement and stipulate how much will be awarded in the event a party reneges on the deal; these are called liquidated damages.  There are also cases where a wrong was committed by the defendant, but the plaintiff suffered almost no harm; nominal damages, such as an award of $1, are made in such cases.  Punitive damages, which generally are available only if authorized by statute, are awarded to punish the defendant and are a warning to others who would consider undertaking similar conduct.  Treble damages are a variation of punitive damages – triple the amount of the plaintiff's actual losses.

There are two types of injunctions: a preliminary injunction and a temporary restraining order (TRO).  The purpose of both is to maintain the status quo – to insure a plaintiff that the defendant will not either make him or herself judgment-proof, or insolvent in some way, or to stop him or her from acting in a harmful way until further judicial proceedings are available.  The court uses its discretionary power to balance the defendant's due process rights against the possibility of the defendant becoming judgment-proof, and the immediacy of the threat of harm to the plaintiff.  Courts can also issue preliminary injunctions to take effect immediately and effective until a decision is made on a permanent injunction, which can stay in effect indefinitely or until certain conditions are met. In many jurisdictions, plaintiffs demanding an injunction are required to post a bond.

You may sometimes hear that the United States is a hyperlitigious society, propelled by avaricious lawyers, harebrained judges, and runaway juries.  Some would have you believe that lawsuits waste money and time and, moreover, many are simply groundless.  Don't you believe it for a minute – it is generally propaganda by companies hoping to discourage lawsuits or statements by those fortunate enought to have never been injured, at least, not yet.

Consumers sometimes view suing as a bad thing - like it is greedy. You shouldn't view it that way. When you sue you do more than just put money in your pocket. You hurt the defendant financially. You send a clear message – "Stop Doing This!" Companies often only stop when it costs them money, and suing does other consumers a service. You are also doing law abiding companies a favor. When competitors violate the law it disadvantages law abiding companies - and it tempts those companies to break the law too, just to keep up. It's possible that if someone else had sued before, what happened to you wouldn't have happened at all.

Lawsuits are your opportunity to correct what is wrong.  Anyone can complain, few take action.  When you sue, you do more than help yourself.  You help others as well.