What happens when you sue someone? What is the process? Lawsuits can be a mysterious and often over complicated thing. Movies and television series only give you a glimpse of the process and how it works. After I file a lawsuit on behalf of a client, they always ask me, “okay, now what? ” It helps to have a basic understanding of the process. Since I am a personal injury attorney, I am going to tailor my outline to injury cases, however the process is very similar for all types of lawsuits.
File the Complaint
The very first step in any lawsuit is to file the complaint. In essence, the complaint is like a declaration of war. The Plaintiff is the one that files the complaint. The Defendant is the party that is being sued. The complaint starts the lawsuit. The complaint is a document that outlines what has happened and why the Defendant owes the Plaintiff some type of compensation. Statutes or case law should support the allegations set forth in the complaint. After the complaint is filed, a process server serves it upon on the Defendant.
The Defendant has a certain amount of time to answer the complaint. Their answer will be filed with the court and most likely mailed to you. The Defendant’s answer is just what it sounds like, an answer to the allegations set forth in the complaint. The Defendant will either deny or admit all of your allegations and then raise their defenses.
This is when you gather as much evidence as you can to support your claim. Here, you can force the Defendant to answer your questions, where as before, without a lawsuit the Defendant can just simply ignore you. You can send the Defendant written questions called interrogatories that must be answered within a certain time frame, usually 30 days. You can also request certain documents from the Defendant and once again they usually have 30 days to hand it over. However, the Defendant can object to certain requests, if that happens, the Judge will rule on whether or not the Defendant has to answer the question or hand over the specific document requested. The Defendant can also send interrogatories and requests for document production to the Plaintiff.
Another important aspect of the discovery phase is the ability to take depositions. A deposition is when you get to ask the Defendant questions in person while they are under oath. Everything they say is written down by a stenographer. This is very effective to weed out the truth. When the interrogatories (written questions) are answered, the Defendant’s lawyer has proofread them. The answers are carefully crafted. In a deposition, the Defendant is answering your questions themselves. Just because a deposition is under oath, it doesn’t mean the person being deposed won’t lie. Often the most important thing said in a deposition is something that is not said at all. For example, body language is great indicator of truthfulness. The Defendant is entitled to take the Plaintiff’s deposition as well.
Here is where everything tends to get complicated. The Defendant will usually try to file a Motion for Summary Judgment to get the case thrown out. Motions are filed to exclude certain evidence from the trial and a whole host of other hearings happen. These motions can be filed at almost any point during the case. One of the great things about our legal system is no matter what the Defendant files, you can almost always find a law or case that says the opposite. In that situation, a hearing is set where both sides get to argue their position and the Judge will decide the issue.
Some states require the parties of a lawsuit to attempt settlement before going to trial. This serves a twofold purpose. For one, it takes a case off the trial docket that could be settled and it saves the parties money. Mediation is when a mediator, kind of like a referee, sits down with both of the parties, their lawyers and attempts to settle the claim. I have heard Mediators say the best settlement is when the Defendant feels like they paid too much and the Plaintiff feels like they should have gotten more. That means it was somewhat fair to both sides.
Trial is what everything has been building up to. Going to trial is always a risk. You never really know what the jury is going to do. They may not like you because of the way you talk or the way you look. Even though those things shouldn’t matter, human nature is to judge people. Trial begins with jury selection, each side gets to pick potential jurors and strike jurors they don’t want. Trial flows as follows:
- Opening statements: Both sides get the opportunity to tell the jury what the case is about, what they are going to prove and why they should win and the other side should lose.
- Examinations: The Plaintiff, their evidence and witnesses are introduced, examined and cross-examined. The Defendant, their evidence and witnesses are introduced, examined and cross-examined This is what you usually see in movies. This is perhaps one of the most exciting parts of the trial. Objections can be made to certain questions or to the introduction of certain evidence.
- Closing Arguments: This is when both sides get to argue to the jury why they should win. They do this by summarizing the evidence and testimony in a light favorable to them.
- Application of the Law: The Judge will now instruct the jury of the law that is to be applied to the case. Usually, both parties submit proposed jury instructions for the Judge to read to the jury.
- Deliberation: This is when the jury goes back to the deliberation room to decide the outcome of the case. A single jury member is usually selected as the lead juror or spokesperson. After a decision is made, usually by majority vote, the lead juror reads the decision to the court. The Judge will then enter the verdict.
After the judgment is entered, the winning party is entitled to collect the verdict amount from the losing party. Some factors will determine how easy or hard it is to collect the money. These factors are: insurance policy limits, lack of funds, bankruptcy or lack of assets etc. An execution may be commenced in order to force the losing party to pay up.
Appealing the Verdict
In our legal system, a trial court’s verdict may be appealed for a number of reasons. Some of these include but are not limited to, incorrect application of the law by the jury, jury misconduct or improper ruling on an objection etc. The appeal process is usually very strict and often times the appeal does not change anything as Judges are hesitant to undo the decision of another Judge.
Lawsuit should always be the last resort as they are often lengthy in process and the outcome is not something that can be determined with 100% accuracy. You should make every attempt to settle the dispute before resolving to a lawsuit. If you have any questions or a potential lawsuit, please feel free to contact us at 786-815-6296 or you can visit my website at 305personalinjurylawyer.com