How to file or defend a lawsuit

Lawsuits are a part of everyday life in the United States. CourtStatistics.org estimates that 19 million civil lawsuits were filed in federal and state court systems in 2010 alone. While many people think that lawsuits are mostly filed by persons who become injured or corporations fighting over contract disputes, the fact is that parties who file lawsuits are as diverse as the reasons they have for doing so. In addition, the numerous court rules, procedures, and deadlines that must be followed often leave people confused and intimidated about the process of filing a lawsuit. Thus, the real question you might be asking yourself at this point is: What happens when I decide to sue or someone decides to sue me?

The information contained within this article seeks to answer these questions and alleviate some of the stress and anxiety that come with bringing or defending a civil lawsuit. It is important to note that the information contained here is intended to be educational and in no way should be taken as a substitute for obtaining the advice of legal counsel. The facts and circumstances of each case vary greatly, and the rules of civil procedure can vary between jurisdictions. These factors can alter the legal approach to your case, and it is always recommended that you seek the advice of a licensed attorney practicing in the jurisdiction where you reside prior to initiating or defending a lawsuit.

I.                   THE BASICS OF FILING A LAWSUIT

Preparing Yourself Before You Bring Suit

Once you have decided to sue someone in court, there are four things you should do to prepare yourself for the long and arduous process of filing a lawsuit: prepare yourself emotionally, prepare yourself mentally, prepare yourself financially, and consult with an attorney.

First, we strongly recommend that you remain calm. The decision to sue can be an emotional one. As the party bringing suit (the Plaintiff), you will most likely feel that you have been wronged in some way and are seeking to avenge that wrong by filing your claim in court. However, to avoid making brash decisions that might affect the outcome of your case, you should remain calm and take your time, because if your suit is brought forth improperly, it can stall or delay the litigation process.

Second, it is important to understand that bringing a civil lawsuit can be a slow, expensive, and arduous process, often taking several months before the first court appearance. As such, it is vital to make sure that you have a clear and concise understanding of the applicable law and a good understanding of each step of the litigation process in order to ensure that each task is performed correctly and in a timely fashion in order to avoid unexpected costs and delays.

Third, litigation can be very costly. It is important for you to determine the likely costs associated with bringing your case to trial. Determining the costs and the expected value of your case will help you form your litigation strategy. Having a strategy is key, as it will help you determine when and if you will accept a settlement or turn one down in favor of taking the case to trial. Your attorney will take the lead in formulating a strategy that takes everything into account.

Finally, after you have prepared yourself mentally, emotionally, and financially, it is always a good idea to consult an attorney to ensure that you have a proper understanding of the law and are proceeding with your case in a proper manner. While there are many sources you can consult in order to get an understanding of the general process of filing a lawsuit, the advice of an attorney who is licensed and who practices in your area, or in the area where the injury occurred, is invaluable.

Bringing the Lawsuit

i.                    Determining Whom to Sue

While it may seem like the answer to this question is simple, this is not always the case. There are many factors to consider when deciding whom to sue, including:

  1. What party or parties are directly at fault?

For instance, in an automobile accident, there is often a party who is directly at fault and a party who is not at fault. In this instance, the police may have issued a ticket that indicates the party at fault. However, in many situations the identification of the responsible party may not be clear.

2. What is the financial position of the party or parties involved?

Bringing and winning a lawsuit is only part of the process of obtaining relief. Before you file a lawsuit, it is always important to investigate whether the defendant will be able to pay you the money that the court will award you. If the defendant has no assets from which you could satisfy your judgment (the defendant is “judgment proof”), your judgment may be worthless, and the time and money spent in obtaining it wasted.

3. Could the situation have been prevented had a party acted differently?

This question often arises when a party not involved in the incident acts irresponsibly or recklessly, or fails to take proper precautions leading to another person’s injury. For example, parents leave an unlocked firearm in their home where their child can find it. The child shows a friend where the gun is, and the friend takes the gun and accidentally kills another friend in the room. The parents are not the party who is directly at fault for the person who was killed in the room; however, the parents’ improper storing of the firearm can make them liable for the harm that was caused by the friend.

These and similar issues must be considered when deciding whom to file suit against because it can significantly affect the outcome of a lawsuit.

ii.                  Preparing a Demand Letter

Once you have determined whom you will sue, you should next consider sending that potential defendant a demand letter. This demand letter should include the basic merits of your case, the amount of money you are demanding, and any other terms you deem necessary in order for the opposing party to avoid having to defend the case in court. Sometimes a case must be taken to trial, but in most circumstances, the parties settle to avoid the costs of litigation. The opposing party, or his or her attorney will typically prepare a response stating whether the opposing party is willing to settle or whether the opposing party would prefer to litigate instead.

iii.                Filing the Complaint

If the parties cannot come to a settlement agreement, the next step in the process is filing the complaint in court. The complaint contains a short, plain statement of the facts of your case, outlining the legal basis of your claim. There may be more than one legal basis (cause of action) for your claims Thus, determining how many causes of action to include in your complaint can be difficult. If the parties cannot reach an initial settlement, we recommend that you seek advice from a licensed attorney in your area to determine what causes of action you should raise in your complaint based on the facts of your case. Once your complaint is filed, the person you are suing (the Defendant) will be given a certain time to respond to it. The Defendant’s response should be a short, plain statement answering all of the allegations in the complaint.

iv.                 Discovery

After the Defendant has responded to the complaint, the parties will proceed with discovery. Discovery is a step in the litigation process where each party is given an opportunity to discover facts about the case that may help them prevail during trial. This involves interviewing possible witnesses (depositions), requesting documents, and obtaining other evidence from the opposing party. The discovery process is necessary so that each party can get a better grasp of the merits of his or her case. Often, the discovery process promotes settlement.

v.                   Trial

If the parties do not reach a settlement during or after discovery, the case will go to trial. During trial, each party will have the opportunity to interview witnesses and present his or her case to the judge or jury. After the trial ends, the jury will deliberate and render a verdict. The court will then enter a judgment to enforce the jury’s verdict. Depending on the outcome of your case, you may want to appeal the court’s judgment in the appropriate appellate court.

II.                THE BASICS OF DEFENDING A LAWSUIT

Preparing Yourself to Defend a Lawsuit

You have just been sued. Much like preparing yourself to file a lawsuit, there are several things you should do to prepare to defend a lawsuit: remain calm, consult an attorney, and prepare yourself financially.

The first and most important thing to remember once you have been sued is to remain calm. Getting sued is very stressful. Once you have discovered that you have been sued, it is common to react with anger. As the Defendant to the suit, you are likely to feel that the Plaintiff is bringing a frivolous lawsuit against you, and your immediate reaction may be to contact the person directly. This would be a mistake. It is important to understand that once you have been sued, any action you take, however small, could end up being used against you in court. Therefore, we strongly advise that you remain calm and avoid making hasty decisions that could end up working against you.

Once you have been sued, whether it is by an individual representing himself or herself, or by a person represented by an attorney, we always urge you to consult with an attorney licensed to practice in the jurisdiction where the lawsuit has been filed. Unlike filing a lawsuit, defending it is far more time constrained. You have much less time to prepare, which is why we suggest that you call an attorney right away. Depending on the jurisdiction, the deadline to respond may come quickly (typically 20 days), and failing to properly respond could result in the court issuing a default judgment against you.

Once you have consulted with an attorney, the attorney will likely inform you of the estimated cost of defending your case. With this information, you should immediately begin to prepare financially for the litigation. Defending a lawsuit can be costly, and understanding your financial position will help you and your attorney better plan your defense.

i.                    Responding to a Demand Letter

While a demand letter may not always be sent to you by the Plaintiff, if you receive one, it is recommended that you bring it to your attorney so that he or she may help you draft a response. Depending on the situation, you may want to accept the terms of the demand letter, reject them, or set up a meeting with the opposing party to negotiate the terms of a possible settlement.

ii.                  Filing an Answer

An answer to a complaint is typically a short, plain statement responding to each paragraph (or allegation) of the complaint. The answer is simple, typically affirming or denying in full, or in part, each allegation raised in the complaint. It may seem necessary to deny all facts and allegations of the complaint, however, many of the general allegations, such as the parties’ locations or names, will usually be affirmed. The answer may also contain a counterclaim, similar to a complaint, which outlines any legal claims that the Defendant believes he or she has against the Plaintiff.

iii.                Discovery

Discovery is a step in the litigation process where each party is given an opportunity to discover as many facts about the case that may help them prevail during trial. This involves interviewing possible witnesses (depositions), requesting documents, and obtaining other evidence from the opposing party to determine the likelihood of winning in court. The discovery process is necessary so that each party can get a better grasp of the merits of their case, and it often promotes settlement of the case.

iv.                 Trial

If a settlement is not reached after discovery, the case will go to trial. During trial, each party will have the opportunity to interview witnesses and present their case to the court or to a jury. After the trial proceedings end, the jury will deliberate and render a verdict. The court will then enter a judgment to enforce the jury’s verdict. Depending on the verdict, you may want to appeal the court’s judgment by bringing your case to the appellate court.

The process of suing someone and/or being sued is long and complicated. To ensure that your case is handled properly and your interests are protected, it is recommended that you always consult an attorney before making any decisions relating to your case.

The attorneys at Donath & Medrala hope that this article was informative and helpful to you. Please check back with our website and like us on Facebook for future articles and other valuable legal information.

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