Last week we tackled Can I sue for …? Today we learn the process of suing for damages through Civil Litigation.
Civil litigation is usually litigation involving private parties, as opposed to criminal where you are prosecuted by the state. Civil could be because of damages from an accident or money owed.
Civil litigation is confusing for lawyers. For non-lawyers…it is a nightmare. Most lawyers, unlike our office, fail to educate their clients about what to expect.
For instance, there are 4 phases to a Civil Accident Lawsuit:
Initially a lawyer attempts to settle the matter, but may have to file a Complaint called a Lawsuit. This is the Pleadings phase, where the victim explains in the complaint what the defendant did and how much they are demanding. The defendant often files an Answer or a Demurrer (where they claim there is not enough evidence to proceed).
The Discovery phase is next, and is the most time intensive. This is where both sides share evidence. It could involve written questions called Interrogatories or Depositions, where there is testimony in front of a reporter.
Discovery discloses facts, hopefully resulting in a settlement, dismissal or trial in front of an Arbitrator or Judge. At trial, the plaintiff’s lawyer presents facts, allowing the trier of fact (Jury, Judge or Arbitrator) to evaluate and give a ruling/verdict for them. If the lawyer for the plaintiff can’t convince the judge or arbitrator that his/her client is entitled to money, then the case could be dismissed.
Most cases are settled because trials, on a soft tissue accident case for instance, are so costly. Each side presents experts which are often doctors, who often bill up to $1000 per hour to prepare a medical report, driving to court and waiting to testify. One recently charged me $750 for 15 minutes of time over the phone.
Unfortunately law is not an exact science and an expert can be scheduled to appear in court at 8 am and the court may be tied up from the day before and thus everyone waits. Sometimes this goes into the afternoon and sometimes the matter is put over to the next day or several days later. The lawyers on both sides are billed for this delay by their experts.
The Post Trial Stage comes after the trial. On an auto accident case if there is no insurance or not enough insurance, the lawyer must try to then collect the judgement. The judge’s ruling is just his/her decision and not an order. Now the lawyer has to try to find assets.
An investigator is hired to find assets so that the lawyer can levy on the assets of the other party. This judgement can be renewed every 10 years if they cannot initially find assets. Unfortunately, if the defendant files for bankruptcy, that will wipe out the judgement and the plaintiff does not collect anything… nor does the lawyer for all his work…and advanced costs.
If the defendant disagrees with the verdict he can hire an appellate lawyer to file an Appeal. An appellate lawyer is different from the initial lawyer and often forces both sides to hire appellate lawyers on an hourly basis.
It is often said if you have to try a soft tissue accident case you have lost. This is because of the tremendous costs involved. In addition lawyers know that the best case can be lost and the worst case can be won. It is not just the lawyer but the luck of the draw with the jurors who may dislike one side or the other.
I once won a case that should have been lost. I asked the jurors outside the courtroom, what convinced them that my client deserved to win? I got answers like “The other lawyer’s nails were dirty; his belt was old and worn; his shoes were scuffed etc.” In other words, nothing to do with the case. Thus you can see why a trial is always a potential crap shoot.
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