By: Guy O. Kornblum, Certified Civil Trial Advocate, National Board of Trial Advocacy and Member, Million Dollar Advocates Forum
Getting involved in a lawsuit is a time consuming, frustrating and often confusing process for a client. The court system is not viewed as being "user friendly," and the terminology, forms and what seem to be "picky" rules are often viewed as traps rather than a means of getting to an end - the resolution of a dispute.
I tell my clients that lawsuits should be filed only when one has no other choice - the "last resort" S when disputes cannot be resolved by compromise and negotiation. I refer to these cases as "have to" cases - the client "has to" sue. This is often the case when there is a devastating injury or an insurance company refuses to pay what it owes under an insurance policy. The client seeks compensation for an injury or the benefits of an insurance policy which was purchased as protection from the financial devastation of a major injury or illness which results in large medical bills or disability.
A lawsuit is begun by filing a Complaint with the court. In this Complaint, the plaintiff - the party bringing the suit - must set forth a "legal story" which meets the substantive requirements for the claim being brought. This could be a claim of "negligence" (i.e. unreasonable conduct) or breach of contract (e.g. the failure to pay what is owed under an insurance policy). Once filed with the court, a Summons is issued, which commands the party or parties named as defendants to appear. That Summons must be "served," that is, delivered, to each defendant in accordance with the statutes for service of the summons and complaint (personal delivery, by registered mail or publication in a newspaper). Once served, a defendant has at least 30 days to "appear" by filing a response to the Complaint. This response is usually an Answer, which denies the important parts of the claim being made.
Once the initial papers are filed, the parties begin what is called discovery, which is the pre-trial process for finding out what the other side and third parties know about the facts of the case. Written questions, called Interrogatories, can be submitted by one party to the other. There are other "discovery tools" that are used: written Requests for Admission of facts, Requests for Production of records, and Subpoenas requiring third parties to produce documents, such as medical records from doctors and hospitals or employment or bank records.
When third party records are subpoenaed, there are certain protections against disclosure of confidential personal and financial information. While these are normally not available because they are private records, in a personal injury case, the plaintiff who is suing "waives," or gives up the right, to claim privacy when that plaintiff puts in issue his or her physical or emotional condition or claims loss of earnings or earning capacity. Once this occurs, the defendants have a right to obtain relevant information on these subjects. However, this does not necessarily mean this information, once disclosed, is available to the whole world. There are ways to seek limited disclosure or protect private information.
The lawyers in the lawsuit will also conduct depositions, which are the formal process of questioning parties and witnesses (who are subpoenaed) about the facts of the case. A deposition is held before a court reporter, who takes down all questions and answers in full. The lawyer for the party requesting the deposition is entitled to ask the party or witness questions. These questions are subject to limited objections which can be stated on the record. Or, in cases in which protected information is requested, a "privilege" may be asserted, and the witness may be instructed by the lawyer not to answer (unless later compelled by the court). Lawyers representing all parties to the case have a right and opportunity to ask questions during the deposition, again, subject to appropriate objections.
Today, lawyers spend more time in depositions than trial. The deposition is a key tool in the trial lawyer's kit for developing evidence, assessing witness impression, and evaluating the case. Unfortunately, depositions have become in many instances mini "battlefields" and unruly, prolonged proceedings, which unnecessarily distract from rather than advance the cause of bringing a case to resolution.
Depositions have rules. As one of my lawyer friends observed, depositions should proceed as if the testimony was being taken in open court. That is, in trial a lawyer is not permitted to: a) interrupt the examination with objections designed to help the witness testify, b) make speeches at will, c) speak directly to opposing counsel in an effort to intimidate or distract the examining lawyer from the line of questioning being pursued, or d) have conferences at will with a client or witness to discuss the "proper" answers to questions.
Along the way, there are motions that can be made by either side if one party refuses to respond to the discovery requests or a party believes that an issue can be resolved by the judge as opposed to a jury (this is known as a Motion for Summary Judgment).
The court also has periodic "status conferences" at which the court makes sure that the case is proceeding expeditiously. Usually, reasonably early in the process - possibly six months from filing suit S the court will set some dates for the end of discovery, the disclosure of expert witnesses by both sides, a pretrial conference and trial. Real earnest trial preparation should begin between 60-100 days before the trial date.
Also, at some point, the court will direct the parties to attend a Mandatory Settlement Conference, at which a judicial officer - usually not the trial judge - will oversee negotiations, requiring the parties to submit "briefs," called "Settlement Statements," in support of their respective positions.
Once the trial is called, the judge and the lawyers meet and discuss how it will proceed. There may be pre-trial motions that need to be heard and resolved by the trial judge. If a jury trial, the prospective jurors will be brought to the courtroom, and, in groups of 6, 8, 12 or 18 (depending on the trial judge and local procedures), will be questioned by the lawyers during "voir dire" [which means, in French, "to speak the truth"].
Once the jury is selected and sworn, the lawyers make their opening statements, and then the testimony begins when witnesses testify and documents are introduced. The plaintiff, with the burden of initially proving the case, starts first. The defendant goes next. Each side puts on a "case-in-chief." Then they can "rebut" the other sides' case. They then "rest," the judge gives "instructions" on the law to the jury, and the jury deliberates until it reaches a "verdict." Once this part is concluded, the parties review the "verdict" and can make various post trial motions. Following these, a "judgment" is entered by the court from which appeals can be taken.
Trial lawyers are obliged to be ethical, as that is our professional responsibility. We are obliged to be diplomatic because it is the proper conduct to show respect for the forum in which we are privileged to participate. By our conduct, we promote efficiency and orderliness in the portrayal of contested matters.
There is nothing more satisfying than watching a skilled trial lawyer do his work, laying foundations, examining witnesses with precision, maintaining control of the forum, carefully laying out the case consistent with the "story" told in opening statement, earning the respect of the court and jury, and arguing the case persuasively for a positive result for the client.
In a sense, trial work is a grand game of "Mother, May I." Done properly, the skilled trial lawyer performs under the trial judge as conductor. The trial lawyer knows the rules and knows when to ask permission to move about the courtroom so that the evidence, both testimonial and documentary, is developed in a logical, understandable fashion.
When selecting a lawyer, make sure you engage one who has the correct approach to representing you in your lawsuit and subscribes to this professional approach to representation.