Law 101
Despite avid interest in "law and order" television programs and other popular examinations of our legal system, even the most educated and savvy individuals are often unaware of the basic steps of a typical lawsuit. Here at the Law Offices of Nelson Barry, we find that the more informed our client, the better the chances for a smooth and successful lawsuit. That's why our initial meeting with each new client usually includes a fairly detailed discussion of what lies ahead. Here is a brief explanation of the six basic phases of a lawsuit.
Pleadings. The suit begins with the filing of a document (usually a "Complaint") with the court. This document identifies the parties (the person suing and the person being sued), explains what the claim is about, and asks the court to do something - usually award money or other compensation to the injured party.
Service. The person filing the suit must formally notify the other party that he or she is being sued. Service is normally accomplished by preparing a document called a Summons, and then having it and a copy of the Complaint personally delivered to (or "served on") the defendant.
Discovery. Both sides then gather facts and information to prepare for trial. The discovery process can involve the examination of documents, records and other physical evidence, as well as the deposition (taking statements) of the parties involved in the lawsuit, or third-party witnesses.
Pretrial Motions. If the parties need the judge to make procedural decisions or other rulings as the case moves along toward trial, they do so by filing the appropriate Motions with the court.
Trial. The court (sometimes just a judge but usually a judge and a jury) hears the evidence offered by both sides and decides issues of fact and law during this process.
Enforcing the judgment. If the court's decision, or judgment, involves the award of money to the "winner" of the case, that party has to collect the money. A judgment can be enforced through a lien on property, garnishment of wages, or the issuance of a court order to have bank accounts or other property turned over to the prevailing party.
Mediation and arbitration are alternative methods frequently used to resolve a case before it goes to trial, or even before the lawsuit is filed with the court. On rare occasions, mediation or arbitration also can be utilized after a trial to resolve an appeal of the judgment or issues relating to collection.
The average lawsuit now takes about one year from the time the complaint is filed to the completion of the trial. This is down from the five-year average experienced in the late 1970s and early 1980s. The credit goes to the judges for encouraging lawyers and insurance companies to move things along faster. Also, cases are conducted more quickly because there are fewer in the system - the number of lawsuits being filed has steadily decreased over the last 20 years. When even faster results are desired and the parties agree to proceed to trial in less than a year, some judges will accommodate their requests. Usually, however, the entire year is needed to properly develop evidence during the Discovery phase of the lawsuit.
Finally, in my case experience, enforcing the judgment (the final step of a lawsuit) is usually a comparatively simple procedure because the defendants always have insurance. Insurance companies don't like to waste time - and their money - so they usually just pay the judgment as issued. However, if the insurance company believes that the judge or jury has been too generous, an appeal of the judgment may follow. Appeals often take a minimum of two years (and sometimes much longer) to resolve.
Do not let the possibility of a drawn out process discourage you from pursuing your right to be compensated when you are damaged as the result of someone else's wrongdoing. Eighty percent of all claims are resolved before the lawsuit is filed. Of the suits that are filed, 95% are resolved (usually by mutual agreement) before going to trial. About half of our clients' cases that do go into litigation are settled within 6 months. Most of the remaining cases are resolved within a month before trial. Only a few wind up going to the "courthouse steps" or into the courtroom for trial.
Entering a lawsuit is not an easy thing for most of us to do. But at the Law Offices of Nelson Barry, we believe that, when they have a greater understanding of these basic lawsuit mechanics, our clients are more comfortable with the process and make better decisions, every step of the way.
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© 2000 Nelson C. Barry III
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