Legal battles often bring new meaning to the word stress. Knowing what to expect is half the battle of getting through the process. Although you may be one of the fortunate few who've never been a party to a lawsuit, that could change. Should you find yourself in this position, here are a few things you'll want to know.
What are the chances you'll see the inside of a courtroom?
Whether you're the plaintiff (the party that brings the lawsuit) or the defendant (the party that's being sued), don't assume that you'll have your day in court. It's quite likely your case will settle early in the pretrial phase. In fact, nearly 90 percent of all cases settle before trial to avoid costly and time-consuming litigation.
The plaintiff's case
As the plaintiff, you'd have the burden of filing the complaint and proving your case. The complaint is the document that begins a lawsuit--it tells the court what you intend to prove at trial. The burden of proof in a civil case is "a preponderance of the evidence" (51 percent). Although your burden is much lighter than the prosecution's burden in a criminal case (beyond a reasonable doubt), you will still have your work cut out for you. Even though you do have the right to represent yourself, you should consider consulting or hiring an experienced attorney.
Don't take the law into your own hands
If your case is small (e.g., $1,000) and you can't afford an attorney, you may be able to bring your case to small-claims court. Your eligibility will be based on the subject (e.g., real estate, property damage) and value of your case.
Small-claims court is also known as the people's court. Much like the television show of the same name, ordinary people tell their case to a judge, who then makes a decision after hearing from both sides and seeing all the evidence. Although attorneys generally aren't prohibited from small-claims court, their participation isn't encouraged. The purpose of small-claims court is to provide a speedy and inexpensive place to resolve the less-complicated, lower-value cases. Remember, though, that as the plaintiff, you chose the forum (small-claims court), and if you lose, you may not be allowed to appeal.
You've been sued . . . now what?
If you're involved in an accident, and someone is injured or property is damaged, you may find yourself defending a lawsuit. Whether or not you're at fault, you need to act. If you're served with court papers that say you're being sued (summons and complaint), don't just ignore them, thinking that the lawsuit will go away. The complaint needs to be answered within the time period stated on the summons (this differs from state to state). You'll probably need an attorney, so be sure to contact your insurance company as soon as possible, since your insurance company will often pay your legal defense costs.
Who is your attorney?
If your insurer takes over your defense, you may still have a choice in selecting the attorney who will defend you. However, this will depend on the type of insurance coverage that you've selected. Typically, you'll be assigned counsel by your insurer. Some companies have their own in-house counsel to represent insureds, while other companies retain private law firms on a case-by-case basis.
You're also entitled to retain your own attorney (at your own cost), in addition to the attorney appointed by your insurer. Some of the reasons why you might want two attorneys are:
- Any claims not covered by your insurance (e.g., intentional acts) won't be defended by the assigned attorney
- Plaintiff's damages may be greater than the amount of insurance you have--you'll be responsible for the excess
- You may feel more comfortable having your own attorney on hand
Keep in mind that litigation can be very expensive, and the attorneys assigned by your insurer tend to specialize in insurance defense, so additional counsel is often unnecessary.
You're the star of the show
It's important to keep in mind that your cooperation is essential to winning your case. And, even more important, if you don't participate when you're needed, your insurer may be able to deny coverage. If that's the case and the court rules against you, the money will end up coming out of your pocket.
The endless search
After your attorney has answered the plaintiff's complaint, the next step is to complete discovery (the fact-finding part of the case). This is probably the biggest and most important part of the case, because you'll find out how strong the plaintiff's case is in comparison to yours, and whether there is a possibility for settlement.
Depositions are one method of discovery. As a party to the lawsuit, you're likely to be deposed. Typically, attorneys will depose all parties and relevant witnesses. In general, depositions take place in the office of one of the attorneys. All of the attorneys will be present, and a stenographer will be there to record everything that is said (the plaintiff may or may not be present). Also, you'll be asked to testify under oath about what happened in the accident. Your attorney will want to prepare you before the deposition. Pay attention--this is sure to be good advice.
In addition to depositions, you'll be asked to provide answers to interrogatories (written questions) and respond to document requests. Some states limit the amount of information you'll need to provide. Give the information to your attorney and let your attorney deliver it to the plaintiff. Remember, if you have an attorney, neither the plaintiff nor the plaintiff's attorney is allowed to contact you directly, and vice versa. All communication should go only through the attorneys.
On with the show
If settlement negotiations are unsuccessful, the case will proceed to either a jury trial or a bench trial (the judge decides who wins). This will depend largely in part on which state you live in. Also, you'll probably be called to testify (similar to the deposition, except you'll be in the courtroom) on the witness stand.
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