In a previous article we discussed what happens with an ongoing lawsuit. That discussion set out some of the steps that must be taken before a lawsuit can even be filed, and ended with unsuccessful settlement talks.
Assume for this discussion that the case involves a personal injury of some sort. All the preliminary steps have been taken, but a settlement has not yet been achieved, nor has a lawsuit been filed.
Up until this point, settlement discussions have not yielded any results, so you and your attorney have decided to file suit. Your attorney draws up the complaint, carefully crafting the facts of the case and the legal allegations against the defendant. Once the complaint is filed the litigation has officially commenced. The complaint is then served on the other side, either personally on the defendant or on their attorney if they have representation. It is important to ensure this service of process is done in strict compliance with the rules in Florida for effective service, otherwise the defense can request the lawsuit be dismissed on that basis. If that happens, the merits of the case will never be reached, as the dismissal was on procedural grounds.
Once the lawsuit has been filed and served, the defendant will respond, which means file their answer with the court. In this document they will set out their version of the facts, deny the allegations in the complaint and set out their legal defenses (and perhaps even counter-sue). The time limit to respond is usually 20 days, unless some special rules apply. This response is now “served” on your attorney.
The other side sometimes does not file the answer right away, but instead files a motion to dismiss the case. These can be based on a number of reasons set out in the Florida Rules of Civil Procedure. Perhaps they think that the complaint is not legally sufficient because it does not state a cause of action for which relief can be granted. They may state the court lacks jurisdiction over the subject matter of the suit, or the person named. There may be insufficient process or service of process that warrants the motion to dismiss. The case may have been filed in an improper venue (location). Finally, the motion may be made if the complaint fails to join parties which should be indispensable to the lawsuit. Don’t panic if a motion to dismiss is made. This is often strategy by the defense, and usually even if the motion is granted, the complaint can be amended, or the lawsuit moved to the proper court. A motion to dismiss is generally not a death knell for the lawsuit.
Let the Discovery Begin
In the past, it was common to commit “trial by ambush” where neither side really knew what the other was going to present at trial. While this makes for interesting television and movies, that doesn’t really occur much in modern litigation.
In nearly all cases, courts have adopted very generous discovery rules. Discovery is the process by which both sides find out as much as they can about the relevant facts of the case. Both sides are obliged to co-operate fully in the discovery process, and there may be severe consequences for not doing so, such as monetary sanctions, payment of some of the other side’s attorney’s fees or even dismissal of the case. The information comes from the parties themselves, or third parties, such as witnesses, doctors or other experts.
The facts that come out during discovery provide for an accurate assessment of the case which often leads to settlement before trial. Strengths and weaknesses of a given case are exposed, sometimes hastening the settlement process.
Discovery is the most time-consuming part of the litigation process, because it begins after the lawsuit is filed and served, and often does not end until just before trial. Newly discovered facts may lead to the need for additional discovery.
Types of Discovery
There are five discovery “tools” that every attorney uses. Let’s take a look at each of them, so you know what to expect in your case.
Interrogatories: Interrogatories are written questions posed by one side to the other. Very often these ask fairly basic questions such as where you reside, marital status, work information and so on. They often ask questions regarding insurance in personal injury cases. They will also ask what experts, if any, you are expecting to call at trial and what are their experience and education qualifications to be considered an expert.
The interrogatories are sent to your attorney, and their office should assist you in answering the questions. Interrogatories are answered under oath, so great care should be taken in answering the questions – you don’t want a careless answer to come back to bite you, or impeach your credibility at trial. Never try to answer the interrogatories on your own, only under the supervision of your attorney.
Depositions: Depositions are fact-finding sessions where the other attorney will ask you questions. Both sides of the litigation are entitled to depositions of parties and witnesses. When you are the one being deposed, your attorney will be present and will object to any questions they think are irrelevant or to keep the other side from asking the same things over and over.
A court reporter is present, even if the deposition is taped, and they will swear you in, so the testimony in under oath. This testimony has the same weight as testimony at trial, so it is important that the questions are answered carefully.
Your attorney should help you prepare for the deposition so that you know what to expect, and what types of questions might be coming your way. (We’ll talk more at length about depositions in another article.)
Request for Admissions: Requests for Admission are also a written discovery method. Your attorney will receive these, and they should be answered VERY carefully, as often the other side will try to get you to admit something that will have a very negative impact on your case. An example of this is “Admit that on the morning of the accident, you were negligently driving your vehicle northbound on I-95.” If you admit to this, then you are admitting you were also negligent, and that would not be a good thing.
Again, your attorney will help with the answers and their office will actually prepare the responses. These are also under oath, so care must be taken with the answers.
Request for Physical/Mental Exam: If you have put your physical or mental state at issue in the litigation (which is the point of personal injury claims) then the other side has the right to request an examination by their doctor to help determine the validity of the claim.
Request for Production of Documents: In a personal injury case, the documents requested are usually medical records which document your injuries and treatments. You will need to sign a release for your medical providers allowing access to the information.
It may seem personally invasive to allow the other side to see your medical information, but if you have put your physical or mental condition at issue, they do have the right to see the information.
Other documents that are often requested are employment records and sometimes tax returns – this is so the other side can verify any lost wages claims. You will need to sign a release for your employer to disclose the information, so don’t be surprised by this.
While you may be chomping at the bit to get to trial, the time taken for discovery is important. The value of the case is often determined during this phase, because such things as extent of injury and actual losses are crystalized. NEVER respond on your own to any discovery requests. They should be sent through your attorney, and your attorney should provide the responses.
A lawsuit can settle at any time up to the start of the trial, and many even “settle on the courthouse steps” just prior to trial. A trial can be halted if settlement is reached, so negotiations continue during trial as well.
In another segment we will discuss what goes on just before and during the actual trial.
In the meantime, if you or a loved one has been injured, you should consult with an experienced personal injury attorney, one dedicated to obtaining justice for the injured party.