THE PROCESS OF A LAWSUIT AND THE ROLES OF THE ATTORNEY AND CLIENT

The following discussion concerning the process of a lawsuit and the roles of the Attorney and client in this process is very general in nature. The discussion is not exhaustive and does not apply to every situation. It is provided simply as an overview to familiarize the reader with the litigation process and to serve as an aid in anticipating some of the events that may occur in the course of a lawsuit and the investigation before a lawsuit is filed.

Pre-Litigation Investigation

Before one files a lawsuit, an investigation should be undertaken to determine :he merits of a lawsuit and the likely amount of a recovery. In its simplest form, this pre-litigation investigation might consist of no more than a consultation between attorney and client. More often, however, the attorney may need to review documents, contact witnesses and/or conduct legal research. Sometimes, an expert must be retained to determine whether a lawsuit is meritorious; For example, in a medical malpractice case, it is generally necessary to obtain a physician's opinion.

Starting a Lawsuit

A lawsuit is started by filing a "complaint" with the clerk of court. The complaint is the formal document in which the factual allegations of the "plaintiff'--the party filing the lawsuit--are set forth. A copy of the complaint, along with a "summons," is then "served," usually personally, on each party being sued. The party being sued is called the "defendant." Upon the defendant formally responding to the lawsuit, sometimes before, formal "discovery" is begun to obtain information and develop the case for trial. Generally, discovery, which is conducted by or through the attorneys, is in the form of written questions called "interrogatories," inspection demands, requests for admissions, requests for physical or mental examinations, records subpoenas, and depositions, which are explained in the section below entitled, "Discovery."

Responding to a Lawsuit

In some situations, the complaint may be challenged for reasons such as the allegations in the complaint, even if true, do not give rise to a legal basis of recovery or the lawsuit is not filed in the proper court. More often, however, the first formal response to the lawsuit is an "answer," in which the allegations in the complaint are denied. The answer is filed with the court and served, by mail, on the attorney representing the plaintiff.

Discovery

Obtaining information to prepare for trial occurs through informal investigation, such as described above under "Pre-Litigation Investigation," and through formal "discovery" conducted through proceedings in the lawsuit. The primary means of discovery are:

Interrogatories. Written questions sent by one party to a lawsuit to another party to the lawsuit, which must be answered in writing, under oath.
Inspection Demand. Written demand sent by one party to require that another party identify and produce documents and other tangible things, for example, a car involved in an accident, for inspection.

Request for Admissions. Written request sent by one party to require another party to admit or deny, in writing, under oath, the truth of specified matters of fact and/or the genuineness of specified documents.

Request for Physical or Mental Examination. In a personal injury case, written request that the plaintiff submit to examination by a qualified physician or other healthcare provider to permit an independent determination and evaluation of the nature and extent of contended physical or mental injuries.

Records Subpoena. Order prepared by an attorney, to require that a non-party witness produce documents.

Deposition. Oral questioning of party to a lawsuit or non-party witness, under oath, taken down by a court reporter.

Pre-Trial Conferences

One or more conferences may be conducted in court before trial. The judge determines, at one of these conferences, whether the case should be assigned to arbitration or scheduled for trial. In addition to a trial date, the judge may also set a settlement conference and deadlines by which expert witnesses must be identified to the other parties and discovery must be completed. A pre-trial report, prepared by the attorneys in which trial witnesses and exhibits are identified and other information is provided, is sometimes required; a conference may then be necessary for the court to review the report. The attorneys, generally not the parties, are required to attend these conferences, with the exception of the settlement conference at which the parties must also appear.

Settlement Conference

A settlement conference may be mandatory or voluntary. Mandatory settlement conferences are generally scheduled by the court to take place several weeks before the scheduled trial date. A judge presides over the mandatory settlement conference. He meets with the opposing parties separately to learn the strengths and weaknesses of the case, and, expressing his opinions concerning the case, attempts to facilitate settlement. Voluntary settlement conferences are conducted in the same or a similar manner, but may be before a hired attorney or retired judge selected by the parties.

Alternative Dispute Resolution

Discussions and letters between the attorneys regarding settlement may occur at any stage. Other means of resolution are arbitration and mediation:

Arbitration. An arbitration is conducted by an attorney or retired judge selected by the parties. Less formal than trial, evidence is presented in a more streamline manner, resulting in substantially less time and expense than to conduct a trial. The arbitrator renders a written decision at some date after the arbitration. Arbitration may be either binding, in which case the parties waive their right to trial and are bound by the arbitrator's decision, or non-binding, in which case any party dissatisfied with the arbitrator's decision may seek a trial, which is conducted as though the arbitration never took place.

Mediation. The mediator, a hired attorney or retired judge, does not decide the dispute or necessarily even offer an opinion. Rather, he engages the opposing parties in a dialog with each other in an effort to facilitate the parties reaching a settlement between themselves. The attorneys and clients participate in mediation.

Trial

A trial may be either by jury or judge only. Depending on which, the trial is conducted in the following sequence:

Pre - Trial Motions. The attorneys argue, and the court rules, on pre-trial motions called "motions in limine."

Jury Selection. Jury panelists are questioned by the judge and attorneys to determine their suitability to serve as jurors in the case.
Opening Statement. The attorney for each party offers a statement concerning what the case is about and what the attorney expects the evidence will be. The attorney for the plaintiff presents his opening statement first and is first in each successive stage of trial.

Case in Chief. This is the evidentiary stage of the case in which witnesses testify and documentary and other evidence is offered.

Instruction of Jury. The judge instructs the jury on the law that applies to the case.

Closing Argument. The attorneys for each side "argue" the facts of the case, as established by the evidence presented during the case in chief and based on the instructions on the law given by the judge, and the attorneys urge the jury to reach a desired verdict. The attorney for the plaintiff is permitted to present a "rebuttal" argument after the defense attorney's closing argument.

Deliberation and Verdict. The jury is sent to a deliberation room to reach a decision. The jury then returns to the court room and renders its verdict which is first shown to the judge and then read aloud.

Role of Attorney

The attorney's role is essentially twofold, to 1) zealously represent the client in the litigation, and 2) advise the client of all important developments in the case and how the merits and value of the case are affected. The attorney must be free to exercise professional judgment and make strategy decisions. However, important decisions affecting ultimate resolution, such as whether to agree to binding arbitration or waive a jury trial, should not be made without consulting the client.

Role of Client

The client must be available to assist the attorney in all phases of the litigation, including investigation, responding to interrogatories and other written discovery, and being available for deposition. This means that the client must always keep the attorney informed of the client's address and telephone number and inform the attorney in advance of any plans the client has to be away for any significant length of time.

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