Stages of a Lawsuit

At the Law office of Robert Eckard & Associates, P.A., we understand, whether you are a Defendant or Plaintiff in a lawsuit, it can be a complex, stressful and confusing time.  Therefore, we have put together a basic outline you can use to familiarize yourself with how your case will progress.  Obviously, we can only offer a summary of how the case will proceed as each and every case is different.

DEMAND LETTER

Normally, before lawsuit is even filed a demand letter is written by the plaintiff’s attorney to either the defendant or the defendant’s attorney.  The demand letter will outline the damage done to the plaintiff and the relief the plaintiff is seeking and will state a lawsuit will be filed unless the parties reach a private settlement.  This may lead to a resolution of the case before a formal lawsuit is even filed.

COMPLAINT

If the case is not resolved by demand letter, or if a demand letter is not written then the plaintiff will file a “complaint”.  Depending on jurisdictional issues, the complaint is filed in either Federal or State Court. The complaint is a written description of the plaintiff’s legal claims against the defendant.

SUMMONS

After filing a complaint, the plaintiff must serve a copy of the complaint on the defendant to start the lawsuit.  Normally, a process server will serve the complaint on each defendant at their home or another address.  Serving the complaint starts the clock for the defendant.

After the plaintiff serves their complaint on the defendant, the defendant will usually have either 20 or 30 days to answer the complaint.  The defendant can either; (a) not answer the lawsuit; (b) file a motion to dismiss; (c) file an answer.

Not answering the lawsuit is obviously the worst choice because it can be deemed a waiver of any defenses.  The plaintiff could then move for judgment and succeed without the court ever hearing any defenses the defendant may have.

MOTION TO DISMISS

The defendant files a motion to dismiss when all the materials facts taken in best light of the plaintiff still do not provide sufficient legal grounds for the relief.  Facts are not argued during a motion to dismiss, normally, the argument revolves around case law or statutory law.  Neither, the plaintiff or defendant will have to appear, the attorneys will appear for their clients.

ANSWER

Assuming, the defendant is not successful on their motion to dismiss or does not file a motion to dismiss, the defendant will file an answer.  The answer will admit, deny, or state they have insufficient knowledge with which to answer each and every allegation made in the complaint.

AFFIRMATIVE DEFENSES

In their answer, the defendant will, normally, put forth affirmative defenses which, if true, would negate the plaintiff’s otherwise valid causes of action. For instance, in a breach of contract case, the defendant may put forth the affirmative defense of prior breach or fraud, claiming while the defendant did breach the contract, he did so because of the prior breach or fraudulent actions of the plaintiff. There are many different affirmative defenses depending on the causes of action alleged and facts of each case.

COUNTER CLAIMS

The defendant may also file any counter claims they have against the plaintiff at the time they answer the plaintiff’s complaint.  Basically, a counter claim is the defendant’s complaint against the plaintiff.  A counter claim will have to contain facts to support the granting of relief to the defendant.

The plaintiff will then be called the plaintiff/counter-defendant and will have to file their own answer and affirmative defenses to the defendant/counter-plaintiff’s counter claims.

DISCOVERY

Discovery is the exchanging of documents and information each party deems material toward the lawsuit.  It almost always begin with written discovery, usually called interrogatories (written questions), requests for production (which request  a party turn over documents, pictures, and the like), requests for admissions (requiring a party to admit or deny what certain facts), and may include some other general information a party must provide by the rules. This is the most time consuming part of the case.

DEPOSITIONS

This is also part of the Discovery process. Each party will be allowed to depose any of the witnesses who may testify at trial or have information on the case.  You will most likely be deposed by the opposing party’s attorney.  At the deposition, you will be asked to answer any number of questions regarding your knowledge of the facts at issue in the lawsuit.  You will be sworn under oath and a court reporter will be there to write down all of your answers.  Don’t worry, we will be there with you and will help guide you through the process as it gets closer.

SUMMARY JUDGMENT

Either party may move for summary judgment or a judge may determine on her own initiative summary judgment is appropriate. Unlike with pretrial motions to dismiss, information such as affidavits, interrogatories, depositions, and admissions may be considered on a motion for summary judgment. Any evidence admissible at trial may support a motion for summary judgment. Usually a court will hold oral arguments on a summary judgment motion, although it may decide the motion on the parties’ briefs and supporting documentation alone.  Normally, the attorneys can appear without their clients having to attend the hearing.

For a judge to grant summary judgment two criteria must be met: (1) there must be no genuine issues of material fact, and (2) the Movant (party moving for summary judgment) must be entitled to judgment as a matter of law.

MEDIATION

Mediation, as used in law, is a form of alternative dispute resolution (ADR), a way of resolving disputes between two or more parties with concrete effects. Typically, a third party, the mediator, assists the parties to negotiate a settlement. Disputants may mediate disputes in a variety of domains, such as commercial, legal, diplomatic, workplace, community and family matters.

The term “mediation” broadly refers to any instance in which a third party helps others reach agreement. More specifically, mediation has a structure, timetable and dynamics that “ordinary” negotiation lacks. The process is private and confidential, possibly enforced by law. Participation is typically voluntary. The mediator acts as a neutral third party and facilitates rather than directs the process.

Mediators use various techniques to open, or improve, dialogue and empathy between disputants, aiming to help the parties reach an agreement. Much depends on the mediator’s skill and training. As the practice gained popularity, training programs, certifications and licensing followed, producing trained, professional mediators committed to the discipline.

The benefits of mediation include:

• Cost—While a mediator may charge a fee comparable to that of an attorney, the mediation process generally takes much less time than moving a case through standard legal channels. While a case in the hands of a lawyer or a court may take months or years to resolve, mediation usually achieves a resolution in a matter of hours. Taking less time means expending less money on hourly fees and costs.

• Confidentiality—While court hearings are public, mediation remains strictly confidential. No one but the parties to the dispute and the mediator(s) know what happened. Confidentiality in mediation has such importance that in most cases the legal system cannot force a mediator to testify in court as to the content or progress of mediation. Many mediators destroy their notes taken during a mediation once that mediation has finished. The only exceptions to such strict confidentiality usually involve child abuse or actual or threatened criminal acts.

• Control—Mediation increases the control the parties have over the resolution. In a court case, the parties obtain a resolution, but control resides with the judge or jury. Often, a judge or jury cannot legally provide solutions that emerge in mediation. Thus, mediation is more likely to produce a result that is mutually agreeable for the parties.

• Compliance—Because the result is attained by the parties working together and is mutually agreeable, compliance with the mediated agreement is usually high. This further reduces costs, because the parties do not have to employ an attorney to force compliance with the agreement. The mediated agreement is, however, fully enforceable in a court of law.

• Mutuality—Parties to a mediation are typically ready to work mutually toward a resolution. In most circumstances the mere fact that parties are willing to mediate means that they are ready to “move” their position. The parties thus are more amenable to understanding the other party’s side and work on underlying issues to the dispute. This has the added benefit of often preserving the relationship the parties had before the dispute.

• Support—Mediators are trained in working with difficult situations. The mediator acts as a neutral facilitator and guides the parties through the process. The mediator helps the parties think “outside of the box” for possible solutions to the dispute, broadening the range of possible solutions.

Mediation in Florida is always court ordered before trial and is something the parties may agree to at any time before being ordered by the Court.

TRIAL

If summary judgment is not granted or neither party moves for summary judgment, the case will proceed to trial.  The trial will be in front of either a judge or a judge and jury.  Each party will be able to call witnesses and each party will testify on their behalf in the case.  Likewise, the party will be cross examined by the opposing counsel.  Testifying at trial will be similar to the deposition, and anything you may have said at deposition can be used at trial.  The trial will be more adversarial than the deposition and we will prepare you to testify.  After both sides have put on their case, the Judge or the Jury will deliberate and determine the prevailing party.  If the plaintiff is the prevailing party, the Judge or Jury will either determine the entitled relief or damages at that time, or a short separate trial will occur to determine the damages or relief.

APPEAL

After the motion to dismiss, summary judgment, or trial, the losing party will have the opportunity to appeal to the appellate court on specific grounds.  For instance, specific grounds may include errors of law, errors of fact or errors of procedure.  The appeal is an entirely separate matter from the original case.

Of course, if you have questions about any stage of the litigation process, do not hesitate to contact us and will gladly explain whatever question you might have. We truly appreciate your business and will work aggressively for you.

Robert Eckard is managing partner of the Law Office of Robert Eckard & Associates.  Rob’s practice areas include business litigation, criminal defense, white collar crime, DUI, and international law.

The Law Office of Robert Eckard & Associates (LORE) has not been retained for any matter by you until such time as a duly executed retainer is signed by you and an authorized agent of LORE and any retainer deposit paid and returned to us.  Nothing contained herein is intended to create an attorney client relationship or be considered legal advice, as such, no conflict of interest shall be presumed in the event LORE is later retained by an adverse party.  See Rule 4-1.18 et. al., 2006 Florida Supreme Court.