E12 – 5 Things You Oughta Know About Civil Litigation
In this podcast episode, CSA Firm Managing Partner Brian Schuette and CSA Firm Senior Partner Larry Crain share 5 Thing You Ought Know About Civil Litigation, one of the firm’s primary practice areas.
Step 1- Screening Process- Determination about whether the claim is suitable for litigation.
Facts and applicable law supporting the case (There is not a legal remedy for every wrong)
Financial considerations- time and cost of filing suit (must have sufficient financial benefit to bear the cost of proceeding)
Step 2- Pre-suit Investigation– Gathering facts, talking to witnesses, determining cost involved in pursuing case, analyzing what “victory” means to the client, making sure the client has reasonable expectations, hiring expert witnesses. Things often appear one way at the beginning of a case, but when you dig into them they can be very different.
Causation- Did the act lead to the harm alleged in the case and what other factors may have contributed to the injury? In medical malpractice and personal injury cases this is often the most difficult part of the case.
Step 3- Filing the Lawsuit– There is a detailed process involved in filing a lawsuit.
Draft complaint- Important to write a thorough statement of the facts in the case providing details of the allegations and how the facts fit within a framework of a theory of liability.
Determine the appropriate venue or court that has jurisdiction over the claim.
Develop a litigation plan that will involve service of all defendants notifying them of the allegations, discovery process, and getting the case ready for trial.
In this step it is important to recognize the possibility of publicity that may be generated because of the lawsuit. This is especially true in cases of religious liberty or constitutional and civil rights litigation. Media is looking for juicy cases that will attract their followers. In cases where we anticipate this ahead of time we will often prepare a carefully drafted press release to provide the information in the way that we want it to be distributed. It is important to recognize that the media will often take a short sound bite possibly out of context that will not present the information in the way we desire. Nothing we tell a reporter is “off the record.” If contacted by the media it is better to respond with “no comment.”
Step 4- The Grind (hard work)– Gathering the who, what, when, and where of the case. It is important to complete a thorough discovery process, find out everything so there are no surprises.
Interrogatories- The other side of the case will file questions seeking information you have pertaining to the case. They will want to know everything, even information you do not consider to be relevant to the case. They are often testing your resolve to see if you are willing to unveil all the facts. They may seek copies of medical records and documents, ask to inspect evidence, want to interview your witnesses, etc. This may result in discovery disputes in which the judge will have to determine what evidence they are allowed to have. Judges often err on the side of disclosure unless there is a compelling reason not to provide the information.
Step 5- Getting the Case to the Finish Line-This may happen in one of 5 ways:
- Order of Dismissal-case does not meet all of the legal tests, hasn’t met all the elements of the case resulting in Summary Judgment.
- Settlement-parties meet and come to an agreement to settle the dispute.
- Mediation-lawyer trained in mediation sits down with both parties to try to resolve the dispute. Judges often order mediation to try to make a good faith effort to settle the case before it is scheduled for trial.
- Bench Trial- case is presented to a judge to determine the outcome.
- Jury Trial- case is presented to a jury to determine the outcome.
Epilogue- Highs and lows of the litigation process: We often get personally attached to our clients. We have a lot of time, energy and often money involved in cases and we have spent a lot of time with our clients over the course of the case getting to know them and their situation. If we lose the case, we feel it. It is personal to us. When we win, we experience their joy and if we lose we experience their pain.
For more information, go to www.CSAFirm.com.