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1st edition

The Lawsuit
Survival Guide
A Clients Companion to Litigation

By Attorney Joseph L. Matthews


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1st edition

The Lawsuit
Survival Guide
A Clients Companion to Litigation

By Attorney Joseph L. Matthews


First Edition
Second Printing MARCH 2003
Editor LISA GUERIN
Illustrations MARI STEIN
Cover Design TONI IHARA
Book Design TERRI HEARSH
Proofreading ROBERT WELLS AND KATHERINE L. KAISER
Index PATRICIA DEMINNA
Printing DELTA PRINTING SOLUTIONS, INC.

Matthews, Joseph L.
The lawsuit survival guide : a clients companion to litigation/by Joseph L. Matthews.
p. cm.
Includes index.
ISBN 0-87337-760-5
1. Complaints (Civil procedure)--United States--Popular works. 2. Action and
defenses--United States--Popular works. 3. Attorney and client--United States--Popular
works. I. Title.

KF8863.M28 2001
347.73'53--dc21 2001030367

Copyright 2001 by Joseph L. Matthews


ALL RIGHTS RESERVED. Printed in the U.S.A.
No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form
or by any means, electronic, mechanical, photocopying, recording or otherwise without prior written
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Acknowledgments
Many people at Nolo have had a hand in the project which has become this book.
Barbara Kate Repa encouraged the project in its infancy. Shae Irving and Janet
Portman did preliminary work on an early manuscript chapter, trying to hammer out
an approach that could be most helpful to lawsuit civilians. And I am very grateful
to Mary Randolph, who recognized the projects value and rescued it when it seemed
to be floundering.
The book owes its final organizational clarity and consistency to the superb edito-
rial work of Lisa Guerin. It may have been a book when it got to her, but she honed
it and polished it to a much finer shape.
Thanks, too, go to the wonderful trial lawyers from whom I have learned so much
over the years, not just about the technical aspects of civil litigation but about how to
treat human beingsespecially their clientsalong the way. These fine lawyers
include the late Stuart Buckley, Meriel Lindley and especially Dick Duane.
My final and greatest thanks are reserved for someone who combines a compre-
hensive understanding of the law, a keen and unblinking editorial eye and an
unwavering dedication to making the law accessible to all. Steve Elias took a formless
mass of words and patiently, tirelessly and always good-humoredly showed me how
it could be a book.
Table of Contents

1 Introduction
Section I: The Trouble With Lawsuits ...................................................... I/2
Section II: How to Use This Book ............................................................ I/3

1 Lawyers, Fees and Retainer Agreements


Section I: Choosing a Lawyer ................................................................. 1/3
Section II: Changing Lawyers ................................................................ 1/15
Section III: Attorney Fees and Litigation Costs ....................................... 1/18
Section IV: The Representation Agreement ............................................. 1/27
Section V: Sample Representation Agreements ..................................... 1/30

2 Working With Your Lawyer


3 Getting a Lawsuit Started: The Pleadings
Section I: The Complaint ....................................................................... 3/3
Section II: Defending Against a Complaint: Responsive Pleadings ........ 3/21
Section III: The Defendant Strikes Back: Countersuits ............................ 3/29
Section IV: Litigating on Behalf of a Minor: Guardian ad Litem ............. 3/31
4 Discovery
Section I: An Overview of Discovery ..................................................... 4/4
Section II: Interrogatories ........................................................................ 4/9
Section III: Requests for Production of Documents
and Physical Evidence ......................................................... 4/16
Section IV: Requests for Admissions ....................................................... 4/24
Section V: Depositions .......................................................................... 4/27
Section VI: Discovery Limits .................................................................... 4/38

5 Motions and Other Court Proceedings Before Trial


Section I: Motion Procedures ................................................................. 5/5
Section II: Restraining Orders and Injunctions ...................................... 5/21
Section III: Motions to Secure Assets: Lis Pendens, Attachments
and Receiverships ................................................................ 5/29
Section IV: Motions to Expand, Narrow or Move a Lawsuit ................... 5/31
Section V: Plaintiffs Motions for Default ............................................... 5/38
Section VI: Defendants Motions to Dismiss ........................................... 5/40
Section VII: Discovery Motions ............................................................... 5/43
Section VIII: Motions for Summary Judgment and Summary
Adjudication ........................................................................ 5/48

6 Mediation
7 Arbitration
Section I: Arbitration Basics ................................................................... 7/3
Section II: Arbitration or Trial? .............................................................. 7/10
Section III: Preparing for Arbitration ...................................................... 7/14
Section IV: The Arbitration Hearing and Decision .................................. 7/18
8 Settling a Lawsuit
Section I: Setting Settlement Goals and Starting Negotiations ................ 8/3
Section II: Getting Help From the Judge: Settlement Conferences ......... 8/10
Section III: Payment Options .................................................................. 8/15
Section IV: Partial Settlements ................................................................ 8/17
Section V: Finalizing the Settlement ...................................................... 8/21

9 Trial
Section I: Setting the Trial Date .............................................................. 9/4
Section II: Judge or Jury? ....................................................................... 9/10
Section III: Pretrial Proceedings and Conferences .................................. 9/13
Section IV: Preparing for Trial ................................................................. 9/17
Sections V-VIII: Trial ................................................................................. 9/22
Section V: Getting a Judge ....................................................................... 9/22
Section VI: Jury Selection ....................................................................... 9/26
Section VII: Witnesses, Evidence and Arguments .................................... 9/38
Section VIII: The Verdict or Decision ........................................................ 9/53

10 Appeals and Other Post-Trial Proceedings


Section I: The Winning Partys Final Moves .......................................... 10/2
Section II: The Losing Partys Final Moves ............................................. 10/8

Index
General
How You Can Help Your Lawyer
Introduction

Section I: The Trouble With Lawsuits ........................................................................... I/2


A. Why Lawsuits Are So Maddening .......................................................... I/2
B. The Informed Consumer ........................................................................ I/3
Section II: How to Use This Book ................................................................................. I/3
A. Lawsuits Covered by This Book ............................................................ I/4
B. How This Book Is Organized ................................................................. I/4
C. How to Use This Book ........................................................................... I/5
D. A Glossary of Legal Terms ...................................................................... I/6
I/2 THE LAWSUIT SURVIVAL GUIDE

L
ike it or not, youre stuck in a lawsuit A. Why Lawsuits Are So Maddening
whether you brought it yourself or
had it dropped on your doorstep. There are several reasons for this bleak
Unfortunately, you may be stuck for a long state of affairs.
time, through a lot of ups and downs and a First, the adversary processthe lawsuit
lot of your bank account. If you already battle for a winner and loserhas devel-
have an attorney, you may have little idea oped into a complex chess game. Obscure
what your lawyer actually does and why. legal moves, countermoves, gambits and
All you know for sure at this point is that tactics require highly trained, expensive
the lawsuit moves like molasses, could cost lawyers. All too often, clients are left
a bundle and doesnt seem to offer you a confused and unable to followmuch less
meaningful way to participate in the process. take an active role inthe proceedings.
But it doesnt have to be this way. This Lawsuits also last much longer than most
book explains each step in the litigation clients expect. Although television dramas
process, guides you through the jumble of might lead us to believe that trials usually
legal language and courtroom procedures start about a week after lawyer and client
and offers advice about assisting and working first meet, it is not unusual for a couple of
with your lawyer. Lawsuits are complicated, yearsor moreto pass between the start
time-consuming and stressful affairs. But of a lawsuit and the actual trial. Sometimes
with the help of this book and a good one or both of the lawyers are partially
lawyer, you can navigate the legal system responsible for this delay. But in many
successfully and get the best possible result courtsparticularly those in urban areas
with the least possible anxiety. overcrowding is to blame. These courts
simply have more lawsuits ready for trial
than available courtrooms at any given time.
Section I: The Trouble With Then there is the fake beard of profes-
sionalismthat is, the notion that lawyers
Lawsuits
always know best and that clients, like
A lawsuit can be an extraordinarily expen- children or sheep, are better herded than
sive, time-consuming and energy-draining heard from. Some lawyers may use this as
experience, sometimes with life-changing an excuse to avoid explaining what is go-
consequences. Nonetheless, many people ing on and to discourage you from getting
go through a lawsuit without ever knowing involved. Sadly, some lawyers even use it
exactly what is happening, let alone taking to keep clients from seeing the lawyers
an active part in important decisions along own confusion, lack of work on the case or
the way. time and money spent on needlessyet
costlylegal maneuvering.
INTRODUCTION I/ 3

All of this is made worse by the notorious Whats the point of this maneuver or
lawyers lingo. The legal system hides its procedure?
work behind a twisted mix of Latin, medi- Is it necessary?
eval French and entirely made-up words Is it important?
accessible only to thosethe lawyerswho What risks are involved?
speak the language. Although many legal Are there any alternatives?
concepts are surprisingly straightforward, What can I do to help?
the jargon used to describe them is any- When will we know the outcome?
thing but. What happens next?
Finally, there is precious little plain- Without knowing the pieces of the law-
language consumer information available to suit puzzle, you might not even know how
non-lawyers who are caught up in the law- or when to ask these questions. Nor will
suit process. Thats where this book comes you know what information or assistance to
in. It will guide you, step by step, through offer your lawyer. And if you do ask a
the litigation maze, explaining legal jargon useful question, you might not be able to
and procedures along the way. make sense of your lawyers answer.

B. The Informed Consumer

To be an effective consumer of a lawyers


servicesto get the best product at the
best priceyou have to be an informed
consumer. The more you understand about
your lawsuit, the more you can assist your
lawyerand the more likely you are to end
up with a positive result. You will also sur-
vive the long process with greatly reduced Section II: How to Use This Book
stress and worry.
Unfortunately, your lawyer may not This book can help bridge the gap between
always take the time to sufficiently explain you and the legal system. Using simple,
the lawsuit process. Instead, as your lawsuit everyday language, it explains all the major
slowly wends its way along, you may be steps and procedures of a lawsuit. From the
frustrated from time to time by some of very beginning of the process, it describes
these unanswered questions: where your lawsuit is headed, when it will
Whats taking so long? get there and what important tasks you and
Why does it cost so much? your lawyer might face along the way.
I/4 THE LAWSUIT SURVIVAL GUIDE

This Is Not a Do-It-Yourself Guide This Book Does Not Cover Every
Type of Civil Proceeding
This book does not explain how to represent
yourself in court or how to do particular Despite its extremely broad coverage,
legal tasks from start to finish. Instead, it there are a few kinds of special civil court
assumes that you are represented by a proceedings this book does not discuss.
lawyer who will do the necessary legal These include certain parts of cases in
work. Although this book can help you work bankruptcy, probate (wills, trusts and es-
successfully with your lawyer, it wont tates), tax, immigration, workers compen-
train you to be your own lawyer. For infor- sation, family law (divorce, child custody,
mation on working without a lawyer, see child support), small claims court or class
Represent Yourself in Court by Attorneys actions. Many of the procedures described
Paul Bergman and Sara J. Berman-Barrett in this book do occur in these lawsuits.
(Nolo). However, most courts also have special
rules and procedures for each of these
types of lawsuits, and these special rules
are not covered here.
A. Lawsuits Covered by This Book This book covers only civil lawsuits;
criminal cases are not discussed. For
Whether you are a plaintiff (suing) or a information on criminal court proceedings,
defendant (being sued) in almost any kind see The Criminal Law Handbook by Attor-
of civil lawsuit, this book is for you. It takes neys Paul Bergman and Sara J. Berman-
you from the search for a lawyer and the Barrett (Nolo).
very first papers in the lawsuit right through
trial and beyond. Along the way, it explains
standard procedures used in both state and
federal courts, including variations that B. How This Book Is Organized
occur from courts in one place to courts in
another. Each major stage of the lawsuit process is
Whether your lawsuit arises out of a car covered here in a separate chapter. The
accident, a dispute with a neighbor, landlord, chapters themselves are organized in a
tenant, co-owner, employer or employee, a simple-to-use question-and-answer format.
conflict with a business connection, a The questions are those that any non-law-
domestic or business partner or someone yer caught up in a lawsuit might ask about
who has provided you with services or a his or her case. The answers, which often
product, or almost any other kind of per- include real-world examples, explain:
sonal or business dispute, this book can what the legal terms mean
serve as your legal companion.
INTRODUCTION I/ 5

what a particular procedure is and highlighted in italic text, such as Motion for
how it is carried out Summary Judgment. After that first men-
what the procedure is intended to ac- tion, the term will be thoroughly explained
complish in the following paragraphs or pages, often
what work the lawyers must do re- including common examples.
garding that procedure
how long the process takes Warns You of Runaway Legal Bills.
what benefits and risks are involved Certain legal maneuvers and processes
how you can help your lawyer tend to eat up a lot of a lawyers time and, if
how to control legal fees and costs, you are paying a lawyer by the hour, a lot of
and your money. This icon alerts you to the dan-
whats coming next. ger of high lawyer fees and lawsuit expenses
For almost any civil lawsuit, this book that can easily pile up. These sidebars also
can serve as your personal guide through suggest some ways to cut your legal costs.
the litigation maze. When a lawyer says As discussed at each point where this warn-
something is happening in your caseor if, ing sign appears, there may be good reasons
for awhile, nothing seems to be happening to spend money on a particular legal proce-
this is where you can find an explanation. dure. But because of the high cost, you should
And it also suggests important questions to discuss the pros and cons in advance with
ask your lawyer along the way. your lawyer. You and your lawyer may then
weigh the potential for success and the signifi-
cance of what might be won against the likely
C. How to Use This Book cost and the possibility of losing. You and
your lawyer might also discuss alternatives to
There are several different ways to use this consider before, rather than after, your money
book. You can look over the whole book is spent.
from start to finish to get a sense of what
the entire lawsuit process entails. As your This Icon Explains How You Can Help
case approaches any particular stage in the Your Lawyer. You may be very keen to
lawsuit, you can read closely the chapter help your lawyer pursue or defend your law-
that covers that stage. suit. After all, youre the one who will be most
If you want to know about and prepare affected by the outcome. Also, at least initially,
yourself for a specific procedure, you can you probably know more about the dispute
read about it in detail after finding it in the than your lawyer. You may want to get
Table of Contents or Index. The Index will involved in the lawsuit just to keep better tabs
send you to the page on which that term on the process. And if you are paying hourly
first appears. On that page, the term is attorney fees, you might save considerable
I/6 THE LAWSUIT SURVIVAL GUIDE

money by doing some work that your lawyer out the book, some popping up on almost
would otherwise have to do. every page. These terms may be familiar to
Some lawyers are very good about including you and most can be understood from the
their clients in lawsuit tasks. They know that context in which they appear. However,
an organized, thorough client can be of great you might not be completely comfortable
assistance. But many lawyers get so wrapped with their exact meaningsparticularly
up in their own role that they dont let their because other terms are also used which
clients know how the clients can help. As a are completely or nearly interchangeable.
result, a client who wants to be involved might So, as you begin to use this book, you may
cause friction with the lawyer and run up un- want to refer back to the following glossary
necessary legal bills. Or a client might plunge for a handy reminder:
into a project hoping to be helpful, only to partylitigantsideclientplaintiff
find out later that it was a waste of time and defendant. A person, business or
energy. Or a client might just sit and stew, other organization or entity which
wanting to be involved but not knowing how. sues or gets sued is called a party to
This book makes a special effort to explain the lawsuit. Litigant is another term
what you can do to help your lawyer at each for party, used to indicate that a
stage of the legal process. For some procedures formal lawsuit has begun (as distin-
and maneuvers, there may be very little, if guished from a party to a contract, or
anything, for you to do. For others, however, a party to a dispute that has not yet
you may be able to search for and organize become a lawsuit). Every lawsuit has
information, make sure your lawyer has the at least two sides, meaning parties
necessary facts and prepare yourself for those with opposing interests in the outcome.
parts of the lawsuit in which you must partici- In most lawsuits, the party suing is
pate personally. This icon appears next to tips one side (the plaintiff) and the party
that speak directly to you, the client, about being sued is the other side (the
the ways you can pitch in to help your lawyer. defendant). A lawsuit may also
You will find a list of all of these tips, and the include countersuits against third
page on which they appear, in the Index at parties, in which case it might have
the back of this book. more than two sides. (See Chapter 3,
Section III.) Client refers to a party
in the context of the relationship with
D. A Glossary of Legal Terms his or her lawyer. (A lawyer and
client should discuss the procedure
There are a number of legal terms that you before the lawyer begins work on
will begin to see almost as soon as you it.)
open this book. These terms appear through-
INTRODUCTION I/ 7

attorneylawyercounsel. These lawsuit costs must be borne by the


terms are completely interchangeable. client and cannot be recovered from
They refer to anyone who is authorized the opposing side. (See Chapter 2,
to practice law. Each of these terms is Section III.)
used for a lawyer who actively handles lawsuitlitigationcaseaction. The
lawsuits and appears in court, as well term lawsuit refers both to the initial
as for someone who gives legal advice court papers filed by a person suing
but does not handle lawsuits. Counsel someone else (The lawsuit was filed
is more formal than the other two, of- on February 1st) and to the entire
ten used by judges and lawyers when legal process that follows (The law-
describing a procedure to be followed suit took three years from start to
or a relationship in the lawsuit (as in finish). Litigation may refer to a
Counsel for the opposing side must particular lawsuit (The lawyer who
be notified within ten days, or Is the represents the defendant in this
witness represented by counsel?), but litigation) or to all of the various
it means the same thing. procedures that make up the lawsuit
feecostexpense. The money a process (All litigation will be sus-
client pays his or her lawyer for pended while the two sides seek to
representing the client is called an mediate their dispute). Case is a
attorney fee. (See Chapter 2, Section general term that is used to refer to a
III.) There are also fees paid to the legal dispute whether or not it becomes
court for filing legal papers and for a formal lawsuit (Has the lawyer
certain other official court functions. handled a case like this before?).
A cost is an expenditure, associated Action is a more technical word for
with the handling of a lawsuit, made lawsuit. Court personnel sometimes
by a lawyer on behalf of a client. Cer- use this term when they refer to a
tain kinds of expenditures are consid- lawsuit by its official identification
ered proper lawsuit costs, and must number (Action number 12345 will
be paid by the client. And the losing be heard in Courtroom 4 at 9:00
side in a lawsuit usually has to pay a.m.). It is also a short hand term for
the winning sides lawsuit costs. a legal right to sue someone. (The
Those amounts spent by a lawyer that lawyer believes that the conduct
are not official lawsuit costs are described would support an action
considered expenses that must be for damages.)
borne by the lawyers office as over- courtjurisdictioncourt system. The
head. Likewise, amounts spent by a federal government and each state
client that do not qualify as official maintains its own separate judicial
I/8 THE LAWSUIT SURVIVAL GUIDE

(court) system. Each of these systems orderrulingdecision. During a


is further divided into smaller sections lawsuit, lawyers frequently ask a
by district or county. At times this judge to interpret some rule or to
book will mention that a lawsuit order the other side to comply with a
procedure is permitted in a certain procedure. (See motionrequest
jurisdiction, or that some courts application above.) A judges response
have different rules or procedures. to the request is known as a ruling
These terms refer to the court system or decision. The official document,
where the lawsuit is being conducted or verbal direction, from the judge
that, through its particular rules, con- that precisely states the ruling is
trols how the lawsuit proceeds. (See known as an order or court order.
Chapter 3, Section I.) reliefawardrecoverydamages
judgecourt. Throughout this book compensation. All these terms refer to
you will read about lawyers asking what a party seeks to win by filing a
the court to make a ruling, or about lawsuit. Relief refers to a benefit
the court ordering that something ordered by a judge or jury. It can
happen in the case. When used in include not only money but almost
this way, court simply means a anything else that might be sought in
judge. When the book refers to a lawsuit, such as ownership of
filing documents with the court, it property or a business, an order for
means giving or sending the papers someone to do or stop doing some-
to the court clerks office, where they thing or termination or enforcement
are officially marked as received, of a contract or lease. Relief may also
placed in the courts file for your case refer to a temporary benefit ordered by
and eventually read by a judge. a judge. Award similarly refers to
motionrequestapplication. Lawyers what a judge or jury would grant to a
frequently ask a judge to order that party at the end of a lawsuit, but it
another party do or refrain from doing usually refers only to a sum of money.
something, or to interpret some Recovery, damages and compen-
procedure about which the parties sation all refer to the money one
disagree. This is done through a pro- party pays the other at the end of the
cess referred to as making a motion, lawsuit. Unlike award, these terms
request or application. Sometimes include money that changes hands as
one term is used, sometimes another, the result of a settlement between the
but all mean the same thing. parties as well as by a judges or
jurys decision.
Chapter 1

Lawyers, Fees and Retainer Agreements

Section I: Choosing a Lawyer ..................................................................................... 1/3


1. What is the best way to find a good lawyer? ......................................... 1/3
2. Where can I get referrals to an appropriate lawyer? .............................. 1/5
3. Once I have some referrals, what should I do next? ............................. 1/7
4. I have been sued and my insurance company is going to
defend me. Can I choose the lawyer who does the job? ....................... 1/7
5. Are only certain kinds of lawyers permitted to represent me in court? .... 1/8
6. How can I find out if a lawyer has the right litigation experience? ....... 1/8
7. Do lawyers specialize in particular areas of law? ................................. 1/9
8. Does a lawyers fee tell me anything about how good the lawyer
will be? ............................................................................................... 1/10
9. What should I ask potential lawyers about fees and costs? ................. 1/10
10. Should I talk to potential lawyers about my attitudes
towards the lawsuit? ........................................................................... 1/11
11. The lawyer I want to hire works in a law firm. Will other
people in the firm also work on my case? .......................................... 1/12
12. Does the size of a law firm affect the quality of the
representation it provides? .................................................................. 1/13
13. Can a conflict of interest prevent me from hiring a lawyer I want? ..... 1/14
14. Can a lawyer represent me despite a conflict of interest? ................... 1/14
Section II: Changing Lawyers .................................................................................... 1/15
15. If I already have a lawyer, can I hire a new one to handle
my lawsuit? ......................................................................................... 1/15
16. Can I change lawyers after a lawsuit has begun? ................................ 1/15
17. If I decide to change lawyers, who gets the fees? ................................ 1/15
1/2 THE LAWSUIT SURVIVAL GUIDE

18. What is the procedure for formally switching from one


lawyer to another? .............................................................................. 1/16
19. Can my lawyer drop me as a client? ................................................... 1/17
20. Can my lawyer be forced to continue representing me in
the lawsuit? ........................................................................................ 1/18
Section III: Attorney Fees and Litigation Costs ............................................................ 1/18
21. What is the range of fees I may be facing if I pay my lawyer
by the hour? ....................................................................................... 1/18
22. What is a retainer? .............................................................................. 1/19
23. What can I do initially to control hourly fees? .................................... 1/19
24. When would a lawyer work for a percentage of my recovery
rather than for an hourly fee? ............................................................. 1/21
25. Will I have to pay a retainer in a contingency fee case? ..................... 1/21
26. How much do lawyers charge as a contingency fee? .......................... 1/21
27. How is a contingency fee calculated? ................................................ 1/23
28. Can my lawyer collect fees from the other side? ................................. 1/23
29. Do lawyers ever handle a lawsuit for a lump sum fee? ....................... 1/24
30. What are litigation costs and why should I worry about them? ........... 1/24
31. What is usually considered a litigation cost rather than
merely a lawyers normal business expense? ...................................... 1/25
32. Are there expenses I should not have to pay? ..................................... 1/26
33. When will I have to pay litigation costs? ............................................ 1/26
34. In a contingency fee or attorney fee award case, do I have to
pay litigation costs even if I lose the lawsuit? ..................................... 1/27
Section IV: The Representation Agreement ................................................................. 1/27
35. What important financial issues must be included in a
representation agreement? .................................................................. 1/27
36. What other provisions are typical in a retainer agreement? ................ 1/28
37. Must I agree to use the lawyers standard representation
agreement? ......................................................................................... 1/29
38. Can my lawyer and I change our representation agreement
once the case is underway? ................................................................ 1/29
Section V: Sample Representation Agreements .......................................................... 1/30
LAWYERS, FEES AND RETAINER AGREEMENTS 1/ 3

O Section I: Choosing a Lawyer


ne of the firstand most impor-
tanttasks a party faces is
choosing a lawyer. Once a This section raises some key issues to con-
lawyer has been selected, the client will sider when taking that crucial first step of
have to make a formal agreement with the choosing a lawyer.
lawyer about how the lawsuit will be
conducted and how the lawyer will be
paid. 1. What is the best way to find a
This chapter addresses the process of good lawyer?
selecting a lawyer. The chapter also explains
a clients right to change lawyers. And it There is no right or wrong way to look for
discusses the key elements that must be a lawyer. Perhaps the best way to find a
contained in any written representation good lawyer is through referralsrecom-
agreement between a lawyer and client. In mendations from friends, family members,
particular, it focuses on the ways in which business associates or local trade or bar
a lawyer might be paid, and the extent to associations. The goal is to find a lawyer who
which the client will be responsible for is able to provide the right kind of repre-
other expenses of litigation. sentation for a particular client in a particu-
lar lawsuit. This means the client might
You Might Not Need This Chapter. need to speak with several lawyers before
You may already have hired a lawyer finding one who seems right for the job.
to represent you in your lawsuit. And you may Many lawyers charge nothing for an
be well satisfied with that lawyers experience initial meeting to discuss the possibility of
and willingness to meet your needs in the case. representing a client. However, some
You and the lawyer may also have settled lawyers require potential clients to pay a
upon a fee arrangement with which you are consultation feea fee for meeting with
comfortable. If so, consider skipping this the lawyer to discuss the facts and law
chapter altogether. But even if you already relating to the lawsuit and the possibility of
have a lawyer, it may be a good idea for you working together. Generally, this fee should
at least to skim this chapter. Information you cover any time the lawyer spends review-
can find here about communicating with your ing documents, researching the law and
lawyer and about fee arrangements may meeting with the client. A client who is un-
enhance your existing relationship. This willing or unable to pay a consultation fee
chapter also gives information on changing should ask the lawyer to waive the fee. Even
lawyers, which might come in handy down lawyers who usually charge a consultation
the road. fee will probably meet with a client for free
if they believe the case is a strong one.
1/4 THE LAWSUIT SURVIVAL GUIDE

Why Hire a Lawyer

This book is written for parties to a lawsuit ments are negotiated, it is generally
who have decided to hire lawyers to repre- easier for a lawyer to reach a settlement
sent them. Of course, some people choose than it would be for a self-represented
to go it alone; they represent themselves in person.
court, sometimes with great success. Those Give the client a reality check. A law-
considering this option can find information yer with experience litigating similar
and guidance in Represent Yourself in cases can provide an objective and in-
Court: How to Prepare & Try a Winning formed evaluation of the range of likely
Case, by Attorneys Paul Bergman and Sara outcomes if the case goes to trial. This
J. Berman-Barrett (Nolo). perspective will help the client decide
Representing oneself is not a good option how aggressively to litigate the case
for everyone or for every type of lawsuit, and whether to accept (or offer) a
however. Many people have neither the proposed settlement.
time nor the inclination to learn the many Be familiar with the legal rules that
technical legal rules that apply to every law- apply to the clients lawsuit. Although
suit, to do the research, investigation and a self-represented person can certainly
preparation necessary to adequately repre- learn these rules, it would take a lot of
sent themselves or to determine the realistic time. And in some cases, the rules are
value of their case. This is where a good too complex for a non-lawyer to master
lawyer comes in. A client can expect the without some training and experience.
lawyer not only to do the legal work neces- Be familiar with local court customs,
sary to prepare the case for trial, but also to: procedures and personalities. A lawyer
Try to settle the lawsuit, if a settlement will have a sense of which judges are
can be negotiated that benefits the cli- most likely to favor a clients side of the
ent. Because lawyersespecially law- dispute, whether a local jury is liable to
yers in the same geographical area who award high (or low) damages and what
specialize in the same fieldtend to to expect from opposing lawyers.
know each other, and know how settle-
LAWYERS, FEES AND RETAINER AGREEMENTS 1/ 5

When searching for a lawyer to handle Conversations With Lawyers


a dispute that has reached the lawsuit Are Confidential
stage, a client should seek referrals specifically
to a litigator or trial lawyer, and preferably to The private conversations between a
one who has experience with cases involving lawyer and a client are protected from
the same area of law. (See Questions 5-7, disclosure by the attorney-client privilege.
below.) This privilege declares that no onein-
cluding other parties, government agencies
or courtscan force a lawyer or client to
2. Where can I get referrals to an reveal what has been said or written in
appropriate lawyer? private between the two. This protection
applies even if you have not yet hired the
Lawyer referrals come from many sources. lawyer to represent you, and even if you
Lawyers. Lawyers frequently refer cases to decide not to hire that lawyer at all. As
one another. Any lawyer probably knows, long as you are speaking with the lawyer
or knows some other lawyer who knows, a about your legal matters, your conversa-
litigation specialist familiar with the area of tion, and any written communication
law involved in a particular case. However, between you, is protected from anyone
just because a lawyer does the referring elses prying.
does not mean that the lawyer being This means that when you interview
referred is right for the job. A client must lawyers to decide whether you want them
still personally evaluate any lawyer being to represent you, you may freely discuss
considered. both the facts of your lawsuit and your
Business Associates and Trade Organizations. attitudes toward it. In fact, it is very
If a lawsuit arises out of a business dispute, important that you discuss the case fully
people in the same or other businesses and openly. Only if you give the lawyer a
might have been involved in litigation of complete picture of the case can the
their own. If so, they may be able provide lawyer give you an accurate and useful
references to lawyers they used and liked, opinion about how the case might be
or warn about lawyers with whom they had conducted, what its outcome might be and
bad experiences. Trade organizations or how much it might cost.
local groups that represent the interests of
business owners, such as the Chamber of
Commerce, may also have lawyers to
recommend.
1/6 THE LAWSUIT SURVIVAL GUIDE

Friends and Acquaintances. As an initial names of local lawyers who specialize in


referral device, it can be very useful to that area of the law. However, most bar
canvass friends and acquaintances about associations do not screen lawyers for
their experiences with litigation and to get competency or experience, so a referral is
referrals to lawyers whom they found help- not the same as a recommendation. The
ful. However, a personal recommendation client must independently evaluate whether
is never enough. Litigation is complicated, the lawyer would be right for the case.
and can vary considerably depending on Government Agencies. Certain state and
the parties and area of law involved. A federal government agencies are respon-
lawyer who does well for one client, or has sible for enforcing laws that protect the
the time and energy to devote to one case, public. For example, the Equal Employment
wont necessarily do as well on another Opportunity Commission (EEOC) enforces
case. Regardless of how highly someone is the laws prohibiting discrimination in the
recommended, clients should always evalu- workplace and the Securities and Exchange
ate how the lawyer might handle their Commission (SEC) acts to prevent investors
particular cases. from being defrauded. In some cases, these
Bar Association Referral Service. Many agencies will get directly involved in a
county and city bar associations offer lawyer lawsuit, particularly if the lawsuit addresses
referral services for the public. Potential important and new legal issues in the field.
clients can contact these services by calling Even if they dont take the case, a few
the city or county bar association and asking government agencies will provide referrals
for the lawyer referral line, or, increasingly, to local lawyers who handle similar lawsuits.
through the Internet. Once the caller de- As with referrals from bar associations,
scribes the type of case for which represen- however, these referrals may not be
tation is needed, the service provides the screened.
LAWYERS, FEES AND RETAINER AGREEMENTS 1/ 7

3. Once I have some referrals, what strategy and check out the lawyers
should I do next? communication skills. All of these factors
discussed in Questions 5-12will help the
The first step for anyone shopping for a client decide whether to hire the lawyer. Of
lawyer is to call the lawyers who have been course, the lawyer will also use this meeting
referred by others. Often, a member of the to decide whether to take the case. The
lawyers staff will question the client about lawyer will be thinking about the cases
the case and ask who referred the client. If strengths and weaknesses, how lucrative
the lawyer is available and interested in the the case might be, how much work the
case, client and lawyer will arrange to meet case would require and whether the client
at the lawyers office. and lawyer are likely to get along during
the litigation.

How You Can Make a Fir


st Meeting Successful 4. I have been sued and my insurance
company is going to defend me. Can I
Before your first meeting with a lawyer, choose the lawyer who does the job?
gather your thoughts and your paperwork.
Think about all the important incidents Probably not. Many kinds of insurance
that led to the lawsuit. It is a good idea to policies require the insurance company to
write down these events, either in a time- defend the policyholder in any lawsuit that
line form or simply as a descriptionas if arises from activity covered by the policy
you were telling the story in a letter. If you (for example, a policyholder who is sued
do make a written summary, bring it with because of a car accident may be entitled
you to the meeting with the lawyer. Also to legal representation through the auto
bring the names, addresses and phone insurance provider). This means the insur-
numbers of witnessesanyone who might ance company must provide and pay for a
have information about the dispute. And lawyer to defend the policyholder. Usually,
bring any documentscontracts, letters, an attorney selected by the insurance
business records, plans or photographs, for company handles the defense. Since the
examplethat relate to the case. insurance company not only has to pay the
lawyer but also must pay damages that
result from the lawsuit, it gets to choose the
During this meeting, the client can ask lawyer. The lawyers job, in effect, is to
about the lawyers litigation experience, protect the insurance companys money.
find out the lawyers initial view of the Because insurance companies are very
case, discuss fee arrangements and legal good at protecting their money, they
usually hire very competent attorneys.
1/8 THE LAWSUIT SURVIVAL GUIDE

An Insurance Companys is allowed to represent a party in that law-


Conflict of Interest suit. However, even the smartest, most
understanding lawyer in the world may be
In some situations, a lawyer for your insur- of little use in a lawsuit if he or she is not
ance company might have a conflict of experienced in litigation. Surprisingly, most
interest in representing you. (Conflicts of attorneys are notthey handle business
interest are discussed in Questions 13 and transactions, taxes, real estate, wills and a
14.) This can happen if the amount you host of other matters, none of which usually
might owe as a result of a lawsuit could be gets them near a courtroom. Many other
greater than your insurance coverage lawyers do some minor or specialized court
(known as excess liability). In such cases, work but do not handle litigation from start
the insurance company has a potential to finish. None of these lawyers is a good
conflict of interest because the lawyer is bet to represent a party in a lawsuit involv-
interested in saving the companys money, ing complicated factual or legal issues, or
not yours. The companys lawyer has little one with a lot of money at stake. Instead,
incentive to do much work trying to save someone suing or being sued is probably
you from having to pay the excess amount best served by a lawyer who regularly
out of your own pocket. In such potential handles lawsuits through the entire litigation
conflict situations, the law in a few states process, and who has experience actually
permits the insurance policyholder rather going to trial.
than the insurance company to choose a
lawyerknown as independent counsel
though the insurance company still has to 6. How can I find out if a lawyer has
pay the lawyer. If you believe that what the right litigation experience?
you might owe on a lawsuit greatly exceeds
your insurance coverage, consult with an The easiest way is to ask the lawyer directly.
experienced litigation lawyer of your own Some questions to ask in determining a
choosing to find out if you have the right lawyers litigation experience include:
to independent counsel. how long the lawyer has been in
practice
how much of that time the lawyer has
spent litigating and practicing the
type of law in question
5. Are only certain kinds of lawyers
what percent of the lawyersnot the
permitted to represent me in court?
law firmspractice involves litigation
how many trials and arbitrations the
No. Any lawyer who is licensed to practice lawyer has personally conducted
in the jurisdiction where the lawsuit is filed
LAWYERS, FEES AND RETAINER AGREEMENTS 1/ 9

during the previous five years (the Lawyers are sometimes a bit sensitive
number need not be largefive or six when quizzed on their qualifications. But
trials and a like number of arbitrations this is information a party to a lawsuit must
may be plenty) have before deciding whether to hire the
how many of those were jury trials, and lawyer. If a lawyer cannot gracefully accept
what the results were of those trials. such direct questions, that does not bode
well for the lawyers ability or willingness
to communicate with the client through the
Your Regular Lawyer Might Not usually long and sometimes very difficult
Be Right for This Lawsuit course of litigation.

On a previous occasion in your business


or personal life, you may have used the 7. Do lawyers specialize in particular
services of a lawyerand that lawyer may areas of law?
have provided you with excellent legal
assistance. So, when you become involved Yes. Like doctors, most lawyers specialize.
in a lawsuit, you might consider going Some handle divorces, some give tax
back to this same lawyer. However, this advice, some work on corporate mergers,
lawyer may have little or no litigation some write wills and contracts, some do
experience or know little about the area of criminal defense. Some do a little of this
law that the lawsuit involves. Unfortunately, and a little of that. But unless a lawyer has
it too often happens that instead of imme- at least some experience in the legal area
diately referring you to an appropriate liti- involved in a particular lawsuit, that lawyer
gation attorney, your regular lawyer hangs might not be the best to handle the litigation.
onto your case to try to settle it quickly. The facts in every lawsuit are at least
Once it becomes clear that you need a somewhat different. On the other hand,
trial lawyer, a lot of time may have passed. every lawsuit has many procedural similari-
In smaller, simple cases, this delay causes ties. This means that it is neither practical
no harm. But in more complicated cases, nor necessary to look for a lawyer who has
valuable opportunities to develop evidence experience handling lawsuits that are ex-
may be lost, and seemingly innocent steps actly like the clients case. But the lawyer
taken by your regular lawyer might prove should at least have some experience in the
in the long run to be litigation blunders. If same area of law as the clients case. For
your regular lawyer is not qualified to example, if a lawsuit involves the break-up
handle your lawsuit all the way through of a partnership that ran a florist business,
trial, ask that lawyer to refer yousooner there is no need for a lawyer who has
rather than laterto someone who is. previously handled cases dealing with
1/10 THE LAWSUIT SURVIVAL GUIDE

florists or flowersbut it is important to in detail in Section III, below, fee arrange-


have a lawyer with experience litigating ments should be discussed at the outset,
business partnership disputes. before a client makes a final decision about
hiring a lawyer. If the lawyer will charge by
the hour, there should be an open and
8. Does a lawyers fee tell me anything honest discussion about how much the
about how good the lawyer will be? client can or is willing to pay for the entire
litigation. A lawsuit can be conducted in
Not necessarily. A less expensive lawyer quite different waysthe more aggressively
might be able to do just as well as, if not it is waged, the more lawyer hours the
better than, a more expensive lawyer. There client has to pay.
is no direct relation between the fee a lawyer The client should also ask the lawyer for
charges and the quality of the work that some ideathough it might be quite specu-
lawyer would perform in a particular law- lative this early in the processof how
suit. A lawyer who charges high fees may much the client is likely to receive from, or
do so because of a large overhead or a large have to pay to, the other side at the conclu-
reputation rather than a large talent for liti- sion the lawsuit. Once these figures have
gation. For example, a lawyer with a plush been discussed, the lawyer can conduct the
office in a downtown skyscraper may charge litigation in such a way that attorney fees
considerably more than a lawyer in a smaller remain in balance with what the client
office away from the high-rent district, but stands to gain or lose. If fees get too high
that plush office is probably not going to help despite the lawyers restraint, the lawyer
very much during the course of litigation. will know that it might become necessary
Or a lawyers fees may be high because the to push for settlement of the case rather
office is heavily staffed to handle big, than to continue headlong with litigation.
corporate litigation. But if a client doesnt
need all that firepower to handle a relatively
small lawsuit, why pay for it?

9. What should I ask potential lawyers


about fees and costs?

When choosing a lawyer, one of the most


important considerations is the amount of
the lawyers fee and how it will be calcu-
lated. Although this question is addressed
LAWYERS, FEES AND RETAINER AGREEMENTS 1/ 1 1

want a lawyer to reflect that hostility in


What Is My Case Worth?
conducting the lawsuit because of the
At the beginning of the litigation, dont aggression it will provoke from the other
expect a lawyer to give you a bottom dollar sideand the accompanying stress and
assessment of what you can expect to win expense.
or lose in your lawsuit. The value of a Some clients have a disagreement but no
lawsuit depends on many things; many of great ill will against the other side in the
them are outside the lawyers control, and lawsuit, and therefore prefer to keep the
some of them probably havent happened proceedings calm and civilized. A client
yet. For example, documents you get from might also want the matter settled as soon
the other side may provide unexpected as possible, even if that means accepting a
support for your arguments; a witness you settlement that is not as favorable as what
thought would back you up might change might be won if the lawsuit were pursued
sides; or your opponent might hire lawyers full bore. If so, the client might want the
who couldnt argue their way out of a lawyer to steer the proceedings into what is
traffic ticket. At the outset, your lawyer called alternative dispute resolution (media-
can only give you some range of the tion or arbitration) rather than litigation.
possible outcomes, perhaps including (See Chapters 6 and 7.)
awards in similar cases. As the case Whatever the clients approach, a lawyer
progresses, this assessment will become should respect it. From the very first discus-
more refined and help you decide whether sions between a lawyer and potential client,
to settle the case or take it to trial. the client should make sure the lawyer
understands the clients approach to the
lawsuit and to the other side, and agrees to
conduct the litigation accordingly. Some of
10. Should I talk to potential lawyers the specific issues a client might want to
about my attitudes toward the discuss with a lawyer up front are:
lawsuit? how much money is to be spent on
the lawsuit, balanced against how
Yes. Lawsuits can be extremely hostile much money might be paid to or
affairs. And hostility may be what a client collected from the other side
most feels about the opposing party in the what the client feels is right or fair
lawsuit. If so, the client might want a and how this can best be achieved
lawyer to litigate the case as aggressively as how much time and energy the client
possible (and affordable). On the other is willing to spend on the lawsuit
hand, even if a client has great hostility how much control the client wants or
toward the other party, that client might not expects to have over litigation decisions
1/12 THE LAWSUIT SURVIVAL GUIDE

how important it is to the client to end


Learn From Your Lawyer
the whole thing as soon as possible,
and Good lawyers who litigate cases have a
how important it is to the client to very particular kind of expertise: they know
exact as much retribution as possible what litigation is like, what results are
from the other side. possible and what kind of toll it can take
on a client. Even if you are sure you want
to litigate to the death, or settle at the first
possible moment, listen to your lawyers
Communication Is Key
advice on these matters. Your lawyer can
There are some important intangibles in offer you a perspective that is informed by
choosing a lawyer. How well does the experience and usually has the benefit of a
lawyer listen to you? Does the lawyer little more emotional distance from the
answer your questions? Do you feel issues in the case. Of course, you may not
comfortable speaking honestly with the agree with your lawyers advice; if you
lawyer? Does the lawyer seem willing to dont, your lawyer should accept your
accommodate your wishes about how to decision. But your lawyers advice and
approach the case? Can you easily under- expertise are part of what youre paying for
stand what the lawyer says? Do you get you may as well get your moneys worth.
the sense that the lawyer wants you to
know what is going on and to participate
in major litigation decisions when appro-
priate? 11. The lawyer I want to hire works in
These lines of communication will prove a law firm. Will other people in the
important as the lawsuit drags on. The firm also work on my case?
lawyers willingness to listen and ability to
understand may affect how much help you Probably. The individual lawyer responsible
can give the lawyer and whether you can for all major decisions regarding the litigation
exercise some control over the lawsuit. and who actually handles major legal
The lawyers willingness and ability to maneuvers and trial if the case gets that
explain what is happening in the litigation faris known as the lead attorney. But in
will likewise affect your capacity to make law offices large and small, a certain amount
informed judgments about the case. And of work on any lawsuit is done by people
your mutual understanding may make the other than this primary lawyer. Other lawyers
entire process much less stressful. in the office (often called associates), para-
legals (trained legal assistants similar to
nurses in a doctors office) and legal secre-
LAWYERS, FEES AND RETAINER AGREEMENTS 1/ 1 3

taries all will perform tasks during the and key witnesses and preparation of the
course of litigation. client for his or her own deposition.
This division of labor is due in part to
erratic demands on lawyers time. Also,
much legal work is routine and therefore 12. Does the size of a law firm affect
can be done equally well by legal workers the quality of the representation
with less training (and lower salaries). It is it provides?
a division of labor that can help or hurt a
client. The client benefits if work gets done There is no simple answer to the question
more quickly and efficiently by others in of whether a large law firm or a small one
the office. This might be the case if the lead is better for any particular case. Most im-
attorney would not be able to get to the portant is the quality of the lead attorney,
work right away. If the client is paying by and excellent lawyers can be found in any
the hour, it can be to the clients financial size firm. However, it is important that the
advantage to have routine work done by lead attorney have time for the case. In a
people with a lower hourly rate. (See big firm, a lawyer may have less time to
Section III.) On the other hand, the clients give to any one case. Also, large firms tend
case might be harmed if important work is to be highly bureaucratic, so it can be diffi-
left to members of the office with less train- cult to get personal attention from the lead
ing or experience. lawyer and from other staff working on the
For these reasons, a potential client should case. And lawyers in large firms are under
ask who will work on what parts of the liti- pressure to bill many hours of work
gation. Of course, a lawyer does not know whether a case needs it or not. They also
in advance exactly who will do every piece tend to spend the clients money freely on
of work. But the lawyer can at least describe litigation expenses.
how busy he or she is likely to be over the On the positive side, large law firms have
next six months to a year, and therefore greater resources. They can marshal many
how much attention the lawyer can devote people to work on the case, if necessary.
to the case. For example, if the lawyer is to They are also better able to front the money
begin a big trial within the next few months, for costs in an expensive lawsuit (one
the client must realize that this lawyer will requiring a lot of depositions or expert
have very little time or energy for any other testimony, for example). And a large firm is
cases during that time. more likely to have legal staffparalegals,
Also, lawyer and client should discuss legal secretaries and less-experienced
which parts of the litigation the lawyer lawyerswho can do much of the routine
intends to handle personally, such as the legal work in a case at lower cost to a
trial, depositions of the opposing parties client paying by the hour.
1/14 THE LAWSUIT SURVIVAL GUIDE

13. Can a conflict of interest prevent the limited assets. And if the clients are
me from hiring a lawyer I want? both Defendants, a conflict might exist
because each could wind up trying to shift
A lawyer may not represent a potential legal responsibility onto the other.
client if the lawyers connection to some-
one or something else creates a conflict of
interest. A conflict of interest arises when 14. Can a lawyer represent me despite
the lawyers representation of one client a conflict of interest?
might require the lawyer to make an
argument, pursue a legal strategy or use In some circumstances, the potential benefit
information that could harm the interests of to clients of sharing the same lawyer may
anotheror formerclient of the same outweigh the dangers of a conflict of inter-
lawyer. For example, a lawyer who has rep- est. If clients can split hourly attorney fees,
resented a business might not be permitted rather than pay separate lawyers, they
to represent a former partner in a lawsuit might save a tremendous amount of
against the business. Even connections that money. If the same lawyer worked for
have nothing to do with the current dis- more than one contingency fee client, the
pute, and have ended long before, may lawyer might offer a reduced rate to each.
create a conflict. For example, the lawyer This situation may arise when two or
who previously handled a divorce for one more potential clients are Plaintiffs suing
party in a current contract dispute might the same Defendant. (See Chapter 3,
want to represent an opposing party in a Questions 2 and 3.) Or it can be two or
lawsuit about the contract. However, legal more Defendants being sued by the same
rules of ethics hold that the prior relation- Plaintiffs. (See Chapter 3, Section II.)
ship creates a conflict of interest. And if the Parties might share the same lawyer by
lawyer previously represented parties on waiving a conflict of interest. The first step
both sides of a current dispute, the rules in such a waiver is for the lawyer to thor-
might prevent the lawyer from representing oughly discuss with the parties the various
either one in a new lawsuit. ways in which the conflict might arise
A conflict of interest also may arise when during the case. The second step is for the
a lawyer sought by one party has already lawyer to advise the clients to seek an out-
been hired by another party on the same side legal opinion about whether or not to
side in a lawsuit. For example, if the waive the conflict. This would mean spend-
potential clients are both Plaintiffs, a con- ing time and money to go over the situation
flict could arise because the Defendant with a lawyer from a different law firm. A
might have limited resourcesthe clients lawyer is obligated to make this suggestion;
would have to compete with each other for however, the clients are not obligated to
LAWYERS, FEES AND RETAINER AGREEMENTS 1/ 1 5

act on it. Finally, the lawyer should explain There are many reasons why a client might
the conflict in writing and have the clients want a change. The client and lawyer might
sign it, to show that the clients have been disagree frequently about how the case is
fully informed of the potential problems. being handled. The lawyer might be ignor-
ing the clients requests to keep fees and
costs down. Perhaps the lawyer is not keep-
Section II: Changing Lawyers ing the client informed about the progress
of the case or of settlement discussions with
This section discusses the circumstances in the other side. Or the lawyer might not
which a client might change lawyers, and seem to be giving the case much attention.
how such a change is accomplished. Maybe the lawyer and client simply get on
each others nerves.
Whatever the reason, the client almost
15. If I already have a lawyer, can always has the right to get a new lawyer.
I hire a new one to handle my The only exception is the rare situation
lawsuit? when a client wants to change lawyers
right on the verge of trial or during trial
Yes. A client might already be represented itself. In those cases, a judge would have to
by a lawyer when a dispute mushrooms approve the change, making certain that it
into a lawsuit. But the client does not have would not cause delays that would unfairly
to stick with that lawyer. An attorney who affect the other side.
is good for advice and negotiations might
not be suitable for litigation. Or a client
might feel that the current lawyer is partly 17. If I decide to change lawyers, who
responsible for the dispute winding up in gets the fees?
litigation. Whatever the reasonor for no
reason at alla client has the right to change It depends on the fee arrangement with
lawyers. And one of the most common each lawyer. If a client has been paying the
times to change lawyers is when a claim or first (now former) lawyer by the hour,
dispute formally becomes a lawsuit. switching lawyers shouldnt cause any legal
fee complications. The client is responsible
to the former lawyer for the hours already
16. Can I change lawyers after a worked and for costs advanced, but has no
lawsuit has begun? additional obligation to that first lawyer
once the client hires someone new.
Yes. It often happens that a client wants to Things are a bit more complicated if the
switch lawyers in the middle of a lawsuit. client hired the first lawyer on a contingency
1/16 THE LAWSUIT SURVIVAL GUIDE

fee basis. (See Questions 24-27.) In a 18. What is the procedure for
contingency fee arrangement, the lawyer formally switching from one
gets paid only if the client wins, and the lawyer to another?
fee owed is a percentage of the money
won by the client. A contingency fee is not When a client switches lawyers, the new
paid until the case is over, so the former lawyer should write the previous lawyer a
lawyer will not have received any fees letter, stating that the new lawyer is taking
when the client hires a new lawyer. The over the case. The client also has to
clients new lawyer is also likely to be paid personally inform the first lawyer of the
a contingency fee. So, the question becomes decision to change. The easiest way to do
how much in total does the client wind up this is for the client to write a brief letter to
paying and to whom? the first lawyer stating that, as of the date
The answer is that the client usually pays of the letter, the first lawyers representation
the same total fees despite switching lawyers. of the client is ended. In the letter, the
The total percentage fee goes up only if the client should also ask the first lawyer to
new lawyer charges a higher percentage send all the clients files and related materials
rate than the first lawyer, or calculates the to the new lawyer. The new lawyer is
fee in a different way regarding litigation usually happy to draft this letter for the
costs. (See Question 27, below.) client.
How the two lawyers divide the total fee The first lawyer may ask the client to sign
will depend on how much work each lawyer a papereither in the form of a letter or a
has done once the case is over. Fortunately, document called a Releasewhich formally
the client does not usually have to sort out authorizes the first lawyer to transfer all the
which lawyer gets what. Instead, the lawyers files to the new lawyer. The first lawyer
decide on a reasonable division of fees may charge a small fee for reviewing the
between themselves. To guarantee a share file to remove notes and other work that is
of the fees, the first lawyer may file a court personal to the first lawyer, and for copying
document asking that reasonable attorneys costs.
fees and unpaid costs be paid out of com- If a lawsuit has already begun and the
pensation the client wins in the lawsuit. first lawyer has officially filed papers on the
clients behalf in the case, the new lawyer
has to file, in court, a document called a
Substitution of Attorneys. This document
officially informs the court, the other parties
and their lawyers that the new lawyer is
now the clients representative in the case.
The new lawyer prepares this Substitution
LAWYERS, FEES AND RETAINER AGREEMENTS 1/ 1 7

of Attorneys, which the client, the new client in the middle of a lawsuit. A lawyer
lawyer and the previous lawyer all sign. may legitimately want to quitreferred to
as withdrawing from a casefor any
number of reasons: the client may fail to
Trouble Getting Free of Your pay the lawyers fees or litigation costs, the
First Lawyer? lawyers health may make it impossible to
do a good job on the case, the lawyer may
Lawyers are usually unhappy about losing believe that a conflict of interest has arisen
clients. When you tell your first lawyer or the client and lawyer may strongly
that you are switching, the lawyer may try disagree about how the case should be
to talk you out of it. Once you make it handled. A judge would probably permit a
clear that you intend to make the change, lawyer to withdraw for any of these reasons.
however, most lawyers will sign Substitu- A lawyer might also want to withdraw for
tion of Attorney forms and send the new reasons that make good common sense,
lawyer your files without further ado. It although a judge might not find them
does occasionally happen, however, that legally sufficient. For example, the lawyer
spurned lawyers fail to cooperate. Either may feel that the case has become too
because they are still owed money, be- difficult for the lawyer to handle well, the
cause they are not satisfied that their right client may be refusing to communicate or
to a contingency fee is protected or for cooperate with the lawyer or there may
some other reasonlaziness, resentment, simply be a serious personality clash.
a belief that the new lawyer has improp- If a lawyer wants to withdraw from a case,
erly stolen the clientthey fail to sign it is usually in the clients best interest to let
papers or send files. But there are things the lawyer do so. A client doesnt want a
you and your new lawyer can do to shake lawyer who no longer wants to do the job.
some sense into your former lawyer. Your The lawyer should give the client time to
new lawyer can go to court to seek a find a new lawyer, during which time the
judges order that the first lawyer cooper- lawyer will continue to protect the clients
ate. And help may be available from a interests in the lawsuit. Usually, a lawyer
local or state bar association. who is withdrawing will ask the other side
in the lawsuit to delay proceedings while
the transition is made. If the delay is not
too long, the other sides lawyers usually
19. Can my lawyer drop me as a client? cooperate. When a new lawyer is found,
the client and the old and new lawyers
Yes, in some cases. It sometimes happens simply execute a Substitution of Attorneys,
that a lawyer wants to quit working for a as described in Question 18, above.
1/18 THE LAWSUIT SURVIVAL GUIDE

20. Can my lawyer be forced to Section III: Attorney Fees and


continue representing me in the Litigation Costs
lawsuit?
A lawyer and client must have a clear
In limited circumstances. Unlike a client, agreement, from the start of their working
who can change lawyers at any time, a relationship, about exactly how the lawyers
lawyer does not always have the right to fee will be calculated and when the client
immediately withdraw from a case. For will be expected to pay it. Lawyer and
example, it is not legally justified for a law- client must also reach an agreement about
yer to quit just because the case is proving which litigation costs the client will be
more difficult than originally anticipated. If expected to pay and when those payments
there is no legally sufficient reason for the will be due. This Section discusses the
lawyer to quit, the client might not want to different ways lawyers structure their fee
let the lawyer goat least not during a agreements and the kinds of litigation ex-
crucial stage of the lawsuitbefore finding penses clients may expect to pay. Whatever
another lawyer to take over. the arrangement a lawyer and client reach
If there is no new lawyer in place to file about fees and costs, it should be clearly
a Substitution of Attorneys, the lawyer who spelled out in a written representation
wants to quit must seek a judges permission agreement signed by both lawyer and client
by filing a Motion to Withdraw As Counsel. (see Sections IV and V, below).
The lawyer must notify the client of this
motion and explain how the client can
object. The client may ask the judge to 21. What is the range of fees I may be
refuse the lawyers request until another facing if I pay my lawyer by the hour?
lawyer is ready to take over.
The other side in the lawsuit may also The most common form of lawyer compen-
object to a lawyers request to withdraw. If sation is the hourly rate. Unfortunately, those
important litigation procedures are pend- rates range from $75 to $300 per houror
ing, the other side may not want to delay more. As with most other services, rates tend
them while the client looks for a new law- to be higher in major urban areas. The
yer and that lawyer gets up to speed on the hourly rate charged for work by less-experi-
case. In these circumstances, a judge may enced lawyers in the same office is usually
order the unhappy original lawyer to stay substantially lower than rates charged by
on the case until certain procedures are more senior attorneys. If the lawyers office
completed. uses paralegals and charges separately for
their time, their hourly rate is probably in
the $35$75 per hour range. Most lawyers
LAWYERS, FEES AND RETAINER AGREEMENTS 1/ 1 9

keep painfully close track of, and charge for, 22. What is a retainer?
every minute they spend on a case. Lawyers
usually mark their work time in tenth-of-an- A lawyer who will be paid an hourly fee
hour increments (six-minute chunks). So, if may ask the client to pay a lump sum at
they spend even one minute on a casea the beginning of the case to guarantee
quick phone call, reviewing and signing a payment for the lawyers initial work. Once
letterthey bill for a tenth-of-an-hour. this down payment, known as a retainer,
is received, the lawyer deposits it in a bank
trust account. Fees are withdrawn from the
retainer as the lawyer does work on the
A Lawyers Time Is Your Money
case and bills the client for the time. Litiga-
If your lawyer charges by the hour, the tion costs may also be charged against the
meter is running whenever you have a retainer. (See Questions 30-34, below.)
conversation. Before you pick up the phone Some lawyers also require the client to
or make an appointment, think about maintain the retainer at a minimum level
whether you really need to talk to your throughout the litigation. For example, a
lawyer. A secretary might be able to handle lawyer might ask that the client deposit an
scheduling issues, make sure you get initial $5,000 retainer, and that the client
copies of important documents and take not allow it to fall below $2,000. As soon as
care of other basic requests, for example. the lawyer bills the client for more than
If you have questions for your attorney, $3,000and takes that amount out of the
write them down before you call or visit. trust accountthe client would be required
This way, you can be sure to get all your to deposit enough additional money to
questions answered at once and avoid get- push the account back up to $2,000.
ting charged for a second or third conver-
sation. If you have information you need
to share with your lawyerthoughts about 23. What can I do initially to control
potential witnesses, answers to discovery hourly fees?
requests or comments on a pleading, for
exampleconsider writing them down in Because paying by the hour can become so
a letter. Finally, dont use your lawyer expensive so quickly, a client might want
especially not a lawyer you are paying by to discuss money-saving measures with the
the houras a shoulder to cry on or an lawyer at the very beginning of the case.
emotional sounding board. Lawyers arent Such measures might include:
trained as therapists or counselorsbut Discounted rate. Some lawyers will
will charge you for their time if you ask agree to reduce the hourly rate they
them to act like one. charge if they work more than a
1/20 THE LAWSUIT SURVIVAL GUIDE

certain number of hours on a case in stake in the lawsuitshould be


any one month. For example, a lawyer discussed at the start of the case. If
might charge $150 per hour for the possible, lawyer and client should
first 20 hours the lawyer works on the agree on a maximum fee amount.
case in a month, but then only $100 When legal fees near that figure, the
for every additional hour in that month. lawyer can push to settle the case
Cap on total fee. By the time most dis- even if the settlement is not as good
putes get to the lawsuit stage, both as the client might have hoped.
sides have a pretty good idea of how Prior approval of legal maneuvers. A
much money is at stake. Based on client might be able to control some
how much a party stands to gain or hourly legal fees by making sure the
lose, a client and lawyer might be able lawyer discusses major legal proce-
to gauge how much (in lawyer fees) it dures before beginning work on them.
is worth spending to win, or to pro- A conscientious, client-friendly lawyer
tect against losing. For example, if a will do this anywaybut it doesnt
client is suing to recover $50,000 in hurt for the client to raise the issue at
damages, the client might want the the outset. (The kinds of legal maneu-
lawyer to agree to try to settle the vers that are likely to eat up a lot of
lawsuit once legal fees reach $20,000 lawyer hours are pointed out to the
or so. Otherwise, legal fees might eat reader throughout this book.)
up most of the money that could be Careful billing review. A client paying
won. Of course, the client might also hourly fees must keep abreast of the
win a lower amount, even less than lawyers work. Most lawyers offices
the lawyers bill. This kind of balancing send a client an itemized bill every
legal fees versus the total amount at month. The bill includes, by date, a
brief description of the work a lawyer
or paralegal has done that month on
the case and how long (in tenths of
hours) the work took. The client should
make sure there have been no major,
time-consuming legal maneuvers that
the client has not previously heard
about from the lawyer. Also, if certain
aspects of the case are running up a
lot of attorney fees, the client might
LAWYERS, FEES AND RETAINER AGREEMENTS 1/ 2 1

want to raise the possibility of cutting malpractice case. But it may also be used
down in that area of the litigation for individuals who are suing a business or
for example, taking fewer depositions organization for potentially high compensa-
of minor witnesses. (See Chapter 4.) tionin cases involving employment
Finally, if the total lawyer fees will discrimination, harassment or wrongful
soon become unaffordable or will termination, patent or trademark infringe-
exceed what the client stands to win ment, personal or business fraud or unfair
in the case, client and lawyer must competition.
discuss the possibility of settling the
case quickly, rather than continuing
with expensive litigation. 25. Will I have to pay a retainer in a
contingency fee case?

24. When would a lawyer work for a Perhaps. Some lawyers ask clients to pay a
percentage of my recovery rather retainer even in contingency fee cases.
than for an hourly fee? These retainers act as a guarantee that the
lawyer will receive some payment for
In certain kinds of cases, lawyers charge working on the case. If the client loses or
what is called a contingency fee. Instead of wins only a small award, the lawyer keeps
billing by the hour, the lawyer waits until the retainer as payment for services. If the
the case is over, then takes, as a fee, a client wins, the lawyer applies the retainer
certain percentage of the amount the client against the attorney fees to be collected.
has won. If the client wins nothing, the
lawyer gets no fee. In this way, the lawyer
shares the clients risk of losing or of win- 26. How much do lawyers charge as a
ning less than expected. A contingency fee contingency fee?
also rewards the lawyer for helping to win
a higher amountthe more the lawyer wins The standard contingency fee in personal
for the client, the more the lawyer gets. injury cases is 33% of the amount of com-
This method of payment was developed to pensation the plaintiff obtains in a settle-
permit lawyers to aggressively represent ment. Usually, the fee rises to 40% once the
those people who want to sue for damages case is set for trial or (in courts where the
but dont have the money to pay a lawyer trial date is set early in the lawsuit) 60 to 90
as the case goes along. days before the trial date. Fees rise whether
Most commonly, a contingency fee agree- or not the trial actually takes place. The
ment is made for the plaintiffthe person reason for this increase is that a lawyers
suingin a personal injury or medical work increases tremendously once the case
1/22 THE LAWSUIT SURVIVAL GUIDE

nears trial. Contingency fee rates in other without need for a trialthe more willing a
cases are similar, though they can range lawyer will be to negotiate this type of
from 25%50% depending on the amount arrangement.
of work a lawyer must do, the amount of
litigation costs a lawyer must pay, the
potential for a large fee and the risk of
A Lawyer Might Hedge Bets
getting no fee at all.
Through a Combination Fee
Although one-third is the standard contin-
gency fee, some lawyers will consider Your case might have the potential for
either a lower rate or a mixture of rates, large compensationbut only with lots of
depending on the case. A client might legal work and a significant risk of losing.
successfully negotiate with a lawyer for a Because of the risk, a lawyer might balk at
lower rate, perhaps 20%25% of any settle- taking the case on a pure contingency fee
ment before the case is set for trial, if most basis. At the same time, because of the
or all of the following factors are present: enormous work involved, you might not
it seems virtually certain that the client be able to afford to pay the lawyer on an
will recover damagesthe only ques- hourly basis.
tion is how much the award will be In such a case, a lawyer might be willing
the client is likely to receive a large to combine the two types of fee structures,
award, and hourly and contingency. In such a combi-
the attorney will not have to do a lot nation fee or blended fee agreement, you
of complicated or time-consuming pay the lawyer on an hourly basis, but at a
legal work. reduced rate and only up to a certain limit.
In cases involving a large potential recov- Beyond that limit, the lawyer takes no
ery, a sliding scale fee schedule is also a further direct payment from you but in-
possibility. In these sliding scale arrange- stead takes a percentage of the amount
ments, the lawyers rate goes down as the you win in the lawsuit. This percentage is
compensation goes up. For example, a considerably lower than in a normal
lawyer might agree to a sliding fee scale of contingency fee case because the lawyer
33% for recovery of up to $100,000 and has already been paid an hourly rate. For
25% for all amounts over $100,000. Or a example, if the lawyers regular hourly rate
lawyer might agree to a more graduated is $200 and the normal contingency fee
scale, with 33% up to $100,000, 25% for amount is 33% of the clients compensa-
$100,000 to $250,000 and 15% for all tion, the lawyer might agree instead to
amounts above $250,000. The better the charge $100 per hour up to a maximum of
clients casethe more certain it looks that $10,000, plus 15% or 20% of the final
the client will get significant compensation compensation, if any.
LAWYERS, FEES AND RETAINER AGREEMENTS 1/ 2 3

27. How is a contingency fee contingency fees before costs are subtracted.
calculated? However, in cases where the potential
recovery is high but the costs are likely to
There are two different ways in which a be very extensive, a client might be able to
lawyers contingency fee may be calculated. negotiate this matter with a lawyer. In order
The fee may be calculated as a percentage to sign up a lucrative case, the lawyer
of the total amount of the plaintiffs settle- might agree to calculate the contingency
ment or trial award before litigation costs fee after costs have been paid, or on some
are deducted. (See Questions 31-34.) Or, compromise figure (for example, the total
the fee may be calculated based on the compensation less 50% of costs). A lawyer
amount of compensation after costs have is more likely to agree to such an arrange-
been deducted. ment if the client pays the costs as the case
The method usedbefore or after costs goes along, rather than the lawyer advanc-
are paidcan make a significant difference ing the costs. (See Question 33.)
in the amount a client finally gets to keep
when the case is over. A client keeps more Your State May Regulate Contingency
if costs are subtracted first. Consider, for Fees. Many states have laws restricting
example, a contingency fee case in which the contingency fee percentage a lawyer may
the client wins $100,000, litigation costs are charge in certain types of cases. A few states
$20,000 and the lawyer gets a 33% fee. If that limit contingency fees in all personal injury
fee is collected before costs are subtracted, cases. Other states restrict the amount a lawyer
the lawyer gets 33% of $100,000, which is may charge in medical malpractice cases,
$33,000. From the remaining $67,000, the sometimes in a sliding scale reducing the fee
client must pay the $20,000 in litigation as the recovery amount increases. And a few
costs, leaving the client with $47,000. On states restrict the contingency fee rate a lawyer
the other hand, if the costs are subtracted may charge for representing a minorusually
before the lawyer takes legal fees, the cal- to 25%. If you and a lawyer are discussing a
culation would work as follows. Subtracting contingency fee, ask whether there is a state
the $20,000 in costs from the $100,000 com- law regarding the rate a lawyer may charge in
pensation leaves $80,000. The lawyer would your type of case.
get 33% of that $80,000, which is $26,400.
The client would keep $100,000 minus the
$26,400 legal fee and the $20,000 costs, for 28. Can my lawyer collect fees from
a total of $53,600. The client keeps $6,000 the other side?
more in the second calculation.
Given these figures, it is easy to under- Perhaps. In most cases, each side in a law-
stand why lawyers almost always calculate suit pays its own attorney fees. But in a few
1/24 THE LAWSUIT SURVIVAL GUIDE

kinds of cases, the loser pays the winning 29. Do lawyers ever handle a lawsuit
sides attorney fees for the entire litigation. for a lump sum fee?
If there is a good chance that the client will
prevail in such a case, a lawyer might agree Although lawyers sometimes charge a flat
to take the case on what is called an attorney feea one-time only charge, paid in
fee award basis. In this arrangement, the advance, to cover all the lawyers work
lawyer charges an hourly rate but does not they rarely do so when litigation is involved.
collect it from the client. Instead, the lawyer The few kinds of litigation for which a
waits for the court to order that the fees be lawyer might charge a flat fee are criminal
paid by the other side, once the case is cases, some family law matters (divorce,
successfully concluded. If the client does spousal support, child custody), conserva-
not win the case, the client pays no lawyer torship, guardianship and incompetency
fees. Sometimes a lawyer will modify this proceedings, and bankruptcies. In these
all-or-nothing approach by collecting a small cases, a lawyer knows at the outset which
hourly fee from the client along the way, legal procedures will be necessary and ap-
and perhaps also by having the client pay proximately how much time and money
ongoing litigation costs. (See Question 33.) they will require. In most other kinds of liti-
There are generally three types of cases gation, however, a lawyer simply would
in which the other side may be required to not know how much of a flat fee to setit
pay legal fees: is impossible to accurately estimate at the
breach of contract lawsuits, if the con- beginning of a lawsuit how much work will
tract specifically requires the loser in be required.
any legal dispute to pay the winning
sides attorney fees
cases involving violations of state or 30. What are litigation costs and why
federal law in which the law itself should I worry about them?
requires the loser to pay the other
sides legal fees (usually a lawsuit Many clients are terribly surprised to learn,
against a government entity, or against at the conclusion of their lawsuit, how
a business or organization for violation much their lawyer has spent conducting the
of privacy, safety or anti-discrimination litigation. It is a surprise because some
laws), and lawyers fail to keep clients abreast of the
certain types of cases in which state costs being accumulatedand because too
law requires the loser to pay the many clients fail to pay attention to what
winners attorney fees (often family their lawyers are spending. The surprise is
law matters, challenges to a will or a terrible one because these costs can run
trust and certain real estate disputes). into the thousands of dollarsand because
LAWYERS, FEES AND RETAINER AGREEMENTS 1/ 2 5

the client may have to pay them all. To court fees, charged to file legal papers
avoid surprises, at the very beginning of and to pay the expenses of jurors
the lawsuit the lawyer should spell out in deposition costs, including the
the written representation agreement which stenographers hourly fee, the cost of
litigation expenses will be charged to the preparing and copying transcripts and
client and which ones, if any, will be borne any appearance fees or travel costs
by the lawyers office. The agreement should owed to witnesses
also specify how and when the client is to fees charged by businesses, doctors,
pay these costs. accountants and government agen-
cies, among others, for preparing
reports or making copies of records
31. What is usually considered a and files
litigation cost rather than the lawyers travel costs (such as
merely a lawyers normal those incurred taking depositions of
business expense? distant witnesses)
extra communications costs, such as
While the client is usually responsible for long-distance phone calls, messenger
paying litigation costs incurred during the and delivery services
course of the lawsuit, the client should not copying costs, and
have to pay for the normal operating special effects, which might include
expenses of the lawyers office. At the graphs and charts, photo enlarge-
beginning of the case, a lawyer and client ments and other visual and aural
must get straight, and put in the written exhibits prepared for use in court.
representation agreement, the costs for One way a client can keep costs in check
which the client will be responsible. Typi- is to ask the lawyer to inform the client, in
cally, a client pays for any cost that is advance, of all depositions and any investi-
generated by someone or something beyond gator or expert witness to be used. That
the lawyers office and staff. Of these costs way, client and lawyer can discuss the
normally paid by the client, the most estimated cost versus the expected legal
common are: benefit before the money is spent. Also, the
private investigators and process client should regularly check monthly bills
servers from the lawyer to see whether there are
expert consultants and witnesses, large costs the client does not understand
whether or not they actually testify at or did not authorize.
trial
1/26 THE LAWSUIT SURVIVAL GUIDE

The Modern Cost of fax charges, and


Online Legal Research charges to use a lawyers conference
room or other internal office space.
In recent years, lawyers have begun to use
online research services. Although these
online research serviceslike Lexis or 33. When will I have to pay
Westlawcan be real time-savers, they litigation costs?
also have expensive subscription and usage
rates. Because an online service cuts Usually, a lawyers office calculates litigation
research time for the lawyer, it can save the costs monthly and includes them in the
client money in an hourly fee arrangement. clients regular bill. At the beginning of a
If the lawyer will be paid a contingency case, a lawyer might ask that a client put
fee, however, the client should not be down a depositeither as a separate costs
charged extra for the lawyers online retainer or as part of a broader fee retainer
research. After all, the client wouldnt have to guarantee payment of costs. In other
to pay for time the lawyer spent reading cases, a lawyer will agree to an advance of
law books in the library, so why should the costs. That means that the lawyer pays the
client have to pay for research done on the costs and waits to be reimbursed by the
computer? Unfortunately, some law offices client at the end of the case. These
routinely pass the significant costs of online arrangements can be made in the following
research on to their clients. Make sure this ways:
issue is covered in your fee agreement. Hourly cases. When a lawyer charges
by the hour, the client usually has to
pay the costs of litigation as they are
incurred. At the beginning of the case,
32. Are there expenses I should not the lawyer may require the client to
have to pay? put down a costs retainera deposit
the lawyer puts into a special bank
Yes. Some lawyers have the nasty habit of trust accountagainst which the
padding their bills by charging clients for lawyer draws funds to pay litigation
the law offices normal business expenses, costs. The lawyers regular bill to the
considered overhead by most businesses. client includes an itemization of these
Common office expenditures for which a costs. If the client has not given a
client should not have to pay include: retainer for costs, the client is expected
clerical charges, such as secretarial to pay these costs monthly, along
time, word processing or anything with billed attorney fees.
characterized as administrative costs
LAWYERS, FEES AND RETAINER AGREEMENTS 1/ 2 7

Contingency fee and attorney fee award costs. A lawyer might make this kind of
cases. There are two ways in which agreement if the lawyer believes there is a
costs can be paid in contingency and good chance of winning a large recovery
attorney fee award cases. The client this chance makes it worth the risk of having
might pay costs as the case goes along, to pay costs if the case doesnt pan out.
either directly (as part of a monthly
bill) or out of a costs retainer deposit.
Or the lawyer might pay costs along Section IV: The Representation
the way and be reimbursed out of the
Agreement
clients compensation at the end of
the case. Lawyers are willing to do When a lawyer and client agree on the
this in some cases because they can terms under which the lawyer will repre-
often afford to front these costsand sent the client on a particular case, those
wait months or years for repayment terms are put in writing and signed by the
more easily than their clients. client and lawyer. This documentcalled a
fee agreement, retainer agreement or repre-
sentation agreementcan be a simple letter
34. In a contingency fee or attorney outlining basic terms or a more formal-
fee award case, do I have to pay looking contract.
litigation costs even if I lose The form of the agreement doesnt matter.
the lawsuit? What matters is that the agreement is clear
about certain key issues. This Section dis-
Perhaps. If the client wins nothing (or wins cusses the matters that must be included in
less than the total costs) and the client has an agreement. Section V of this Chapter
been paying costs all along, that money is contains sample representation agreements
gone for good. But if the lawyer has been for reference.
advancing costs, who ultimately pays will
depend entirely on the terms of the repre-
sentation agreement. If the agreement says 35. What important financial issues
that the client is to pay costs, then the must be included in a
client owes the lawyer the total amount of representation agreement?
reasonable costs the lawyers office spent
on the case, despite the poor outcome. First and foremost, a representation agree-
In some cases, however, the lawyer ment must explain the lawyers fee and
agrees to pay some or all of the litigation how it will be paid. That is, it must state
costs without reimbursement if the client how much the lawyer will charge, what fee
doesnt win enough money to cover those structure will be used (hourly fee, contin-
1/28 THE LAWSUIT SURVIVAL GUIDE

gency fee or some combination) and when specific case the lawyer will handle
the lawyer will collect it (monthly from the that is, the nature of, and parties to,
client, at the end of the case from the client this particular dispute should be
or from the opposing side). If the fee will specified. If a lawsuit has already been
rise when the case nears trial, the triggering filed, the agreement should identify
date for that increase should be clearly the case by title and court number.
stated in the agreement. The agreement lawyers who will do the workThe
should also describe anticipated litigation agreement should specify who will be
costs, whether the client or the lawyer is to the lead counsel on the case and
advance them and who must ultimately pay what legal procedures that lead
them. And the agreement should cover any counsel will handle personally. (See
agreed-upon retainer deposithow much Question 11.) If other attorneys in the
the deposit will be, whether it covers fees firm who may handle some part of
alone, costs alone or both, and whether the the case charge different hourly rates,
client has to maintain it at a minimum level those rates should be specified.
throughout the case. no guaranteesMost representation
agreements state that the lawyer does
not guarantee any particular outcome
36. What other provisions are typical in in the lawsuit. This prevents a client
a retainer agreement? from complainingonce the case is
overthat the lawyer had promised
Because every law office creates its own rep- to win a particular amount for the
resentation agreements, these contracts vary client, or to protect the client from a
substantially in language, formality and specific level of defeat.
length. However, some standard terms appear ending the representationMany law-
in most of these agreements, including: yers include some standard language
extent of the representationThe explaining when either the lawyer or
agreement should make clear that the the client may end their working rela-
lawyer will represent the client in all tionship. Some agreements state that,
litigation proceedings, including trial. by signing the agreement, the client
Some agreements exclude certain post- agrees that the lawyer can end the
trial proceedings, including appeals or representation at any time. Others
collection of an award if the client allow the lawyer to drop the client
wins a judgment. (See Chapter 10.) only under specified circumstances.
Sometimes a client has several legal working togetherSome representation
tussles going on simultaneously, so agreements specify how lawyer and
the agreement should define the client will work together. For example,
LAWYERS, FEES AND RETAINER AGREEMENTS 1/ 2 9

an agreement might require the client Make Sure the Agreement


to be honest with the attorney. Or the Is Accurate
agreement might spell out which
decisions the lawyer can make alone The written representation agreement is an
and which require the clients approval. important contract that defines your busi-
ness relationship with your lawyer. In case
of any later disputes between you over
37. Must I agree to use the lawyers fees, costs or the quality of the lawyers
standard representation agreement? representation, this contract will be the
most important evidence of your agree-
Although lawyers develop representation ment. While there is no point in arguing
agreements over time to cover most poten- with your lawyer over every comma, you
tially important issues, the standard agree- must make sure that the contract reflects
ment doesnt always address everything. your understanding of the agreement you
For example, there might be an unusual fee have reached with the lawyer. For example,
or cost arrangement not described in any of if you have agreed on a particular fee or
the lawyers standard agreements. If so, a cost arrangement or have agreed that the
lawyer can modify the standard agreement lawyer will discuss major expenditures
to address the different situation. Adding an with you ahead of time, make sure that the
addendum to the agreement, on a separate, agreement accurately reflects those discus-
attached sheet of paper, is a common way sions. If the written agreement is substan-
to do this. (See Sample Representation tially different than your understanding,
Agreement #2, in Section V.) However, a ask the lawyer to change it. If the lawyer
client should not balk at using a lawyers refuses to conform the agreement to your
standard agreement simply because the understanding, or offer you a very good
lawyer drafted it. The lawyers office has reason why not, this does not bode well
considered many potential problems be- for your professional relationship.
tween lawyer and client in creating this
document, so the agreement will cover
many issues the client might not have con-
sidered. A well-drafted agreement protects 38. Can my lawyer and I change our
both lawyer and client and sets the stage representation agreement once the
for a positive working relationship. This case is under way?
doesnt mean a client should simply sign
whatever the lawyer puts on the table, A representation agreement is just a
however. The client should make sure the contractits terms may be changed at any
agreement is fair and accurate before signing. time, as long as both parties agree in
1/30 THE LAWSUIT SURVIVAL GUIDE

writing. However, a client should never whether the client would be better off with
rely on a lawyers oral promise that their a new lawyer entirely. (See Section II.)
agreement has been changed. Any new
terms must be clearly spelled out, in writing.
The new contract should refer to the parts Section V: Sample Representation
of the original written agreement that are
Agreements
being changed and be dated and signed by
both lawyer and client. On the following pages are three sample
Either lawyer or client may want to make representation agreements. Two are for
a change. A client may find that the lawsuit hourly rate fee arrangements. One is for a
eats up money more quickly than expected contingency fee. Each is somewhat differ-
or involves much greater sums in potential ent in form and languageone is a letter,
damages, and so may want to renegotiate one calls itself an Agreement and one is
the lawyers fee or arrangements about labeled Contractbut each serves the
litigation costs. However, a lawyer is under same purpose.
no obligation to accept such renegotiation. None of these samples is meant to be
If the lawyer refuses, the clients only exactly the right form of agreement for any
option may be to fire the lawyer and hire particular lawyer, client or lawsuit, and
someone else for the remainder of the case. none of them is a perfect or standard
As the lawsuit moves along, the lawyer document. Lawyers develop their own
may find the case more complicated than it agreements over time. These agreements
had seemed based on the clients original may include certain terms required by state
information. The lawyer might therefore ethical rules for the legal profession as well
want to renegotiate fees or cost advances. as language the lawyer has devised to ad-
The lawyer may want to share some of the dress practical matters that commonly arise.
load with other lawyers in the office or A client need not ask a lawyer to use any
even with a lawyer from a different office. specific language from any of these samples.
However, the lawyer cant just change the However, if any terms in the lawyers rep-
agreement unilaterally; the client must resentation agreement are incomplete or
agree to the new arrangement. A good unclear, or do not address issues discussed
lawyer will thoroughly explain the need for in these sample agreements, the client
any changes in the agreement, making sure should ask the lawyer to explain. If the
the client understands the lawyers position explanation seems to include something
even if the client is not happy about it. If that is not in the lawyers agreement itself,
the client does not want to agree to the the client should ask the lawyer to add it to
new terms, client and lawyer should discuss the written document.
LAWYERS, FEES AND RETAINER AGREEMENTS 1/ 3 1

Sample Representation Agreement #1

Law Offices of
TINKER, EVERS & CHANCE
1234 Broadway, Suite 100
Oakmont, California 00000

September 12, 20XX

Sheila Q. Public
111 High Street
Oakmont, CA 00000

Re: Public v. Johnson Contracting Company

Dear Ms. Public:

We are pleased that you have decided to have us represent you in your legal
dispute with the Johnson Contracting Company regarding the construction of your
home. This letter is intended to confirm the terms and conditions of our agreement
concerning your representation.
We agree that we will assume your representation in this matter to and includ-
ing any trial of the lawsuit filed in the case, and that we will exert our best efforts
to provide you with legal counsel and advice, consistent with the canons of ethics
of the legal profession. Obviously, however, we cannot guarantee that those efforts
will result in a total or unqualified level of success in this matter.
We agree that Mary C. Tinker, Attorney at Law, will assume responsibility
within the office for your representation, including serving as lead trial counsel
should the matter go to trial. Ms. Tinker retains the authority to designate other
attorneys and paralegals in the office to perform tasks on your case, in her sole
discretion.
For these services, you agree to pay us at our current hourly rates: for the calendar
year 20XX they are $200 per hour for Mary C. Tinker, Robert Evers and Dean
Chance; $150 per hour for all associate attorneys and $75 per hour for paralegals.
At the beginning of each calendar year this representation agreement may be up-
dated to reflect any changes in the current hourly rates of the members of our office.
1/32 THE LAWSUIT SURVIVAL GUIDE

Sample Representation Agreement #1 (continued)

In addition to fees as described above, we will charge you for our actual out-of-
pocket costs for the following expenses related to your representation: depositions;
service of legal documents; attorney travel; filing and other court fees; photocopies;
and non-local telephone charges. In addition, it may be necessary to retain the
services of an investigator or expert to consult and perform related services, and to
testify on your behalf. If we deem it advisable to have you retain an investigator or
expert, we will recommend one to you and will obtain your consent prior to
engaging his or her services on your behalf.
You have agreed to give us a retainer in the amount of $5,000, against which
we will bill on a monthly basis for services rendered and expenses incurred. If and
when such retainer is exhausted, you agree to pay any additional fees and costs
within 30 days of receipt of billing from us. Interest at 10% per annum will be
added to all unpaid balances of fees and costs 60 days after providing you with a
bill for them. If we do not exhaust the entire retainer amount by the conclusion of
our representation, we will return the remainder to you within 30 days.
We reserve the right at all times to withdraw from your representation in the
event that a conflict arises, or we have a substantial disagreement. Should that
occur, we will provide you with notice so that you may have the opportunity to
employ other counsel.
Please read this letter carefully. If you are in agreement with its terms, retain
this original for your files, sign the enclosed copy and return it to this office. If you
have any comments or questions concerning the terms and conditions in this
letter, please contact me at your convenience.

Very truly yours,

Mary C. Tinker
for TINKER, EVERS & CHANCE

Read, Approved and Agreed:

Date:
Sheila Q. Public
LAWYERS, FEES AND RETAINER AGREEMENTS 1/ 3 3

Sample Representation Agreement #2

Hourly Rate Fee Agreement

This Agreement is made this day of , 20XX,


between Sheila Q. Public (Client) and Tinker, Evers & Chance (Attorney).
1. Hourly Rates. Client hereby retains Attorney for the purposes of legal repre-
sentation and agrees to pay for all services rendered at Attorneys current
schedule of fees, dated January 1, 20XX, and attached as Exhibit A to this
Agreement. Attorney shall be entitled to revise the schedule of fees upon
thirty (30) days written notice to Client. Attorney charges for services in
increments of 1/10th of an hour.
2. Costs. Client agrees to pay for all reasonable costs advanced by Attorney for
clients account. These include, but are not limited to, the costs of: depositions,
service of legal documents; attorney travel; filing and other court fees; photo-
copies; non-local telephone charges; investigators; consultants; and expert
witnesses. Before engaging an investigator, consultant or expert on behalf of
Client, Attorney will inform Client and will obtain Clients permission.
3. Services. Attorney will charge for all activities undertaken to provide legal
services to Client under this Agreement, including but not limited to prepara-
tion for and participation in: conferences; court appearances; depositions;
legal research, negotiations, personal and telephone conversations, and
preparation and review of correspondence, trial preparation materials and
legal documents. Client understands that Client is retaining the law firm of
Tinker, Evers & Chance and not one particular attorney, and that attorney
services to be provided Client will not be performed by any particular
attorney. However, it is intended that services will be performed principally
by Mary C. Tinker, and that other attorneys or paralegals performing services
will have been designated by Mary C. Tinker. The legal services to be per-
formed by attorney for Client are as follows: representation in a legal dispute
between Client and Johnson Contracting Company regarding construction of
Clients home, including prosecuting on behalf of Client the lawsuit known as
Public v. Johnson Contracting Co, in the Superior Court of Oakmont County,
California, Case No. XXXXXX.

-1-
1/34 THE LAWSUIT SURVIVAL GUIDE

Sample Representation Agreement #2 (continued)

4. Duties of Attorney. Attorney agrees to perform legal services in an ethical and


professional manner and regularly to provide Client with sufficient information
concerning the progress of the case to allow Client to make informed decisions
concerning the case. Client understands, however, that litigation is an uncertain
process and that Attorney cannot, and does not, either guarantee or predict
any particular outcome in the case, and that all charges will apply regardless
of the ultimate result in the case.
5. Duties of Client. Client agrees to cooperate with Attorney in obtaining and
preparing information and materials, responding to discovery requests and
such other activities as are reasonably necessary to assist Attorney in repre-
senting Client. Client shall be truthful with Attorney, keep Attorney informed
of developments which might affect the case, advise Attorney of Clients
current address, telephone and whereabouts and timely make any payment
required by this Agreement.
6. Billing. Client will be billed monthly for professional fees and for actual costs
incurred. Bills are due and payable upon receipt. An account unpaid for more
than thirty (30) days from the date of the invoice is considered overdue and
interest at the rate of ten percent per annum will be charged on such overdue
amounts.
7. Deposit. Client will pay to Attorney a deposit of $5,000 which will be credited
towards Clients outstanding professional fees and costs. Client shall at all
times maintain this deposit in the minimum amount of $1,000. Any portion of
this deposit not so applied will be returned to Client at the conclusion of
Attorneys representation of Client.
8. Lien on Recovery. In the event of any recovery or judgment obtained on
behalf of Client at a time when any fees or costs owed by Client to Attorney
remain unpaid, Attorney shall have a lien on such recovery or judgment in
the amount of all such fees or costs.
9. Attorneys Fees/Collection Costs. In the event of a dispute between Client and
Attorney arising out of this Agreement which results in litigation or other
dispute-resolution procedure including mediation or arbitration, the prevail-
ing party shall be entitled to an award of attorneys fees and costs incurred in
connection therewith.

-2-
LAWYERS, FEES AND RETAINER AGREEMENTS 1/ 3 5

Sample Representation Agreement #2 (continued)

10. Termination. Client has a unilateral right to discharge Attorney and terminate
this Agreement without cause by giving Attorney written notice. This Agree-
ment also constitutes Clients consent for Attorney to withdraw as Clients
counsel in any pending litigation, administrative proceedings or other matter,
and to substitute Client in said proceeding as Clients own attorney for any
reason authorized by the Rules of Professional Conduct of the State Bar of
California, including, but not limited to, failure to fully honor the fee provi-
sions of this Agreement and refusal to follow Attorneys professional advice
on a material matter. Should Attorney wish to withdraw, Attorney shall give
reasonable notice to Client. Client agrees that, promptly after such notice and
upon Attorneys request, Client will execute such documents as may reason-
ably be necessary to effectuate the termination of Attorneys representation,
including Substitution of Attorneys to be filed with the court.
Client has read, understands and agrees to the terms of the representation
Agreement set forth above. Client acknowledges receipt of a copy of this
Agreement.

Date:
Client

Date:
Attorney

-3-
1/36 THE LAWSUIT SURVIVAL GUIDE

Attachment to Sample Representation Agreement #2

Exhibit A to Fee Agreement

Hourly fee rates for TINKER, EVERS & CHANCE effective January 1, 20XX.

Rate for: Mary C. Tinker, Robert Evers and Dean Chance$200/hr.

Rate for: associate attorneys$150/hr.

Rate for: certified paralegal assistants$75/hr.


LAWYERS, FEES AND RETAINER AGREEMENTS 1/ 3 7

Sample Representation Agreement #3

Contract for Professional Services

IT IS HEREBY AGREED between the undersigned Sheila Q. Public , hereinafter


Client, and the law offices of TINKER, EVERS & CHANCE, hereinafter Attorneys,
that said Attorneys shall represent Client in prosecuting a claim for damages,
including litigation of the matter to and through trial, arising out of an accident
and/or incident which occurred on or about February 10, 20XX .
IT IS HEREBY FURTHER AGREED that the compensation to be paid to Attorneys
for said representation regarding the prosecution of said claim shall be one-third
(1/3) of the sum paid in settlement of the case or otherwise recovered before a date
for trial or arbitration thereof has been set. Said compensation amount is to be cal-
culated before deducting, from the total sum paid in settlement or recovered, all
costs theretofore advanced or incurred by the law firm in the prosecution of the
claim.
IT IS HEREBY FURTHER AGREED that the compensation to be paid to Attorneys
for said representation regarding the prosecution of said claim shall be forty percent
(40%) of the sum paid in settlement of the case or otherwise recovered after a date
for trial or arbitration thereof has been set. Said compensation amount is to be
calculated before deducting, from the total sum paid in settlement or recovered, all
costs theretofore advanced or incurred by the law firm in the prosecution of the
claim.
IT IS HEREBY FURTHER AGREED that Attorneys shall advance all of the costs
of processing the claim and related litigation, including: court costs, filing fees,
service of process fees, jury fees, deposition costs, investigative fees, reporter fees,
expert consultation, appearance and testimony costs, witness fees, travel costs,
photocopying costs and the cost of non-local telephone calls.
IT IS HEREBY FURTHER AGREED that if there is a recovery in the matter, either
before or after a date set for trial or arbitration, Attorneys are to receive, in addition
to attorney fee compensation, reimbursement for the full amount of any such costs
advanced or incurred. Client agrees to repay Attorneys for such costs advanced or
paid out of the sum paid in settlement or otherwise recovered in the case.

-1-
1/38 THE LAWSUIT SURVIVAL GUIDE

Sample Representation Agreement #3 (continued)

IT IS HEREBY FURTHER AGREED that if there is no settlement of the claim or


other recovery, Attorneys shall receive nothing from Client for legal services and
shall not be reimbursed by Client for any costs advanced by Attorneys. Client shall,
however, be obligated to pay any other partys costs if awarded by the court.
IT IS HEREBY FURTHER AGREED that Attorneys are entitled to, and this
Agreement shall constitute, a lien on any settlement amount, judgment or other
recovery by Client arising out of this case, for Attorneys fee compensation and for
costs advanced by Attorneys on behalf of Client in the prosecution of this case.
This Agreement covers only the handling of Clients claim and resultant litigation,
if any, arising out of the accident and/or incident described herein. Any other
matters handled by Attorneys on behalf of Client are not included in or covered by
this Agreement, and Client shall pay Attorneys separate, additional compensation,
as negotiated and agreed between Attorneys and Client, for any such additional
services.

Date:
Client

Date:
Attorney

I acknowledge that I have received a duplicate copy of this Agreement signed


by both Attorney and Client.

Date:
Client

-2-


Chapter 2

Working With Your Lawyer

1. How much information should I give my lawyer? ................................ 2/2


2. Should I tell my lawyer things that might hurt my case? ....................... 2/2
3. How can I best help my lawyer do a good job? .................................... 2/3
4. Should I expect my lawyer to explain what is going on in
the lawsuit? .......................................................................................... 2/4
5. How much can I rely on my lawyers advice? ....................................... 2/5
6. While the lawsuit is going on, may I keep trying to settle the
dispute on my own? ............................................................................. 2/6
2/2 THE LAWSUIT SURVIVAL GUIDE

T
he relationship between lawyer and disclosure throughout the litigation process.
client often comes under considerable A client should bring to the lawyers atten-
pressure during the long course of tion any information the client discovers,
litigation. And how well the lawyer and remembers or otherwise learns of during
client manage their relationship can signifi- the course of the lawsuit.
cantly affect the clients lawsuit experience.
A good working relationship can both
increase the odds of a positive result and 2. Should I tell my lawyer things that
reduce the clients miseries along the way. might hurt my case?
This Chapter describes how to work
successfully with a lawyer. It discusses Yes. A lawyer is under the strictest legal
attitudes and approaches a client can take instructions never to reveal anything a
to enhance the lawyer-client relationship. client tells the lawyer. The protection
And it explains what a client can expect provided by this attorney-client privilege
and a few things not to expectfrom a extends to information provided by the
lawyer. client to any member of the lawyers staff,
or to anyone hired by the lawyer to work
on the case. (See Chapter 4, Section VI.)
1. How much information should I Given the very broad protection of the
give my lawyer? attorney-client privilege, a client should tell

Everything. Bringing informationdocu-


ments, names of witnesses, conversations
and explanationsto the lawyers attention
is always a good thing. It is the lawyers job
to sift through the information and deter-
mine what is useful and what is not. A fact
the client thought was insignificant might
turn out to provide the basis for a solid
defense or a creative legal argument. And
the sooner the lawyer knows about a piece
of information, the better prepared the
lawyer can be to use it or respond to it.
As soon as a client hires a lawyer, the
client should show or tell the lawyer every-
thing that might pertain to the dispute. And
the client must continue this policy of full
WORKING WITH YOUR LAWYER 2/ 3

the lawyer all negative and potentially 3. How can I best help my lawyer do
damaging information as well as those facts a good job?
that might help. If a client tells the lawyer
about potential problems, the lawyer can In sidebars throughout this book, a client
develop legal tactics to counter or explain can find specific guidance about how to
themthat is part of a lawyers job. It is the help a lawyer with the legal procedure un-
things a client does not tell the lawyer that der discussion. But there are some general
often cause the most troubleif the lawyer things a client should always do during the
is caught by surprise by a damaging piece course of a lawsuit to make life easier for
of information, it might be too late to the lawyer. When a lawsuit goes more
control the harm it causes. smoothly for the lawyer, it saves time and
money for the client and can lead to a better
outcome in the case.
Dont Ask Your Lawyer to Among the things a client should do are:
Lie or Hide Things Search thoroughly for documents and
other information relating to the dis-
It is inevitable that some of the information
pute. A client often has much easier
you turn over to your lawyer will be more
access to lawsuit information than the
harmful than helpful to your case. It is a
lawyer has, and may have information
basic part of your lawyers job to minimize
the lawyer would not even know to
the legal consequences of this negative
request.
information. You and your lawyer can
Carefully prepare summaries, descrip-
brainstorm together about how best to
tions, time-lines and other materials a
keep this information from coming to light,
lawyer has requested to help under-
if possible.
stand the dispute. At the beginning of
However, do not expect your lawyer to
the lawsuit, everything the lawyer
help you hide or lie about information
knows about the case will come from
documents, the identity of witnesses or
the client: making sure this information
harmful factsthat the other side has
is accurate will save time and money.
properly requested. Such conduct by your
Answer thoroughly any written ques-
lawyer would violate professional rules
tions or discovery requests from the
and perhaps even break the law. Your
other side, if the lawyer asks for the
lawyer has a professional and personal life
clients help in responding.
beyond your case and will not be willing
Promptly respond to the lawyers
to risk the serious penalties that such
requests. During litigation, a lawyer
conduct might bring.
often works under tight deadlines.
The more time a client gives a lawyer
2/4 THE LAWSUIT SURVIVAL GUIDE

to digest material the client provides, this without any prompting from the client
the better job the lawyer can do of some lawyers regularly call their clients
using that material in preparing legal just to keep the clients up-to-date. But if a
papers. If a client is simply unable to lawyer does not maintain such contact, it is
respond quickly, the client should tell up to the client to stay in touch with the
the lawyer as soon as possible so the lawyer and the lawsuit.
lawyer can seek an extension or rear- The trick for the client is to do it but not
range other matters to accommodate overdo it. A client can establish his or her
the delay. own regular schedulebi-weekly or
Keep the lawyer posted on the clients monthly, for examplefor calling the
schedule and availability. There are lawyer to ask for an up-date on the case.
certain events in a lawsuit in which During these calls, the client can also raise
the client must participate. Most can any specific questions about particular
be postponed or moved up to fit the procedures or maneuvers. After a few of
clients schedule if the lawyer is given these calls, the lawyer will probably get the
enough advance warning. idea that the client wants to hear about the
lawsuit on a regular basis and may start
initiating the conversation.
4. Should I expect my lawyer to It is not a good idea, however, for a client
explain what is going on in to call every few days with a long list of
the lawsuit? questions, or to demand a blow-by-blow
description of everything the lawyers have
Yes, to some extent. During litigation, been doing. If the client is paying by the
lawyers tend to get lost in their legal battles hour, this can become a very expensive
with the opposing lawyers. Keeping their habit. But regardless of how the lawyer is
clients fully and regularly informed about being paid, such close monitoring can
whats going on is not always a high priority. seriously strain attorney-client relations. The
Clients, on the other hand, often feel left lawyer is likely to be irritated at having to
out of the loop entirely. The lawsuit charges answer detailed questions about things to
(or stumbles) toward a conclusion, fees and which only the lawyer need pay attention.
costs soar, but the client sits in the dark. And worse, the lawyer may feel mistrusted,
Each chapter of this book highlights ways which does not bring out the best work
in which a client can participate in major from anyone. Unless the client has good
decisions about litigation procedures. But reason to be concerned about what the
there should also be a regular flow of lawyer is doing, the best approach is gener-
information from lawyer to client about the ally to stay in touch but let the lawyer do
progress of the lawsuit. A lawyer may do the work he or she is paid to do.
WORKING WITH YOUR LAWYER 2/ 5

You and Your Lawyer Will Have Your 5. How much can I rely on my
Ups and Downs lawyers advice?
Once a lawsuit begins, you and your lawyer
There is an old expression in the legal
are likely to spend a lot of time together.
profession that a lawyers advice is his or
Your relationship on just this one case may
her stock-in-trade. And while it is never a
last for several years or more. Sometimes,
good idea to follow advice blindly, legal
it will seem that you and the lawyer have
advice is precisely what a client needs from
just won a great lawsuit battle. But there
a lawyer. Once the decision has been made
may also be times when it seems you are
to hire a particular lawyerbecause of the
losing the entire war. And your tolerance
lawyers experience, reputation and interest
of each other will vary with these chang-
in the casea client should trust that the
ing fortunes of the lawsuit.
lawyers actions and recommendations will
Your ups and downs will also vary be-
be sound, absent some reason to suspect
cause of things that have little to do with
otherwise.
how the lawsuit will endlegal delays that
A client informed about the legal process
keep the lawsuit from moving or the un-
can be a better consumer of a lawyers
pleasant personality of an opposing lawyer
advice. This book explains legal procedures
or judge, for example. And some things that
and maneuvers and suggests ideas for the
lead you and your lawyer to bump heads
client to consider when discussing them
will have nothing at all to do with your
with the lawyer. If the client understands
case. The stresses of other business or per-
the proceedings and asks the lawyer good
sonal life may sometimes leave one of you
questions, the lawyer can provide more
with little time or patience for the other.
comprehensive, and therefore better,
It is almost inevitable that you and your
advice. There are certain things only the
lawyer will go through these difficult
client can decide: Does this settlement
periods. But as long as they are not too
meet my needs? Am I willing to go to trial?
frequent or long-lasting, they should not
Is continuing to litigate too stressful and
cause you to look for another lawyer.
costly for me? But the lawyer will always
Similar problems would await you with
have a wide edge in litigation experience
someone else. And a change of lawyers
and understanding various legal courses of
can cause great delay and unnecessary
action. And so a client should give great
expense. So, as long as you have not lost
consideration to a lawyers advice. In the
confidence in your lawyers ability or
end, that advice is a big part of what the
commitment to your case, hang in there.
client is paying for.
A lawsuit is a long, rough ride, and each
of you will have to take some lumps.
2/6 THE LAWSUIT SURVIVAL GUIDE

Dont Blame Your Lawyer for the 6. While the lawsuit is going on, may
Whole Legal System I keep trying to settle the dispute
on my own?
As your lawsuit wends its way along, you
may very well become frustrated, angry,
Often a lawsuit arises between people who
even disgusted with the legal process.
have known each other for some time.
Litigation seems to take forever. Some
Because of these personal relationships, a
rules make no sense. You have little say in
client may be tempted to try talking to
what happens. And every painfully
people on the other side of the lawsuit
detailed maneuver costs money.
while the lawyer is doing legal battle.
Because most of your direct contact
Although such private conversations may
concerning the lawsuit is with your own
seem to make sense, they are not usually a
lawyer, there is a tendency to blame your
good ideaand sometimes violate lawsuit
lawyer for every misery the lawsuit rains
rules.
down on you. Your lawyer is certainly a
Once a lawsuit has begun and a party to
voluntary member of the legal profession
the dispute is represented by an attorney,
and judicial system. But it is unlikely your
all communications with that party should
lawyer had anything to do with making the
take place through the lawyers. Ethical
rules that drive you crazyand certainly
rules prohibit lawyers from talking directly
your lawyer had no significant role in
to the opposing party in a lawsuit. The
establishing the adversary legal system this
lawyers are expected to speak only to their
country uses to settle disputes. Unless your
own clients, to independent witnesses and
lawyer seems to be taking advantage of the
to each other. The reason for this rule is
legal process to increase fees or to avoid
simple: it prevents lawyers from trying to
doing work on your behalf, try to remember
pry confidential information out of a party
not to hold the lawyer personally respon-
represented by a lawyer, including informa-
sible for the whole lousy thing.
tion protected by the attorney-client privilege.
If a client receives any contacta phone
call, letter or effort to talk in personfrom
a party or lawyer on the opposing side (or
anyone speaking on their behalf, such as
an investigator or paralegal), the client
should immediately report the matter to his
or her own lawyer.
Although no rule prohibits it, a client
should not attempt to directly contact any
opposing party to the lawsuit or any
WORKING WITH YOUR LAWYER 2/ 7

witness to the lawsuit. The client must There Are Ways to Talk If It
assume that any conversation with the Seems a Good Idea
opposing party or a witness for the other
During the course of your lawsuit, you
side will immediately get back to the
might hear things from friends, acquain-
opposing lawyer, and be used in whatever
tances or business associates that suggest
way possible against the client. If the client
your opponent would like to talk to you
unwittingly reveals information or legal
about ending the lawsuit. If so, you should
strategyeven something as simple as the
not contact your lawsuit opponent
identity of a witness or the existence of
directly. But there are some things you can
evidence proving the clients claimsthe
do. First, you can pass the information on
results can be disastrous.
to your lawyer and ask the lawyer if it
A client should even refrain from discuss-
seems an appropriate time to explore a
ing the dispute with friendly witnesses.
settlement with the other side. (See
Although it is not unlawful to speak with a
Chapter 8.)
witness, it might appear that the party is
If the lawyers are unable to reach a
trying to influence what that witness will
settlement without you and the other side
say. Of course, some witnesses would
sitting down face to face, that, too, can be
rather talk to the clienta person they
arranged. The lawsuit can be suspended
knowthan to the lawyer. If a client wants
temporarily so that you and your opponent
to talk to a witness, the client should
may sit down together in a process known
discuss it with the lawyer first. Together,
as mediation. (See Chapter 6.) With the
client and lawyer can decide whether the
help of the lawyers and a professional
conversation makes sense, what questions
mediator, you and your opponent may be
the client should ask and what topics the
able to hash things out face to faceand
client would do best to avoid.
put an end to the lawsuit.


Chapter 3

Getting a Lawsuit Started: The Pleadings

Section I: The Complaint ............................................................................................ 3/3


1. What are the basic elements of a Complaint? ....................................... 3/3
2. May there be more than one Plaintiff in the same lawsuit? ................... 3/5
3. Are there advantages to joining with other Plaintiffs in the
same lawsuit? ....................................................................................... 3/5
4. Where is a Complaint filed? ................................................................. 3/6
5. How do my lawyer and I decide where to file the lawsuit? .................. 3/7
6. How does my lawyer decide whom to name as Defendants? ............... 3/8
7. What if I dont know all the potential Defendants? ............................... 3/9
8. What kinds of facts belong in the Complaint? .................................... 3/10
9. How does a Complaint spell out the Defendants legal liability? ........ 3/11
10. How does the Complaint explain what I want the court to do? .......... 3/12
11. Can my Complaint ask the court to settle a dispute even if
I havent yet suffered any harm? ......................................................... 3/15
12. Can my Complaint ask the other side to pay my legal fees? ............... 3/15
13. Can my Complaint ask the other side to pay my litigation costs? ........ 3/16
14. Do I have to swear under oath that the facts in
my Complaint are true? ...................................................................... 3/16
15. Once the Complaint is filed in court, what happens next? ................. 3/17
16. What are Defendants options in responding to my Complaint? ......... 3/19
17. Once the lawsuit is underway, can my lawyer amend
the Complaint? ................................................................................... 3/20
18. How does my lawyer file an amended pleading? ............................... 3/20
19. How does a judge decide whether to allow an amended pleading? ... 3/21
3/2 THE LAWSUIT SURVIVAL GUIDE

Section II: Defending Against a Complaint: Responsive Pleadings ............................ 3/21


20. What is an Answer? ............................................................................ 3/22
21. How forthcoming should I be in my Answer? ..................................... 3/23
22. Does an Answer contain legal arguments? ......................................... 3/24
23. What happens if my responsive pleadings arent filed in time? ........... 3/24
24. What can my lawyer do if the Complaint doesnt make any
valid legal claims against me? ............................................................ 3/25
25. If the judge rules that the Complaint doesnt state a legal
claim against me, what happens next? ............................................... 3/27
26. Can my lawyer object only to certain parts of the Complaint? ............ 3/27
27. Can I have the Plaintiffs whole case against me tossed
out of court at the outset? ................................................................... 3/28
Section III: The Defendant Strikes Back: Countersuits ................................................ 3/29
28. When can a Defendant file a countersuit? .......................................... 3/29
29. What kinds of claims can I raise in a countersuit,
and against whom? ............................................................................ 3/30
30. Are there some issues that I must raise in a countersuit? .................... 3/31
Section IV: Litigating on Behalf of a Minor: Guardian ad Litem .................................. 3/31
31. What is a Guardian ad litem? ............................................................. 3/32
32. Who can be appointed Guardian ad litem? ........................................ 3/32
33. How is a Guardian ad litem appointed? ............................................. 3/33
34. What are the terms of a Guardian ad litems appointment? ................ 3/33

How You Can Help Your Lawyer

Prepare the Complaint ............................................................................ 3/11


Prepare an Answer .................................................................................. 3/23
Prepare a Countersuit ............................................................................. 3/29
GETTING A LAWSUIT STARTED: THE PLEADINGS 3/ 3

W
hen someone decides to begin
Filing Papers with the Court
a lawsuit, the lawyer represent-
ing that person prepares a Much of a lawsuit is conducted on paper.
document called a Complaint. This is the Each side prepares written statements and
first of the initial set of lawsuit papers known legal arguments, which are delivered to
as the pleadings. The person for whom a the opposing side in the lawsuit and sent
Complaint is prepared is called the Plaintiff; to the court in which the case is being
the person being sued is referred to as a litigated. Because of time limits and dead-
Defendant; together, Plaintiff and Defendant lines for most lawsuit procedures, lawyers
are called parties to the lawsuit. In reply to frequently say a document needs to be
the Complaint, a Defendant must file one of filed. What lawyers mean by filing is
several kinds of documents, known as formal delivery to the court clerks office,
responsive pleadings. which notes the date on which it was
Plaintiffs and Defendants pleadings have received and places the document in the
three basic purposes: court file created for your lawsuit. Some
they set out each sides version of the courts now also allow electronic or
basic facts paperless filingfiling documents
they offer each sides general argu- electronically, using the Internet.
ments about the legal bases of their
claims or defenses, and
they get the whole lumbering litigation
process moving. 1. What are the basic elements
This chapter explains what these initial of a Complaint?
pleadings are and how they accomplish
these purposes. A Complaint names the people directly
involved on both sides of the lawsuit: all
the Plaintiffs suing and all the Defendants
Section I: The Complaint being sued. The Complaint also tells a
Defendant where the case has been filed
A person, business or organization suing and describes the dispute, setting out the
someone else is a Plaintiff in the lawsuit. To basic facts on which Plaintiff bases the
get the litigation started, Plaintiffs lawyer lawsuit. It also refers to the legal theories
prepares a document called a Complaint. Plaintiffor rather, Plaintiffs lawyer
The Complaint is delivered to whomever is believes make the Defendant legally
being sued, called the Defendant, and is responsible for the problems about which
filed with the court. Plaintiff is complaining. Finally, the Complaint
3/4 THE LAWSUIT SURVIVAL GUIDE

Deciding to File a Complaint

Filing a Complaint sets a lawsuit in motion. to continue negotiations and dont relish
And once its moving, a lawsuit quickly eats the idea of litigation, merely filing a
up time, energy and money. For this reason, lawsuit can sometimes move the other
most people involved in disputes dont rush side to make a reasonable settlement
into court immediately; instead, they try to offer (particularly if you have been try-
resolve their problems informally, by talking ing to settle a dispute with someones
to each other directly or through lawyers. At stubborn insurance company).
some point, however, it might be necessary You need immediate help from the
to abandon these informal discussions and courtSometimes, you simply cannot
get a lawsuit started. You should think wait to file a lawsuit. You may need a
about filing a Complaint in these circum- court to step in immediately to prevent
stances: destruction or damage to your property
Youve reached an impasse with the or the ruining of your business. Or, you
other sideYou may be ready to file a may need a court to settle an ownership
lawsuit because your attempts to settle dispute so that you can move ahead
your dispute have gone nowhere. How- with personal or business plans.
ever, it is often a good idea to give your Youve run out of timeThere is a
lawyer a chance to negotiate with the legal time limit, known as the Statute of
other party or partys lawyer, at least for Limitations, within which a Complaint
a short time, before filing a lawsuit. must be filed. The time limit varies
Lawyers sometimes can come up with depending on the type of dispute
settlement scenarios that you and your (contract, personal injury, etc.) and the
opponent have not considered. And rules of the jurisdiction and court where
sometimes the other sides lawyers can the dispute arose. If a Complaint is not
make a settlement more attractive by filed within that time, the person who
explaining to their clients what a law- might have filed it forever loses the right
suit would entail. to sue. So if the Statute of Limitations
You want to shock the other side into regarding your dispute may soon run
reactingA lawsuit quickly gets out, your lawyer has to file a
someones attention. Even if you intend Complaint.
GETTING A LAWSUIT STARTED: THE PLEADINGS 3/ 5

states what the Plaintiff wants to obtain or Several Hats on One Head
achieve through the lawsuit, such as Means Several Plaintiffs
monetary compensation, establishment of
Someone filing a lawsuit, particularly in a
ownership or other rights or preventing
business dispute, may be acting in several
Defendant from engaging in specified
capacities at the same time. A Defendant
future conduct.
may have harmed both the Plaintiffs
individual interests and the interests of
Plaintiffs business. Plaintiffs business may
2. May there be more than one Plaintiff
be divided into several entities, such as a
in the same lawsuit?
corporation, partnership and/or one or
more publicly identified business units,
Yes. Often, more than one person wants to
often called dbas (doing business as). If
sue the same Defendant for the same
each of these entities or interests has been
misconduct. Obvious examples are:
harmed by a Defendants conduct, then
several people hurt in the same car
each may and should be named in the
accident
Complaint as a separate Plaintiffeven
spouses suing for financial or other
though underneath all the hats sits only
losses that affected both
one real head.
co-workers suing an employer for the
same conduct, or
business partners suing in a commer-
cial dispute.
In such situations, two or more people or 3. Are there advantages to joining with
organizations may be able to join as Plain- other Plaintiffs in the same lawsuit?
tiffs in the same Complaint. The rule is that
two or more people may sue together if Multiple Plaintiffs may enjoy some advan-
their claims arise out of the same dispute. tages. They can share information, one
In general, this means that each of their lawyer can do the same work for more
problems with the Defendant occurred than one client or, if there is more than one
because of the same or similar actions by lawyer, they can divide the lawsuit tasks.
the Defendant (though not necessarily at This might mean fewer lawyer hours and
the same time). other costs for each client. And having
more than one Plaintiff in the same lawsuit
sometimes exerts added pressure on the
Defendant to settle the case.
3/6 THE LAWSUIT SURVIVAL GUIDE

Joining with other Plaintiffs in the same


One Lawyer or Two?
lawsuit is not always in a Plaintiffs best
interest, however. If one Plaintiff has a If you are joining with someone else as
more complex case, the simpler case may Plaintiffs in the same lawsuit, you may
get stuck waiting for the other part to wend each have your own attorney. But in some
its way through litigation. Or, the Plaintiffs circumstancesif there is no conflict of
may have different goals. For example, one interest (see Chapter 1, Section I)you
Plaintiff may be much more interested, will- can instead use the same lawyer. If you are
ing or financially able to fight a long hard paying by the hour, it may be considerably
legal battle while the other Plaintiff wants cheaper for you to use the same lawyer
to reach a simple, inexpensive conclusion and share costs and legal fees with the
as soon as possible. other Plaintiff. It may also help move the
Sometimes, two Plaintiffs want to pursue case more quicklyas a general rule, the
different legal strategies. One Plaintiffs fewer lawyers there are, the faster cases
legal strategy might require more time, get resolved.
energy and legal fees than another Plaintiff Although there can be advantages to
wants to spend. Or one Plaintiff may raise having one lawyer represent two or more
allegations against the Defendant that the Plaintiffs, there might also be advantages
other Plaintiff does not want to make. For to having your own, separate lawyer. You
example, one Plaintiff may want to pursue may be better able to influence how the
a simple case of breach of contract, seeking litigation is conducted if the lawyer is
only to get his or her money back, whereas answerable only to you. And if two law
another Plaintiff may want to claim fraud, offices work on one case, more work
seeking large extra monetary compensation. might get done, putting more pressure on
Finally, Plaintiffs are not the only ones the Defendant. If Plaintiffs lawyers are
who have a say in this matter. If a Defendant able to cooperate, the litigation may move
is sued in two separate lawsuits that are in more efficientlywhich could benefit
some way related, the Defendant may ask both Plaintiffs.
the court to combine the two lawsuits into
one. (See Chapter 5, Section IV.) On the
other hand, if several Plaintiffs have joined
in one complex lawsuit against a Defen- 4. Where is a Complaint filed?
dant, the Defendant may ask the court to
split the big lawsuit into two or more For many lawsuits, only one court is legally
smaller ones. (See Chapter 5, Section IV.) available. But in other instances a Plaintiffs
lawyer has some choice about where to file
GETTING A LAWSUIT STARTED: THE PLEADINGS 3/ 7

a Complaint. There are three decisions to Location of the court. A Plaintiff cannot
make in determining where the Complaint file a lawsuit just anywhere. The county or
gets filed: district where a lawsuit is filed must have
Is it filed in state or federal court? some logical connection to the dispute. The
Which level of court (upper or lower) geographic area where a lawsuit is filed is
is used? referred to as venue. Most state and federal
Which geographical location is appro- courts have numerous geographical loca-
priate? tions. Federal trial courts are divided into
State or federal court. There are two different districts, and sometimes into
entirely different court systemsfederal smaller subdivisions within districts. State
and state. Most cases must be filed in state trial courts are usually divided by county
court. A case may be filed in federal court (some larger counties have more than one
only if federal law specifically allows that district) or by city.
type of lawsuit. The two main categories of Venue is propermeaning a lawsuit may
cases that can be filed in federal court are be filed in that geographical areain the
those involving enforcement of federal laws district where the defendant resides, where
or rights (called cases with a federal ques- a contract was formed or where the activities
tion), and those between residents of giving rise to the dispute took place. Some-
different states (called diversity cases). times a lawsuit may be filed in one of
Lawsuits that involve both federal and state several different venues. For example, if
laws generally may be filed in either state different Defendants live in different coun-
or federal court. ties or districts, or the dispute arose in one
Level of trial court. In some state judicial place but a Defendant lives in another, a
systems, there are two levels of courts in lawyer may be able to choose among two
which a lawsuit can be litigated and tried. or more possible venues.
In these trial courts, there may be a higher
level court for more complicated cases
(often called Superior Court) and a lower 5. How do my lawyer and I decide
level court for smaller, simpler cases (called where to file the lawsuit?
Municipal Court, District Court or Court of
Common Pleas). There is often a limit on the Sometimes, only one venue is proper for a
amount of money a party may recover in the dispute. If a lawsuit may be filed in one of
lower level trial court. Some lower level several courts, however, the Plaintiff has to
trial courts also limit the type or number of decide where to bring the case. Factors to
legal procedures permitted, in an effort to consider in making this decision include:
make the proceedings more efficient and Time. Cases move considerably more
less costly. quickly in some courts than in others,
3/8 THE LAWSUIT SURVIVAL GUIDE

due to local rules or courtroom back- Judges and juries. Not all judges and
log. If no other consideration out- juries are created equal. A lawyer may
weighs it, a Plaintiffs desire to resolve know the judges in one court better
the case quickly may suggest one than those in another. The judges and
court over another. On the other juries in one court may be more or
hand, many courts have what are less receptive to certain kinds of cases
called fast track programs that force or litigants. For example, judges and
lawyers and litigants to meet very juries in well-to-do suburban areas
short litigation deadlines. If a lawyer tend to be less sympathetic to people
believes that it would be better to injured in accidents and to individuals
have more time to prepare and pro- suing corporations. And some courts
cess the lawsuit, it might be better for may be notoriously less accommodat-
the litigant to avoid a fast track ing to minority and women litigants
court. and lawyers than other courts.
Convenience. One court might be Jury verdicts. In federal court, a jurys
more convenient than another verdict must be unanimous. In some
because of its proximity to Plaintiffs state courts, however, a jury in a civil
home, the office of Plaintiffs lawyer trial can return a verdict with a less
or the residences of most witnesses. than unanimous vote. This increases
Court procedures. Some courts the odds that a jury trial will result in
including many lower level state trial a verdictand decreases the chance
courtshave simple procedures that of a deadlocked jury (and expensive
move a case along more quickly and retrial). If a Plaintiff has considerably
less expensively. A court with more fewer financial resources than Defen-
elaborate procedures might make liti- dant, Plaintiffs lawyer might advise
gation more complicated for lawyers filing the lawsuit in a court that does
and more expensive for clients. How- not require a unanimous verdict.
ever, if a case is complex or other-
wise difficult to prove, a lawyer might
advise choosing a court where more 6. How does my lawyer decide whom
thorough procedures are available to name as Defendants?
despite the increased time and ex-
pense. Also, many lower level trial The question of what person, business or
courts have limits on the amount of organization to suetechnically speaking,
money that can be awarded, which whom to name in the Complaint as a
may preclude filing a particular case Defendantoften has an obvious answer.
there. If youve had an accident or dispute with
GETTING A LAWSUIT STARTED: THE PLEADINGS 3/ 9

an individual or a business, that person or Finding a Defendant Who Can


business will be the one and only Defendant. Compensate You
Sometimes its not that simple, however.
Your lawyer wants to name as Defendants
For example, an employer may be legally
in the Complaint every person or organiza-
responsible for an employees actions, so
tion that might be legally responsible for
perhaps both should be sued for the
any damages you have suffered. In part,
employees misconduct. Or if a business is
this is because it is not always clear at the
owned by more than one person, or by
outset of a lawsuit who is most legally
another company, all owners should be
responsible. But naming all possible
named as Defendants. Similarly, both the
Defendants has another purpose: it in-
driver and the owner of a car may be
creases the likelihood that at least one of
legally responsible for a car accident; if
them might be financially capable of
road conditions contributed to the accident,
compensating you.
the city or county could be on the hook as
Sometimes, the Defendant most respon-
well.
sible for your damages has few assets and
There is no limit to how many Defendants
no insurance coverage. A Defendant who
may be named in a single lawsuit. It is
has a lower degree of legal responsibility
Plaintiffs lawyers job to determine who
might nonetheless have plenty of resources
might be legally responsible. To help the
to pay its share of your damages. A com-
lawyer, a client should provide the identities
mon example is an employee who injures
of anyone even marginally connected to
someone while at work. The employee,
the dispute. The lawyer can then sort out
who is primarily responsible for the injuries,
whom to include as Defendants. Some-
may have little or no money. The employer,
times, however, neither the Plaintiff nor
on the other hand, maintains insurance to
Plaintiffs lawyer are certain, among several
cover just such a situation, and so must be
possible Defendants, who did what or who
included as a lawsuit Defendant.
is legally responsible. In that situation, all
potentially responsible persons should be
named in the Complaint. If it turns out, as
the case moves along, that certain Defen-
dants clearly have no legal responsibility, 7. What if I dont know all the
Plaintiffs lawyer can easily release them potential Defendants?
from the lawsuit. Or the Defendants
themselves can ask a judge to cut them Sometimes, a Plaintiff knows or suspects
loose. that certain people or businesses are at
3/10 THE LAWSUIT SURVIVAL GUIDE

least partially responsible for the problems Section II.) On the other hand, the Complaint
that have led to the lawsuit without know- need not include every nasty, irritating,
ing exactly who they are. Or a Plaintiff may incompetent or otherwise negative thing
know for certain that someone is responsible every Defendant ever did or said. Nor must
but not know that persons name. How- the Complaint include every fact that might
ever, a Plaintiff may want or need to file a be proved in the case. It is the lawyers job
Complaint before discovering the identity to strike a balanceenough facts, but not
of every Defendant. To accommodate too manyin the Complaints allegations.
Plaintiffs in this situation, the law allows
the Complaint to name what lawyers call
Doe Defendants (after the fictitious name
Just the Facts, Maam.
Doe they are given in the Complaint).
These Doe Defendants serve as placehold- Striking the right balance in stating the
ers for the actual Defendants whose names facts can help hold down the expense of
Plaintiff does not yet know. Their real names the lawsuit. Factual allegations are like red
can be substituted in once they are learned. flags to litigating lawyers; they are likely to
By naming Doe Defendants, a Plaintiffs spend time and energy trying to prove or
lawyer insures that Defendants discovered disprove them. If certain facts alleged in
later can be added to the lawsuit. Because the Complaint turn out not to be crucial to
it is so difficult to predict whether addi- a determination of legal responsibility, all
tional Defendants will spring up in the the activity generated by the allegations
course of litigation, Plaintiffs attorneys may prove to have been a waste. And if
routinely include Doe Defendants in the any of those unnecessary facts or added
Complaint. details turn out to be false, you might lose
some of your credibility in the eyes of a
jury.
8. What kinds of facts belong in The clients role is to provide all infor-
the Complaint? mation that might have anything to do
with the dispute, being clear with the
One of the main purposes of the Complaint lawyer about what things the client knows
is to disclose the Plaintiffs version of the for certain and what other things the client
facts. Whatever the facts are, they must be believes to be true but does not know for
sufficient to pin legal responsibility on a sure. The lawyers job is to sort all this out
Defendant. Otherwise, the Defendant may and generate a focused Complaint that
have the Complaint thrown out of court gets to the heart of the matter.
before the lawsuit even gets started. (See
GETTING A LAWSUIT STARTED: THE PLEADINGS 3/ 1 1

How You Can Help Your Lawyer everything that undermines it. Your lawyer
Prepare the Complaint must consider the negative facts in planning
Information is the key to any lawsuit. At the the lawsuit, which begins with the Complaint.
beginning of a case, almost everything your These conversations with your lawyer are
lawyer knows about the dispute comes from confidential; you need not worry that your
you. So the quality of the Complaint your law- lawyer will have to reveal these facts to anyone.
yer prepares may depend on how thoroughly
and accurately you provide that information.
There are several things you can do to help 9. How does a Complaint spell out the
your lawyer prepare the Complaint: Defendants legal liability?
If you have not done so already, write
down a time-line or narrative descrip- One of a lawyers primary tasks in prepar-
tion of all the important events that led ing a Complaint is to fit the facts into legal
to the dispute. theories that show exactly why the Defendant
List the names and addresses of anyone should be held responsible for Plaintiffs
who might know something about the troubles. Each legal theory is described in a
dispute, along with a description of who separate section of the Complaint called a
they are and what information they cause of action. For example, the facts may
might have. show that a Defendant refused to live up to
Give your lawyer all key documents you the terms of a contract. Plaintiffs lawyer
havecontracts, letters, business might include in the Complaint one cause
records, emails and photographsthat of action for breach of contract and another
relate to the case. Include any corre- for fraud, based on promises the Defendant
spondence you have had with the other made but never intended to keep.
side about trying to settle the dispute. Lawyers tend to include a number of
Let your lawyer know about any similar different causes of action in the Complaint.
legal disputes in which either you or Often, each cause of action describes the
your lawsuit opponent has been involved. same event or conduct but with a different
Tell your lawyer about any privacy legal slant. Multiple causes of action increase
concerns you have regarding personal the likelihood that the case can be won on
or business information. This may help at least one of the underlying legal theories,
the lawyer craft the Complaint in such a even if the others fail. For example, one
way that the lawsuit does not invite un- cause of action may depend on facts that
wanted prying. turn out to be easier to prove than others.
As you educate your lawyer, you must in- Or all the facts may turn out to support one
clude the bad news. Tell your lawyer every- legal theory but not another. Including dif-
thing that supports your position and ferent causes of action protects the Plaintiff
3/12 THE LAWSUIT SURVIVAL GUIDE

at the beginning of the lawsuit, Plaintiffs according to proof (what the facts
lawyer wont know what facts finally will show as the case develops). In some
be proven, what seeming facts will disap- courts, the Plaintiff is expected to state,
pear into thin air and what previously in the Complaint, the specific dollar
unknown facts will drop from the sky. amount sought. Since the Plaintiff may
Plaintiffs lawyers sometimes include par- have only a vague idea of damages at
ticular causes of action (such as fraud) be- the beginning of the lawsuit, most
cause they raise the possibility of punitive lawyers pick a round number large
damages against the Defendant, and other enough to cover all possible damages.
causes of action (such as breach of con- Obviously, this amount will never be
tract) because they might permit the award recovered in full. (This tends to pro-
of attorney fees. (Punitive damages and duce hysterical media reports that so
attorney fees are discussed in Questions 10 and so is demanding millions. The
& 12.) reason for the large figurethe need
to ask for enough to properly com-
pensate the Plaintiffis seldom
10. How does the Complaint explain explained.) Sometimes compensatory
what I want the court to do? damages are broken down further in
the Complaint, into categories known
The final section of a Complaint is called as special damages and general dam-
the Prayer (and like other prayers, it asks ages. Special damages refer to money
for considerably more than is likely to be owed or spent as a result of the
received). The Prayer states what relief the Defendants conduct; a common
Plaintiff wants: what the Plaintiff wants the example is medical bills resulting
court to order the Defendant to do, such as from an accident. General damages
pay the Plaintiff money, take a specific refer to money the Plaintiff contends
action or stop doing something. A Plaintiff has been or will be lost but which
might ask for a variety of things, depending cannot be calculated exactly. These
on the nature of the case. The basic catego- general damages compensate Plaintiff
ries of relief are: for injuries that do not easily translate
Compensatory damages. Compensatory into dollars and cents, such as the
damages compensate the Plaintiff for pain and suffering endured as a result
any losses or injuries caused by the of physical injuries, the discomfort
Defendants conduct. In many courts, and emotional injury suffered from
the Plaintiff does not specify how discriminatory conduct or the damage
much money is sought. Instead, the done to personal or business reputa-
amount is to be determined later tion because of a libel or slander.
GETTING A LAWSUIT STARTED: THE PLEADINGS 3/ 1 3

Punitive damages. Also called exem-


Think Twice Before You Claim
plary damages, punitive damages are
Certain Damages
money that a judge or jury makes a
In general, you and your lawyer will want Defendant pay the Plaintiff as a kind
to include in the Complaint a reference to of punishment, similar to a fine. Puni-
each of the consequencesall the things tive damages are awarded when the
you have lost or sufferedresulting from Defendant has committed particularly
the Defendants actions. You must include outrageous acts, such as when the
any types of damages for which you Defendant has engaged in intentional
want a judge or jury to award you com- or highly reckless misconduct, fraud,
pensation. misappropriation of funds, activity
However, it is not always a good idea to dangerous to the public or invasion of
include every possible claim of damages. privacy. The amount of punitive dam-
If you contend that you have been harmed ages varies according to how awful
in a certain way, the other side will be the Defendants behavior was, how
permitted to question you closely about serious the consequences were and
these damages. You may be forced discuss how much the Defendant is worth
aspects of your personal or business life (that is, how much it would take to
that you would rather not disclose. make the damages be a real punish-
If you allege that you suffered emo- ment). Punitive damages are also
tional distress, for example, the other side available if the Defendant violates a
may be permitted to examine records of specific law that expressly provides for
any psychiatric, psychological or other such damages. For example, laws that
therapeutic treatment you have under- prohibit discrimination in employment
gone, even if it covers personal matters not and housing allow for punitive dam-
related to the lawsuit. And the doctor or ages awards. Some laws limit punitive
therapist with whom you consult might be damages to an amount three times
subject to face-to-face examination about greaterreferred to as treble damages
your treatment. Similarly, if you claim that than the compensatory damages
the Defendant caused your business to awarded in the case. Punitive dam-
suffer damages that are difficult to mea- ages are more likely to be awarded,
sure, the other side might be allowed to and more likely to be high, when the
delve deeply into your business practices Defendant is a large corporation rather
and financial records. than an individual or small business,
and more likely if the Defendant
engaged in a long pattern of conduct
rather than a single nasty act. How-
3/14 THE LAWSUIT SURVIVAL GUIDE

ever, a lawyer may decide to include


What Is My Case Worth?
a request for punitive damages even if
there isnt much chance of winning a You dont have to decide what your case
large amount. The mere possibility of is worthhow much you are likely to be
punitive damages may make the De- awarded if you win at trial, as well as the
fendant more likely to settle the case (lower) amount you might realistically ex-
on terms more favorable to Plaintiff. pect the other side to offer in settlement
Equitable relief. In addition to asking before filing the Complaint. At that point,
for money, a Complaint may request it is probably too soon for you and your
that the court sort out the parties lawyer to have a very good idea of what
respective rights to property or other the case is worth. In the Complaint, the
interests. For example, a court may lawyer simply needs to ask for a figure at
order the rescission of a contract, mean- least as high as you could possibly imag-
ing that the parties responsibilities ine winning. Nonetheless, it is important
under the contract are declared at an to consult with your lawyer early in the
end. Conversely, a court may order process about what a realistic range of
specific performance of a contract, damages might be.
meaning that both parties must follow In making this assessment, you need to
through on their obligations under the know whether a request for punitive
agreement. Or, a court may order the damages is realistic or is merely a litiga-
dissolution of a partnership or corpo- tion tactic. If you are paying your lawyer
ration and a division of its assets and by the hour, you also need to know the
liabilities. Equitable relief may also likelihood that the other side will be re-
include a court order that a Defendant quired to pay your attorney fees. Realistic
take some action, or refrain from assessments of settlement and verdict
doing so. For example, a court may amounts may go up or downand
order Defendant to move a fence that perhaps bothas the lawsuit progresses.
encroaches on Plaintiffs property or But by regularly asking for your lawyers
stop using a business name similar to current sense of the value of the case,
the one Plaintiff uses. This kind of you should be able to gauge how much
court order is known as a permanent you are willing to spend on the litigation
injunction. (Temporary injunctions and how much the other side would have
are also sometimes available long be- to offer for you to settle the case.
fore a case is finally resolved; the spe-
cial steps and rules regarding
temporary injunctions are discussed in
Chapter 5, Section II.)
GETTING A LAWSUIT STARTED: THE PLEADINGS 3/ 1 5

11. Can my Complaint ask the court to declare (clarify) the rights and obligations
settle a dispute even if I havent yet of both parties, so that they can carry on
suffered any harm? their daily business without a legal uncer-
tainty hanging over their heads.
In certain cases. Normally, a person may Declaratory relief is used to settle a
not file a Complaint until he or she has number of different kinds of questions, the
actually been harmed as a result of some- most common of which are:
one elses actions. Otherwise, the courts who is obligated to do what under
would be flooded with people who merely the terms of a written contract
worry that someone was about to do them who is covered by an insurance
wrong. But there are a few situations in policy, and to what extent
which a court will make a decision in what are the rights of property owners,
advance to avoid a future problem. This such as determining boundaries of
kind of lawsuit is called an action for adjacent properties or ownership of
Declaratory Relief. The court is asked to property among several claimants
(called a lawsuit to quiet title), and
whether and how a specific local,
state or federal law applies to a
particular business, property or orga-
nization.

12. Can my Complaint ask the other


side to pay my legal fees?

Sometimes. In most lawsuits, each side


must pay its own attorney fees. But in
some cases, the losing side in the lawsuit
may be forced to pay the winning sides
fees. Since attorney fees can be enormous,
the possibility of recovering them from the
other side is sometimes more important
than the amount of damages won. If the
Plaintiff cant afford to pay a lawyer, the
possibility that attorney fees will be paid by
the loser might be the major incentive for a
lawyer to take the case.
3/16 THE LAWSUIT SURVIVAL GUIDE

Regardless of how a Plaintiff and lawyer Lawsuits by the government. If a gov-


have arranged for the lawyer to be paid, ernment agency files a lawsuit against
the lawyer will often include in the Com- an individual, business or organization,
plaint a cause of action that supports an the government may be entitled to
award of attorney fees against the other attorney fees if the government wins
side. Even if there is little likelihood of the case.
winning the lawsuit based on that particular
legal theory, the mere possibility that the
other side might have to pay Plaintiffs law- 13. Can my Complaint ask the other
yer fees might make them more likely to side to pay my litigation costs?
settle the case on terms more favorable to
Plaintiff. Yes. The losing side in a lawsuit is usually
Attorney fees typically are awarded in ordered to pay the costs incurred by the
several kinds of lawsuits: winning side, so a Complaint always in-
Contract disputes. Many contracts re- cludes a formal request that they do so. In
quire the losing party in any dispute most states, these costs include fees charged
over the contract to pay the winners by the courts to file legal documents, jury
fees. fees and deposition costs, which can run
Lawsuits to enforce protective laws. quite high. However, official litigation costs
Many state and federal laws, notably do not include many expenditures for
those designed to protect individuals which a lawyer charges the client. For
against discrimination by businesses example, the costs of copying, long-distance
and institutions, provide that a losing phone calls, messenger services and con-
Defendant must pay the attorney fees sultations with experts do not have to be
of the Plaintiff who was wronged. paid by the losing side.
These attorney fee provisions are
written into the protective statutes
themselves. 14. Do I have to swear under oath that
Lawsuits against the government. A the facts in my Complaint are true?
lawsuit by a private individual or
business against a local, state or fed- In some states, a Plaintiff must sign a form
eral government agency is permitted accompanying the Complaint in which the
only if there is a specific law on the Plaintiff states under oath that the facts
books that allows such a lawsuit. though not the legal rigmarolein the
Often, such laws also permit a person Complaint are true. In other states, this
who successfully sues the government oath, called a Verification, is optional.
to obtain attorney fees. Verification of a Complaint has two effects.
GETTING A LAWSUIT STARTED: THE PLEADINGS 3/ 1 7

In courts where it is required, it is intended Holding Back on Service


to prevent people from filing Complaints May Simplify a Lawsuit
full of wild allegations they have no way of
As explained above, Plaintiffs lawyer
knowing or proving. Swearing that a fact in
needs to name as Defendants everyone
a Complaint is true is like testifying to that
who might conceivably bear some legal
fact in court; the sworn allegation in a
responsibility for the harm suffered by
Complaint ties the Plaintiff to that fact for
Plaintiff. But some of these Defendants
the rest of the lawsuit. If the Plaintiff or
may have only minimal responsibility, or
other witnesses later contradict that sworn
few resources from which to pay compen-
fact, the Plaintiff will have to explain the
sation. Forcing them into the lawsuit might
contradiction to the judge or jury. The other
require them and Plaintiff to spend re-
effect of a verified Complaint, in some states,
sources needlessly. The solution is to
is that it requires a verified and detailed
name them as Defendants but wait to serve
Answer from the Defendant. If the Com-
them with the Summons and Complaint.
plaint is unverified, the Defendant generally
Unless local fast track rules require
can file a blanket denial. (See Section II.)
service of process within a particular time
period, the legal time limit for serving a
Defendant is usually considerably longer
15. Once the Complaint is filed in
than the time for filing a Complaint. By
court, what happens next?
waiting to serve, the Plaintiff can include
marginal Defendants in the Complaint but
The lawsuit may not proceed until the
exclude them from the actual litigation, at
Plaintiff gets a copy of the Complaint into
least until their involvement is required.
the hands of the Defendanta procedure
known as service of process. Until service of
process has occurred, the court has no
jurisdiction (legal authority) over the defen- There are several ways in which a Sum-
dant. In addition to the Complaint, the mons and Complaint may be served on a
Defendant must be served with a document Defendant.
called a Summons: the courts official notice Personal service. A Complaint and
to the Defendant that the lawsuit has been Summons may be hand-delivered to
filed. The Summons contains prescribed the Defendant. If the Defendant is a
language, usually on a pre-printed form, corporation, the papers are delivered
explaining to Defendants what it means to to the corporate officer whom the
be served with a Complaint, how they may company has designated for that pur-
respond, how long they have to do so and pose. This can be done by someone
what happens if they dont. in the Plaintiffs lawyers office or by a
3/18 THE LAWSUIT SURVIVAL GUIDE

professional process server. A client fendant personally. Instead, Plaintiffs


can make personal service easier for lawyer may send the Complaint and
the lawyer to arrange, and therefore Summons by registered mail to the
cheaper for the client, by providing Defendants home or business (or
recent, detailed information about lawyers office, if the Defendant al-
where the Defendant lives and works. ready has an attorney). Accompanying
In most states the Plaintiff is not the mailed Summons and Complaint
allowed to be the person who hand- is a form, called Acknowledgment and
delivers the Complaint. Receipt or Acknowledgment of Service,
Substitute service. Often a would-be which the Defendant signs and sends
Defendant knows a Complaint is com- back to Plaintiffs lawyer. This form
ing and is anxious to get on with the acknowledges that the Defendant has
process, or is at least willing to accept received the Summons and Complaint,
the inevitable. If so, some courts do which satisfies the court that Service
not require Plaintiff to serve the De- of Process has been accomplished.
Most courts also permit a type of
substitute service if the Defendant is
dodging the process server or simply
cannot be located. In these situations,
a copy of the Complaint is handed to
any adult found at the Defendants
residence. Another copy is then sent
to the Defendant at that address by
registered mail.
Constructive service. If neither personal
service nor substitute service is fea-
sible, courts have various procedures
known as constructive service, which
allow a Plaintiff to serve the Complaint
even if the Defendants whereabouts
is unknown. In some courts, Plaintiffs
lawyer may do this by mailing the
Complaint to the Defendants last
known residence and place of work,
and listing the summons in the Legal
Notices section of a local newspaper.
However, it is risky to depend on
GETTING A LAWSUIT STARTED: THE PLEADINGS 3/ 1 9

constructive service. If the Defendants the Plaintiffs lawyer believes a judge is


last known address is not the likely to agree with the Defendants lawyers
persons most recent residence or argument, both lawyers can informally agree
workplace, a court might not consider that Plaintiff will amend the Complaint if
the constructive service legally suffi- Defendant drops the challenge. In other
cient. In that case, any legal procedures words, Plaintiff can simply concede the
taken against the Defendant will be point, saving the time and expense of fight-
ineffective. ing a fruitless legal battle.
If such a compromise is not possible, or
if for some other reason Plaintiffs lawyer
16. What are Defendants options in believes it is important to fight the chal-
responding to my Complaint? lenge, Plaintiffs lawyer will reply as to any
other motion. (The process for making and
Once the Complaint is served, a Defendant opposing a motion is explained in Chapter
has several options. The Defendant might 5, Section I.) However, even if the Plaintiff
file an Answer (see Section II), which loses in court on one of these motions or
would immediately set the lawsuit in Demurrers, the judge will almost always
motion. Depending on how thorough permit the Plaintiff to amend the Complaint
Plaintiffs Complaint is and whether or not and file it againunless it appears to the
it is verified, the Answer might be a flat judge that the Plaintiff flat out doesnt have
denial of everything in the Complaint, or it a case.
might be a point-by-point admission and
denial of specific facts. The Answer may Who Pays for Redoing the Complaint.
also include specific legal theories, known If your Complaint must be amended
as affirmative defenses, which argue that particularly if it must be amended more than
Defendant should not be held responsible onceand you are paying your lawyer by the
for Plaintiffs troubles. (See Section II.) hour, you may want to ask your lawyer why
Rather than answer the Complaint right the Complaint was flawed in the first place.
away, a Defendant may challenge the Perhaps you have a very difficult case to ar-
Complaints legal validity and ask a judge ticulate and the lawyer is doing as well as
to order the Plaintiff to amend it (do it possible. Drafting complaints is as much art as
over again). If a Plaintiff receives one of science. Even the best lawyers, trying to
these responses to the Complainta Motion squeeze in an argument that might put more
to Quash, Demurrer or Motion to Strike (see pressure on the Defendant, prepare Com-
Section II)Plaintiff and Plaintiffs lawyer plaints that have to be amended. Often the
must decide whether it is worth the time, lawyer has taken the calculated risk of putting
money and delay to oppose it in court. If extra ammunition into the Complaint, know-
3/20 THE LAWSUIT SURVIVAL GUIDE

ing that some of it might have to be removed 18. How does my lawyer file an
if challenged by the Defendant. If your lawyer amended pleading?
had a good reason for the way in which the
first Complaint was prepared, you may have The simplest way to file an amended Com-
to accept the need for an amendment as the plaint or Answer (see Section II) is to get
result of a tactical decision that did not work the other sides permission. The lawyer for
out perfectlyone of the unfortunate but nor- the party who wants to amend presents a
mal costs of litigation. consent formcalled a Stipulation to File
Amended Complaint (or Answer)to all the
other parties in the case. If the other parties
17. Once the lawsuit is underway, can sign the Stipulation, the lawyer for the
my lawyer amend the Complaint? amending party presents it to the court
along with a proposed Order Permitting
Yes. Often, the Plaintiff learns new informa- Filing of Amended Complaint (or Answer)
tion that changes the case after a Complaint and the amended pleading itself. A judge
has been filed. If these new facts point to a will usually sign the order if the parties all
new Defendant, additional legal theories or agree to the amendment.
increased damages, the Complaint should Why would the other parties agree with-
be amended to include them. The contents out a fight to allow an amendment to the
of the Complaint determine what evidence pleadings? If it is early in the lawsuit and
and legal arguments the Plaintiff may the new information does not represent a
present at trialand that determines what a complete reversal of facts or change in
judge or jury may decide in a verdict. A legal theories, a judge would likely allow
Plaintiff may voluntarily file an Amended the amendment. So agreeing to the amend-
Complaint that reflects the new informa- ment saves all the parties from wasting time
tion. It is not uncommon for a Plaintiff to and money fighting it out in court.
do this two or three times over the course If any other party refuses to agree to an
of the litigation. However, once a Defen- amendment, however, a judge will have to
dant has filed an Answer to the Complaint, decide whether to allow it. The amending
the Plaintiff must get a judges permission party must file a legal document called a
to file an Amended Complaint. The Defen- Motion for Order Permitting Amendment to
dant may object, but unless discovery has Complaint (or Answer), accompanied by a
been completed (see Chapter 4) and would Declaration or Affidavit (sworn statement)
have to be repeated because of the by the party or the partys lawyer explain-
Plaintiffs changes, or trial would have to be ing what the new information is, why it is
postponed, a judge usually permits the only now coming to light and what effect it
amendment. might have on the litigation. Any party
GETTING A LAWSUIT STARTED: THE PLEADINGS 3/ 2 1

opposed to the amendment may file its will not allow an amendment. A judge
own documents stating the reasons for its is also less likely to permit an amend-
opposition. (For an explanation of the ment if it would require costly addi-
standard procedure for going to court on a tional legal work by a party who
motion, see Chapter 5, Section I.) cannot afford it, such as an individual
in a lawsuit against a large business
or organization.
19. How does a judge decide whether Fault. A judge is more likely to permit
to allow an amended pleading? an amendment if the failure to include
the new information or legal theory in
In deciding whether to grant permission to the original pleading was not the
file an amended Complaint or Answer, judges amending partys faultfor example,
apply a rather vague-sounding standard: if the party just uncovered the infor-
Would permitting the amendment cause mation during the discovery process.
undue prejudice to the other side? Trans- On the other hand, if the party seek-
lated, this means that the judge considers: ing to add new material should have
Timing. The longer the lawsuit has known about it at the time of the
been going on, the less likely a judge original pleading, a judge may look
is to permit an amendment. As the less kindly on the request to amend.
case approaches trial, less time remains
to investigate and prepare arguments
about new facts or legal issues that an Section II: Defending Against
amended pleading might raise. a Complaint:
Impact. A judge is more likely to per-
mit an amendment that makes only a
Responsive Pleadings
minor change in the Complaint or
Answer than one that changes the Shortly after a Complaint has been delivered
lawsuits direction by adding a whole to a Defendant, the Defendant must reply
new set of facts or entirely new legal by filing legal papers called responsive
theories. Judges particularly disfavor pleadings. There are several sorts of
amendments that would force the responsive pleadings:
parties to do extensive additional in- a flat denial of everything in the
vestigation or repeat time-consuming Complaint
discovery in order to explore the new a partial denial that admits certain facts
matter. If a witness or evidence that a total or partial denial, topped off
would have to be reexamined is no with a claim that Plaintiff or some
longer available, a judge almost surely third partyrather than Defendant
3/22 THE LAWSUIT SURVIVAL GUIDE

is legally responsible for Plaintiffs 20. What is an Answer?


troubles
a contention that the Complaint has The simplest response to a Complaint is
technical flaws called an Answer. An Answer does not
a challenge to the courts authority attempt to stop the lawsuit by challenging
over this particular lawsuit or this the legal sufficiency of the Complaint. In-
Defendant, or stead, an Answer denies the most important
a request that a judge decide the factual allegations and legal theories of the
lawsuit immediately in Defendants Complaint while allowing the litigation to
favor, based on the Complaint alone. move on to the next stage. How thorough
Each type of response is discussed in this and complex an Answer is depends on
Section, including the tactical matters a tactical considerations, and sometimes on
lawyer and client must consider in choosing the rules of the court in which the lawsuit
among them. has been filed. The Answer typically takes
one of the following forms:
General Denial. In some courts, if the
If You Are Served With a Complaint is not verified (see Section I), the
Complaint, Get a Lawyer Now Defendant is permitted to file a one-sentence
Answer that simply denies everything in the
If you are served with a Complaint, you
Complaint. A general denial says something
have only a limited timeusually 20-30
like Defendant denies each and every
days from receiptin which to file a
allegation of the Complaint and each of its
response. Although the Plaintiffs lawyer
Causes of Action, and asks that Plaintiff
might give you extra time to respond
take nothing by his (her) Complaint. By
called an extension of timethere are no
filing a general denial, the Defendant makes
guarantees. There can be serious legal
the Plaintiff wait for discovery (see Chapter
consequences if you fail to file a response
4) to learn the details of Defendants side of
within the allotted time, including the pos-
the story. If a general denial is permitted, it
sibility that the court will order Plaintiff the
is the easiest and least time-consuming type
winner by default. If you have not hired a
of Answer for a lawyer to prepare.
lawyer by the end of your time to respond,
Specific Admissions and Denials. In some
call the attorney representing the Plaintiff
courts, a general denial is not allowed. And a
(this lawyer will be identified in the
general denial is typically not allowed in any
Summons), explain that you do not yet
court if the Plaintiff verified the Complaint.
have a lawyer and ask for an extension of
(See Section I.) Instead, the Defendants law-
time to respond. Then get to a lawyer of
yer must answer, paragraph for paragraph,
your own as soon as possible.
each allegation in the Complaint.
GETTING A LAWSUIT STARTED: THE PLEADINGS 3/ 2 3

How You Can Help Your Lawyer 21. How forthcoming should I be in
Prepare an Answer my Answer?
If you and your lawyer are required to file
only a general denial to the Complaint, your If a Defendant must file an Answer that
lawyer wont need your help to prepare the specifically admits or denies each allegation
Answer. However, you must still give your in the Complaint, extreme caution is the
lawyer a full accounting of all the facts pertain- watchword. A Defendant should admit only
ing to the dispute and copies of all relevant those allegations that state the very obvious
documents, correspondence and other written for example, that Defendant resides in a
materials, so that the lawyer can advise you particular county or that Defendant owned
whether a countersuit is appropriate. (See a certain car on a certain day. Most facts in
Section III, below.) the Complaint are subject to more than one
If you and your lawyer must file specific interpretation. Until a Defendant is certain
admissions and denials in your Answer, you what the implications of an admission
can help your lawyer by: might be, a denial is always the better
Preparing a time-line or narrative course of action.
description of all the important events Some allegations in the Complaint will be
that led to your dispute with the Plaintiff obviously true while others will be flat-out
Carefully reviewing the Complaint. For false, or at least questionable. A Defendant
every fact alleged in the Complaint, write can admit the parts that are obviously true
out for your lawyer your version of that while denying the rest. For example, a para-
fact, explaining why the two versions graph in the Complaint might state that the
differ Defendant owned and operated a business
Admitting to your lawyer those allegations on a certain date and was solely responsible
by Plaintiff that are true. Your lawyer for the safety of persons visiting the
needs to know about any negative facts businesss premises. The Defendant might
as early as possible to begin preparing admit that she owned and operated the
to counter them business (if ownership is not in dispute)
Giving your lawyer every important but deny that she was solely responsible for
document you have correspondence, visitors safety (since the visitor is also partly
business records or photographsthat responsible, as well as the property owner).
relates to the case, and If a Defendant does not yet know whether
Telling your lawyer about any other dis- the facts alleged in a particular paragraph
putes you have with the Plaintiff. Your of the Complaint are true, an Answer may
lawyer may want or need to prepare a simply state that Defendant has insufficient
countersuit for you against the Plaintiff knowledge either to admit or deny that
about these other disputes. (See Section III.) allegation.
3/24 THE LAWSUIT SURVIVAL GUIDE

More Than One Defendant the Defendant is not responsible for the
How Many Lawyers? Plaintiffs damages. Examples of affirmative
defenses include the Statute of Limitations
You might not be the only Defendant
(Plaintiff filed the lawsuit beyond the legal
named in a Complaint. If the other Defen-
time limit), Release and Satisfaction (Plaintiff
dants are very close or related to you, you
is not entitled to any money because defen-
may be able to use the same lawyer and
dant already paid all that was owed) and
file the same responsive pleadings. This
Assumption of Risk (Plaintiff was responsible
could help both of you present a coordi-
for his or her own accidental injuries). In
nated defense and save money. However,
an affirmative defense, a Defendant may
different Defendants usually need different
include facts that the Plaintiff did not
lawyers. Even if you and another Defendant
include in the Complaint.
are mostly on the same side, you may
wind up facing different levels of liability
for Plaintiffs damages. In such a situation,
23. What happens if my responsive
a lawyer might be forced to choose be-
pleadings arent filed in time?
tween admitting blame for one client or
the other. That would be an impermissible
It is not uncommon for a Defendant to fail
conflict of interest for the lawyer and a
to file an Answer or other responsive
bad spot for you. If you learn that the same
pleadings within the time allotted by court
lawyer might be representing you and an-
rules. Some fail to pay attention to time
other Defendant, ask the lawyer as soon as
limits; others are unable to find a lawyer in
possible about conflicts of interest. And be
time. If for any reason a Defendant fails to
prepared for the response that even a close
file a responsive pleading in time, Plaintiffs
friend or partner needs a separate lawyer.
lawyer may take the Defendants Default.
(See Chapter 1, Section I, regarding con-
To take a Default, Plaintiffs lawyer files
flict of interest and choosing a lawyer.)
papers notifying Defendant that if he or she
continues to ignore the lawsuit, Plaintiff
will ask a judge to declare the case over
in legal parlance, to enter a Default Judg-
22. Does an Answer contain mentand award Plaintiff all relief requested
legal arguments? in the Complaint.
If the Defendant has a reasonable excuse
Yes. An Answer is not limited to denials of for not filing a responsive pleading in time
the factual allegations in the Complaint. An illness, failure to receive the Complaint
Answer may also assert specific legal or inability to find a lawyerthe judge
reasons (called affirmative defenses) why usually will not enter a Default Judgment.
GETTING A LAWSUIT STARTED: THE PLEADINGS 3/ 2 5

Instead, the judge will allow the Defendant


You May Want to Move the
to file a late Answer or other responsive
Case to Another Court
pleading. Because judges are usually will-
ing to give Defendants another chance, a When you are served with a Complaint,
Default Judgment is used more as a prod to you may find that the court where it has
get the litigation moving than as a way to been filed is inconveniently located for
win the whole case. However, in certain you or your lawyer. If so, you may be able
kinds of proceedings in which time is to move the lawsuit to a court in a differ-
crucialsuch as unlawful detainer actions ent location, by filing a Motion for Change
that seek to evict a tenantjudges are not of Venue, discussed in Chapter 5, Section IV.
as forgiving of Defaults. In those cases, Sometimes the Plaintiff files a lawsuit in
judges grant extra time only if the excuse is state court, though it could also have been
a particularly good one, and then only filed in federal court. (See Question 5,
grant a very short extension for Defendant Section I.) If your lawyer would be more
to respond. comfortable litigating the case in federal
court or there are technical advantages to
litigating in federal court (the requirement
of a unanimous verdict, for example), your
lawyer might try to move the lawsuit to
federal court using a process known as
removal.

24. What can my lawyer do if the


Complaint doesnt make any valid
legal claims against me?

To win a lawsuit, a Plaintiff must state in


the Complaint and prove in court a set of
facts and a legal theory that establish the
Plaintiffs rights and the Defendants
responsibility for Plaintiffs damages. This
combination of facts and legal theory is
referred to as a legal claim or a claim upon
which relief may be granted.
3/26 THE LAWSUIT SURVIVAL GUIDE

Special Appearance to Complaint might allege that Plaintiff was


Challenge the Courts Authority injured in a fall on the way into Defendants
Over the Defendant store without stating any facts showing that
Defendant was careless or otherwise
By filing any responsive pleading discussed
responsible for the accident. Or, a Complaint
in this Section, a Defendant makes an
might detail all the ways in which a partners
appearance in the case. By appearing, a
mistakes sank a business, but fail to show
Defendant concedes that the court is proper
why that proves anything other than poor
for the lawsuit and has jurisdictionlegal
business judgment. In these situations,
authorityover the Defendant. But what if
Defendants lawyer may ask the judge to
you want to argue that the court has no
throw out the Complaint because of its
jurisdiction over the lawsuit, or over you?
failure to properly or adequately state a
How can you make that argument without
legal claim against the Defendant. This is
appearing and conceding that very juris-
done in a document called a Motion to
diction? Courts permit what is called a
Quash the Complaint, also called a General
special appearance (as distinguished from
Demurrer.
the normal, general appearance), a kind of
legal time-out during which a Defendant
may file papers and appear in court without
automatically giving the court jurisdiction. Going Through the Motions
Most commonly, a special appearance is
Any responsive pleading other than an
made to object to the courts jurisdiction
Answerone that seeks to defeat, delay or
(because the Defendant resides out of state,
alter the Complaint, for example, must be
for example) or to challenge whether
filed in the form of a motion. The term mo-
service of process was properly accom-
tion simply refers to the process of getting
plished. (See Section I.)
a legal question into court so a judge may
make a decision on it. The moving party
the party who wants the court to take
Sometimes a Complainteven if every- some actionmust file legal papers asking
thing it alleges is truesimply does not a judge to grant (approve) the motion. The
state a valid legal claim. The Complaint other sidecalled the opposing party
might contain some technical legal flaw, be may file papers asking the judge to deny
filed in an improper court or fail to present the motion. Motions are discussed in detail
facts that fit any legal theory establishing in Chapter 5, Section I.
Defendants responsibility. For example, a
GETTING A LAWSUIT STARTED: THE PLEADINGS 3/ 2 7

25. If the judge rules that the Complaint actually win the case for the Defendant, or
doesnt state a legal claim against at least put the Plaintiff in such a difficult
me, what happens next? position that the Defendant will be able to
settle the case quickly and advantageously.
Even if there is a solid legal basis for filing This can happen when the problem with
a Motion to Quash or a Demurrer, it is not the initial Complaint is not easily fixed,
always worth the trouble. Even if the raising the possibility that an Amended
Complaint is thrown out, a judge is likely to Complaint would not fare any better than
give the Plaintiff another chance to get it the first one.
right by filing a new version, called an
Amended Complaint. (See Section I.) If the
Plaintiff amends the Complaint, the Defen- 26. Can my lawyer object only to
dant has to start again by filing an Answer certain parts of the Complaint?
or another responsive pleading. Months
might go by before the lawsuit really gets Yes. Often, a Complaint states one or more
going. And if the Defendants attorney is valid claims against the Defendant but also
paid by the hour, the Defendant might end contains extra matter that the Defendant
up spending a lot of money on this process would prefer to keep out of the lawsuit.
without getting any significant benefit. For example, a Complaint might include
In a few circumstances, however, a Motion irrelevant personal matters that the Defendant
to Quash or General Demurrer might does not want dissected and discussed. The
Plaintiff might include a claim that is clearly
unsupported by the facts alleged, which
would be good to knock out of the lawsuit
early so that the Defendants lawyer doesnt
have to spend time and energy contesting
it. Or, a Complaint might request certain
relieffor example, punitive damages
that is not legally allowed for Plaintiffs
claims. In any of these situations, the
Defendants lawyer may file a Motion to
Strike, also called a Special Demurrer. This
procedure does not claim that the entire
Complaint is invalid or that it fails to state a
cause of action. Instead, it merely asks a
judge to delete certain parts of the
Complaint.
3/28 THE LAWSUIT SURVIVAL GUIDE

Motion for More 27. Can I have the Plaintiffs whole


Definitive Statement case against me tossed out of court
at the outset?
If a Complaint has vague or ambiguous
language, or skimps in its factual descrip- Sometimes a Complaint includes facts that
tions, some courts allow Defendants would prevent the Plaintiff from winning a
lawyer to file a Motion for More Definitive court case against the Defendant. If so, the
Statement. This motion does not challenge Defendants lawyer may file a Motion to
the Complaints validity but merely asks a Dismiss, or Motion for Judgment on the
judge to order the Plaintiff to make it more Pleadings, which argues that even if every-
precise. Is this a worthwhile use of your thing in the Complaint is true, the Plaintiff
lawyers time? Usually not. Complaints are still cannot hold the Defendant legally
not required to be complete or terribly responsible. Unlike a Motion to Quash or a
preciseso even if it is granted, such a General Demurrer, if a judge grants a Motion
motion probably wont accomplish much. to Dismiss, Plaintiff is generally not given
Besides, your lawyer has the rest of the another opportunity to file an improved
litigation to pin down the Plaintiffs facts. Complaint.
On occasion, however, your lawyer might This kind of motion is most often used to
file such a motion to force the Plaintiff to raise some technical legal matter. For
reveal something early on about the direc- example, Defendant might argue that the
tion of Plaintiffs case. Your lawyer may events described in the Complaint occurred
want to find out precisely what Plaintiff outside the appropriate Statute of Limitations
knows or is complaining about. The (the legal time limit), or that Plaintiff failed
Complaint might even be so vague that to take some step legally required before a
your lawyer cant respond properlyor Complaint may be filed. If the Defendants
even figure out what dispute underlies the lawyer thinks there is a legitimate shot at
lawsuit. In these situations, filing a motion winning this kind of motion, it is probably
makes sense. The procedure will probably worth a tryif Defendant wins, the lawsuit
only cause a minor delay in the case and would be over. Because this kind of motion
may provide your lawyer with a bit of use- often depends on a single technical legal
ful early information. question, it is often fairly simple for a
lawyer to prepare. Some courts require
Defendant to file an Answer at the same
time; this avoids delay if the Defendants
Motion to Dismiss is denied.
GETTING A LAWSUIT STARTED: THE PLEADINGS 3/ 2 9

Section III: The Defendant Strikes The Countersuit Name Game


Back: Countersuits
Depending on the parties sued and the
A person who is sued can do more than court system, a countersuit might be called
just defend against the action. Defendant a Cross-Complaint, Cross-Claim, Counter-
may also file a countersuit against anyone claim, Third Party Claim or Impleader. In
the Defendant thinks is responsible for the some courts, all countersuits are called
dispute, or for related problems. Defendant Cross-Complaints, whether filed against a
can file a countersuit against the Plaintiff, Plaintiff, Co-Defendant or third party. In
against Co-Defendants in the Plaintiffs other court systems, a countersuit against
original Complaint or against third parties the Plaintiff is called a Counterclaim,
whom the Plaintiff has not sued. A Defen- while a countersuit against a Co-Defendant
dant may also bring up other legal gripes or a third party is called a Cross-Claim.
against the Plaintiff, even if they have And in federal court, countersuits against
nothing to do with the problems described third parties are called Impleaders.
in the Plaintiffs Complaint.
A countersuit is treated, legally, as a
completely new Complaint. A Defendant
who files a countersuit not only remains a 28. When can a Defendant file
Defendant in the original Complaint, but a countersuit?
also becomes a type of Plaintiff called a
Cross-Plaintiff, Cross-Complainant or a A countersuit is usually filed at the same
Counter-Claimant. And whoever is sued in time that the Defendant files an Answer. If
the countersuitincluding the original the Defendant has already filed an Answer
Plaintiff becomes a Cross-Defendant or but later decides to file a countersuit, the
Counter-Defendant. If a countersuit is filed, Defendant will probably need a judges
it becomes connected to the original Com- permission.
plaint. From that point on, all proceedings,
including trial, will include both the origi- How You Can Help Your Lawyer
nal suit and the countersuit, and all facts Prepare a Countersuit
developed in the litigation may be used to A countersuit may serve several purposes. It
prove or disprove either case, as if it were can put extra pressure on the Plaintiff to settle
all one big lawsuit. or drop the original Complaint. It allows you
to raise negative facts about the Plaintiff that
otherwise would not have come up in the
lawsuit. It might give you a convenient oppor-
tunity to get a different dispute into court
3/30 THE LAWSUIT SURVIVAL GUIDE

without having to initiate a new lawsuit. And rate, unrelated countersuit against the Plain-
in some circumstances, it provides your only tiff does not mean the Defendant must join
chance to have a court decide a related it to Plaintiffs lawsuit. If the subject is unre-
dispute you have with the Plaintiff. (See lated to the Plaintiffs Complaint, Defendant
Question 30, below.) may choose to file a separate lawsuit.
In order for your lawyer to know whether a A Defendant is also permittedbut not
countersuit should or must be filed for you, requiredto file a countersuit against a Co-
you have to provide information to the lawyer Defendant or a third party. But a countersuit
well beyond responding to whats included in against anyone other than the Plaintiff may
the Complaint. You must discuss with your only include claims related to the disputes
lawyer all other disputes you have with the described in the Plaintiffs original Complaint.
Plaintiff, whether or not they are directly For example, a plumber may be named as
related to the dispute described in the Com- a Defendant in a dispute with a homeowner
plaint. For each of these disputes, you must over plumbing repairs. The plumber would
present information to your lawyer exactly as be permitted to countersue against the
if you were a Plaintiff and your lawyer were general contractor for any matters pertaining
preparing a Complaint. (See Section I.) to this homeowners project, but would not
be allowed to countersue the contractor for
problems with different construction projects.
29. What kinds of claims can I raise in For those, the plumber would have to file a
a countersuit, and against whom? separate lawsuit.

In a countersuit, a Defendant may raise any


claims against the Plaintiff regardless of Anyone Who Is Countersued Must
whether they are related to the dispute de- Act Like a Defendant
scribed in the Plaintiffs original Complaint.
If you are a Plaintiff or a Co-Defendant in
This encourages people who are already in
a lawsuit and you are served with a counter-
court to hash out all the different problems
suit by a Defendant, you become what is
they have with each other in one legal
called a Cross-Defendant in that counter-
action, rather than wasting court time with
suit. You must file a responsive pleading to
separate lawsuits. For example, if the
that countersuit just as if you had been
Plaintiffs Complaint charges a neighbor with
named as a Defendant in a separate law-
destroying a fence on their property line,
suit. You may use any of the responsive
the Defendant may countersue to complain
pleadings available to any Defendant in an
that the Plaintiffs tree roots are undermin-
original lawsuit. (Responsive pleadings are
ing the Defendants foundation. However,
described in Section II.)
the fact that a Defendant may file a sepa-
GETTING A LAWSUIT STARTED: THE PLEADINGS 3/ 3 1

30. Are there some issues that I must Countersuits and Contingency
raise in a countersuit? Fees Dont Mix
If you are a Plaintiff who has retained your
Yes. If a Defendant has a claim against the
lawyer on a contingency fee basis and you
Plaintiff that is related to the dispute raised
now find yourself named as a Defendant in
in the Plaintiffs original lawsuit, the Defen-
a countersuit, your contingency fee agree-
dant must include that claim in a countersuit
ment probably does not cover your defense
or forever lose the right to bring it to court.
to the countersuit. Your lawyer took your
A Defendant may not wait to file a separate
original case assuming that the contingency
lawsuit against the Plaintiff concerning the
fee would pay for the work of pursuing
same dispute. Because of this rule about
your lawsuit; that fee was not calculated to
related claims, Defendant must tell his or
include the extra work of defending you
her lawyer about all possible claims against
against your own potential losses.
the Plaintiff. A Defendant should be sure to
If you find yourself in this position, you
describe anything the Plaintiff might owe
will have to work out a separate defense
the Defendant, and any damages Defendant
arrangement with a lawyer. You can usually
may have suffered because of the Plaintiffs
negotiate a separate hourly fee arrangement
conduct. The lawyer can then determine
for your lawyer to defend you in the
whether these matters are legally related
countersuit. If you have insurance cover-
to the dispute described in the Plaintiffs
age, your insurance company may pay your
Complaint, and therefore must be raised in
lawyer on an hourly basis to defend you.
a countersuit.
Or, the insurance company may provide
and pay for a separate lawyer to defend
your countersuit. (Contingency fees, insur-
ance payment for lawyers and hourly fee
arrangements are discussed in Chapter 1.)

Section IV: Litigating on


Behalf of a Minor:
Guardian ad Litem

Sometimes, a child is directly involved in


events that result in a lawsuit. For example,
3/32 THE LAWSUIT SURVIVAL GUIDE

a child may cause, or be injured in, an acci- A legal guardian, grandparent or other
dent. In such lawsuits, the interests of the responsible adult may also serve. If some-
child must be represented. But in most one other than a parent with legal custody
states, a minorusually, a child under age applies to serve as Guardian ad litem, or if
18does not have the right to sue or be one parent applies but the other objects,
sued. Courts deal with this gap in the law the judge may select the parent, or other
by appointing someone to stand in for the adult, the judge believes would best serve
child for purposes of the lawsuit. The the childs interests.
stand-in is called a Guardian ad litem (for
the lawsuit).
Your Child Might Need a
Separate Lawyer
31. What is a Guardian ad litem?
If you and your child have both been
injuredfor example, in a car accident
The position of Guardian ad litem is much
by the actions of a third party, your child
more limited and temporary than that of a
might need to have someone other than
full legal guardian. A Guardian ad litem is
you serve as Guardian ad litem. In some
permitted to make decisions for the child
circumstances you might also need sepa-
regarding the lawsuit only, for as long as
rate lawyers. This might become necessary
the lawsuit continues. Even this authority is
if the Defendant has insufficient resources
limited, because two of the most important
(such as insurance coverage) to pay both
decisions about the lawsuitthe childs
of you what you fairly deserve. A lawyer
lawyers fee and the amount of any settle-
who represented both of you in this situa-
mentmust be approved by a judge.
tion would be in an impossible spot: more
money for one client means less for the
other, yet the lawyer must represent the
32. Who can be appointed Guardian
interests of both. This kind of conflict
ad litem?
might require that either you or your child
get another lawyer. Because you would
Normally, a parent is appointed Guardian
have this same conflict of interest, you
ad litem. Either parent, or both, may be
would not be the proper person to serve as
appointed. In the case of divorced or
Guardian ad litem.
separated parents, the parent who has legal
The problem of a lawyers conflict of
custody of the child is usually appointed
interest is discussed in Chapter 1, Section
Guardian ad litem, but if both parents
I.
agree, either parent may serve in the role.
GETTING A LAWSUIT STARTED: THE PLEADINGS 3/ 3 3

33. How is a Guardian ad litem requiring that any award or settlement


appointed? be spent only for specific purposes
(such as the childs health or education)
If a child needs to be represented in a law- except with prior approval of the
suit, a lawyer for the parent or other adult court.
files a Petition for Appointment of Guard- Once a parent or other adult has been
ian ad litem. This document asks the court appointed, the Guardian is authorized to
to appoint a parent or other adult as the hire a lawyer to represent the child, sign all
childs representative for the lawsuit. This lawsuit papers pertaining to the child,
Petition is filed immediately before, or at direct the childs lawyer regarding conduct
the same time as, the other initial papers in of the litigation and make all decisions
the lawsuitthe Complaint, if the child is relating to the childs position in the lawsuit
suing (see Section I), or the Answer or (except those specific decisions that a judge
other responsive pleading, if the child is must first approve).
being sued (see Section II).

The Court Keeps an Eye on a


34. What are the terms of a Guardian Childs Attorney Fees
ad litems appointment?
After the appointment of a Guardian ad
litem, the lawyer chosen to represent the
A judge spells out the terms of appointment
child may have to ask the court to approve
in a document called an Order Appointing
the lawyers fee. Most states have laws re-
Guardian ad Litem. It names the Guardian
stricting the amount a lawyer can charge
and sets the specific conditions of the ap-
to represent a minor. Other states have no
pointment, which may include:
actual law but do have customarily lower
ongoing court review at certain stages
fees for representing minors. In contin-
of the proceedings
gency fee cases, for example, the lawyers
court approval of payment terms to
fee to represent a minor is usually 25% of
the childs lawyer
the recovery, rather than the normal 33%
court approval of any final settlement
for an adult. In hourly fee cases, the courts
of the case
may have a prevailing rate that is the
placing lawsuit money obtained for
maximum they will approve for a child.
the child in a special bank account
until the child turns 18, and/or

Chapter 4

Discovery

Section I: An Overview of Discovery ......................................................................... 4/4


1. What kinds of information can a party obtain through discovery? ........ 4/4
2. What is an interrogatory? ...................................................................... 4/6
3. What is a request for production? ......................................................... 4/6
4. What is a request for admissions? ......................................................... 4/6
5. What is a deposition? ........................................................................... 4/6
6. Are there other discovery procedures? .................................................. 4/6
7. When does discovery start and how long does it last? .......................... 4/7
8. Do the parties have to turn over some types of information
without using a formal discovery procedure? ....................................... 4/7
9. Whats the point of all these discovery maneuvers? .............................. 4/7
Section II: Interrogatories ............................................................................................ 4/9
10. To whom may interrogatories be sent? .................................................. 4/9
11. What kinds of information do interrogatories typically seek? ............. 4/10
12. Who decides what interrogatories to ask the other side? .................... 4/10
13. Do I personally answer interrogatories received from
the other side? .................................................................................... 4/11
14. Do I have to answer every interrogatory? ........................................... 4/13
15. How are interrogatories typically used in litigation? ........................... 4/13
16. When do lawyers send interrogatories? .............................................. 4/14
17. How long does a party have to respond to interrogatories? ................ 4/14
18. What happens if I cant respond to the interrogatories in time? .......... 4/14
19. How many interrogatories can be asked? ........................................... 4/15
20. What happens if one party doesnt think the other has
answered interrogatories properly? ..................................................... 4/15
4/2 THE LAWSUIT SURVIVAL GUIDE

21. What happens if I come across new or different information


after my responses have been sent to the other side? .......................... 4/15
Section III: Requests for Production of Documents and Physical Evidence ................. 4/16
22. What kinds of things can I include in a request for production
or inspection? ..................................................................................... 4/17
23. Whose documents and property can I inspect? .................................. 4/17
24. Can I obtain documents or inspect property under the
control of a non-party? ....................................................................... 4/17
25. Can I fight a request to produce or inspect? ........................................ 4/18
26. Who pays for the production of documents or testing? ....................... 4/19
27. Is a party always required to actually produce physical objects? ........ 4/20
28. How long do I have to gather the documents the other
side has requested? ............................................................................. 4/20
29. Can the other side inspect my medical records? ................................. 4/21
30. Can I be forced to submit to a medical examination? ......................... 4/21
31. Can I challenge a request for an Independent Medical Examination? ... 4/22
32. If I am ordered to attend an IME, what preparations should I make? .. 4/22
Section IV: Requests for Admissions ........................................................................... 4/24
33. What types of issues do requests for admissions resolve? ................... 4/24
34. What is the effect of a partys admission? ........................................... 4/25
35. Can I take back an admission? ............................................................ 4/26
36. How should I respond if I am asked to admit something
that is partly true and partly false, or is unclear? ................................. 4/26
37. What if I dont know how to answer a request for admissions? .......... 4/27
Section V: Depositions .............................................................................................. 4/27
38. What is a deposition? ......................................................................... 4/27
39. Who attends a deposition? ................................................................. 4/29
40. How does a deposition proceed? ....................................................... 4/30
41. Do lawyers object to deposition questions the same way
they do in court? ................................................................................ 4/31
42. What happens when a lawyer objects to a question? ......................... 4/32
43. How and when do depositions get scheduled? ................................... 4/33
44. How is deposition testimony used? .................................................... 4/34
45. Must a deposition always be face-to-face? .......................................... 4/35
46. Do I have any control over the scheduling of my own deposition? ..... 4/36
47. How important is my own deposition? ............................................... 4/36
DISCOVERY 4/ 3

Section VI: Discovery Limits ....................................................................................... 4/38


48. Do I have to reveal my personal or business finances? ....................... 4/39
49. Can I keep my private communications confidential? ........................ 4/41
50. How far into my private life is the other side allowed to pry? ............. 4/43
51. What should I do if the other side tries to obtain
private information? ............................................................................ 4/43
52. How do discovery disputes over privacy get resolved? ....................... 4/44
53. Does the right against self-incrimination apply in a civil case? ........... 4/45
54. Can my lawyer object if the other sides discovery requests
ask for too much information? ............................................................ 4/45

How You Can Help Your Lawyer

Answer Interrogatories ............................................................................ 4/12


Prepare a Request for Productionof Documents ..................................... 4/16
Respond to A Request for Production ..................................................... 4/19
Answer a Request for Admissions ........................................................... 4/25
With Depositions .................................................................................... 4/29
By Preparing for Your Own Deposition ................................................... 4/37
4/4 THE LAWSUIT SURVIVAL GUIDE

D
iscovery is a set of legal procedures Discovery Rules Vary From
that a party may use to get lawsuit- Court to Court
related information from another
Every jurisdiction makes its own rules
party or from people and businesses that
governing discovery. Federal court has its
are not parties to the lawsuit. A party may
own set of rules, as does each state. On
ask not only for facts but also for the
top of that, individual courtseach federal
identity of others who may know some-
district and each county or other division
thing about the case, for documents that
of state courtfrequently add their own
pertain to the case and for examination of
local discovery rules. Despite these sepa-
physical objects and property connected to
rate rules, the major discovery procedures
the dispute. The scope of discoverythe
addressed in this chapter operate in essen-
kind of information that a party can force
tially the same way from court to court.
someone to revealis extremely broad,
Because details sometimes vary, however,
though there are some limits. For the most
from time to time you may read that in
part, discovery takes place outside the
certain courts or in some jurisdictions
courtroom, with lawyers and parties
a rule is slightly different.
exchanging written information and sitting
through face-to-face questioning sessions.
However, lawyers sometimes must file
motions asking the court to resolve disputes
about discovery. Discovery motions are 1. What kinds of information can a
discussed in Chapter 5, Section VII. party obtain through discovery?

The basic rule of discovery is that a party


Section I: An Overview of may obtain any information that pertains
Discovery even slightlyto any issue in the lawsuit,
as long as the material sought is not legally
This section describes generally what privileged or otherwise protected. (Privi-
lawyers are seeking in the discovery process, leges and other limits on discovery are
the various procedures available and how explained in Section VI.) In discovery, a
each is used to elicit different kinds of in- lawyer can even request information that
formation. After this section, each discovery might not be admissible at trial, as long as
device is discussed in detail (Sections II it relates to an issue in dispute. The infor-
through V), followed by an explanation of mation sought during discovery need only
the limits placed on discovery (Section VI). tend to lead to admissible evidence. For
example, it is common to ask in discovery
about what was said in a conversation,
DISCOVERY 4/ 5

even though the information would probably the identity of anyone who might
not be admissible in court because repeating know something about the dispute or
what someone said is usually considered the damages suffered by either party
hearsay. a detailed description of the way a
Because of the great latitude regarding business or other organization regu-
what is discoverable (what may be larly conducts itself
obtained in discovery), lawyers regularly almost any document generated by or
ask for: in the possession of an individual or
anything a witness has seen, heard or business if it pertains at all to the
done in connection with the dispute dispute, and
or the parties to the dispute a witnesss personal and business
what anyone has said at a particular history (with deeper background
time and place, or at any time about a probing permitted about a party than
certain subject about a non-party witness).

Discovery Can Get Very Personal

You are likely to be surprised and distressed claims emotional injury, your mind be-
by the detailed questions the other side can comes a fair subject of inquiryrecords of
properly ask during discovery. Your personal psychological treatment are opened to the
background, education, domestic arrange- other side and your treating therapist may
ments and entire work history may all be be subjected to direct questioning about
fair subjects for inquiry. If a lawsuit involves your entire emotional history.
a business, most of that businesss records However, there are some limits on the
may be subject to review and the people kinds of probing a lawsuit opponent can do.
who operate the business may be quizzed in They are discussed in detail in Section VI of
great detail about how the business was run. this chapter. As a client, you can help
If your a lawsuit claims a personal injury, protect yourself by becoming familiar with
your medical records will be scrutinized by these limits and alerting your lawyer when
the other side and you will be subjected to you believe certain information sought by
extraordinarily close questioning about your the other side goes too far. But you must
injuries and their effect on your work and also recognize that the lawsuit will include
personal life. You may even have to undergo discovery that you will find uncomfortable
a physical examination by a doctor chosen or irritatingand there may be little you or
by the Defendant. And if your lawsuit your lawyer can do to prevent it.
4/6 THE LAWSUIT SURVIVAL GUIDE

2. What is an interrogatory? 5. What is a deposition?

Interrogatories are written questions asked A deposition is the face-to-face questioning


by one party to another. They must be an- of a witnessa party to the lawsuit or any-
swered under oath. The responses become one elseby the lawyers in a case. Any
part of a partys sworn testimony about the party may initiate a deposition. Lawyers for
case and might be used as evidence in all parties have a right to attend the deposi-
court, including trial. (Interrogatories are tion and to pose questions to the person
discussed in detail in Section II.) being deposed (called the deponent). The
questioning usually takes place in the office
of the lawyer who is taking the deposition,
3. What is a request for production? not in a court. The answers of the deponent
are given under oath and recorded for later
In a request for production, one party asks possible use as evidence. (Depositions are
another for physical evidence relating to discussed in Section V.)
the lawsuit, usually documents that pertain
to the case. These are most often business
records, but they might also be personal 6. Are there other discovery
documents such as appointment books and procedures?
letters. Requests for production may also
ask to inspect, and sometimes test, physical In addition to interrogatories, requests for
objects and property. (Requests for pro- production, requests for admissions and
duction are discussed in detail in Section depositions, there are a few other discovery
III.) procedures in common use. For instance,
documents can be obtained from people or
organizations who are not parties to a law-
4. What is a request for admissions? suit by use of a subpoena duces tecum or a
deposition subpoena. If questions about a
Using a request for admissions, a party may litigants physical condition are part of the
ask another party to admit, under oath, that lawsuitsuch as in a personal injury case
a certain fact is true or that a document is one side may request that the other party
genuine. An admission can save both par- undergo a physical examination by a
ties from spending time and money trying doctor selected by the requesting party.
to prove or refute an obvious, specific fact. This procedure is called a request for
(Requests for admissions are discussed in independent medical examination (IME).
Section IV.) (Discovery subpoenas and requests for an
DISCOVERY 4/ 7

IME are discussed in Section III, along with its first responsive legal papers in the case.
requests for production.) Depending on the court, the parties may be
required to exchange some or all of the
following information:
7. When does discovery start and how names, addresses and phone numbers
long does it last? of witnessescalled occurrence
witnesses or percipient witnesses
Generally, a party may begin discovery as who are likely to have direct informa-
soon as that party formally becomes part of tion about disputed facts
the lawsuit by filing, or being served with, copies, descriptions or locations of
a Complaint. (See Chapter 3). However, crucial documents or physical objects
some states impose a ten to 30-day waiting in the possession or control of a party
period at the beginning of the case before an estimate and calculation of the
discovery may begin. Some courts also monetary damages either side claims,
prohibit the Plaintiff from starting discovery and
during a waiting period at the beginning of copies of any insurance policies or
a case, unless and until the Defendant does. agreements that might cover damages
Once underway, discovery continues until a awarded in the lawsuit.
cut-off date set by law or by a judge over-
seeing the case. This date usually falls about
30 days before trial or arbitration. 9. Whats the point of all these
discovery maneuvers?

8. Do the parties have to turn over Discovery can be an exhaustiveand


some types of information without exhaustingexamination of every conceiv-
using a formal discovery procedure? able detail related to a case. At times, a
client may wonder if all this searching for
Yes. To cut the time and cost of discovery, and arguing over details is worth it. But
a few courts (including all federal courts) discovery plays a crucial role in any law-
require the parties to exchange basic infor- suit: it allows a party to gather the facts that
mation at the very beginning of a lawsuit. will prove his or her case. As long as a
This eliminates the need for the other side lawyers efforts seem to pursue one or
to request it through one of the formal more of the following goalsand have not
discovery devices discussed in this chapter. been reduced to petty arguing with the
Called automatic disclosure or mandatory opposing lawyersa client should support
disclosure, this process usually occurs the lawyers thorough use of discoverys
within 90 days after the Defendant has filed varied tools:
4/8 THE LAWSUIT SURVIVAL GUIDE

Uncovering all the facts. The most tradictory answers to crucial questions.
basic discovery task is to uncover the If so, those contradictions can be
facts of the dispute underlying the used against the party when the case
lawsuit and to establish crucial, per- goes to arbitration or trial and in
haps previously unknown facts that attempts to reach a settlement. It is a
might determine its outcome. For lawyers and clients job throughout
example, a Plaintiff who learns that a the discovery process not only to
warped stair was built 30 years ago uncover these contradictions, but also
and has never been checked for dam- to avoid making any conflicting state-
age will have an easier time showing ments that the other side can use.
that the building owner was at fault Preserving information. It takes months
for Plaintiffs fall. On the other hand, or years for a case to go to trial. Dur-
the building owner might have a ing that time, evidence may become
stronger case after learning that the unavailable. Witnesses may die, dis-
Plaintiff was carrying packages and appear, forget or move beyond the
not holding onto the railing when the reach of the court. Physical evidence
fall occurred. may be lost or destroyed. Once evi-
Pinning down information. Discovery dence is pinned down in discovery,
permits each side to establish a fact however, it can be used at trial no
for example, that a cars headlights matter how long the case takes to get
were offonce and for all. This there.
prevents people from changing their Examining and testing physical evidence.
stories later on, once they realize that Some cases turn on the exact dimen-
a different answer would be more sions, composition or condition of a
advantageous or they have been physical object: the strength of a
influenced by other peoples state- beam; the workings of a cars brakes;
ments. the extent of damage to someones
Finding holes in the other sides story. knee; or the soundness of a buildings
One of the main tasks in discovery is foundation. Discovery provides an
to find contradictions in the other orderly processno need to sneak
sides story. Because there are many around in the dark with hidden
forms of discovery, the same informa- camerasby which one side may
tion can be sought several times in examine an object that someone else
several different ways. A party who controls.
doesnt really know what happened Establishing a witnesss background.
or who knows but is not telling the Many questions asked in discovery
truthmight wind up providing con- seek information about a partys or
DISCOVERY 4/ 9

other witnesss personal history, ment agency is legally immune (can-


education and work experience. This not be sued) for the type of injury
sort of probing may sometimes seem claimed.
to go well beyond what pertains to Opening the door to settlement. At the
the lawsuit. But the courts permit some beginning of a lawsuit, the parties may
inquiry into personal background in be far apart in their perceptions of
order to place each witnessand what occurred and what a fair outcome
therefore the witnesss testimonyin would be. (Ill sue em for all theyre
context. For example, a partys level worth! versus Theyll never see a
of education might help explain how penny!) Once facts have emerged in
well the party understood technical discovery, however, these positions
legal requirements. Or, an employees may shift considerably. Evidence may
lack of training or experience operat- alter the parties original ideas of what
ing heavy equipment might be happened, and therefore of what a
important in determining whether an fair resolution would be. Or, a party
employer was legally careless in put- may realize that its version of events
ting the employee behind the wheel simply cannot be proved. Such doses
of a forklift. of reality frequently lead to settle-
Identifying or eliminating parties. Some- ment.
times discovery shows that someone
other than a party in the lawsuit is
legally responsible for what happened. Section II: Interrogatories
If so, that person or organization can
be added to the lawsuit as a party. This section explains interrogatories: writ-
Sometimes, an original party turns out ten questions that the lawyer for one party
to be blameless. That party can then prepares and sends to the other party to
be released from the case, which answer, under oath.
simplifies matters for the parties that
remain.
Establishing liability or absolute defense. 10. To whom may interrogatories
Sometimes discovery brings out facts be sent?
that stop a lawsuit dead in its tracks.
For example, discovery might show Interrogatories may be sent only to an
that crucial events occurred beyond actual party in a lawsuit, either Plaintiff or
the legal time limitthe Statute of Defendant. They may not be sent to some-
Limitationsfor filing a lawsuit. Or, one who is not officially a party, regardless
discovery might show that a govern- of that persons connection to the dispute.
4/10 THE LAWSUIT SURVIVAL GUIDE

For example, interrogatories may be sent to know what sorts of documents the
a business that is suing or being sued. But other party possesses. Interrogatories
they may not be sent to individual owners can be used to obtain this information.
or employees of the business, regardless of The documents may then be obtained
how much they know about the dispute, through a request to produce. (See
unless they are named as parties to the Section III, below.)
lawsuit. What the other side contends. Inter-
rogatories may be used to learn pre-
cisely what one side in the lawsuit
11. What kinds of information do contends the other side has done. For
interrogatories typically seek? example, in a car accident case, one
of these contention interrogatories
Interrogatories may ask for a wide range of might ask whether one party contends
information, including: that the other party failed to signal
A partys background. Many interroga- before making a turn. In a case for
tories are directed at the personal, breach of contract, an interrogatory
business or corporate history of a might ask whether one party contends
litigant. Discovery rules permit a party the other side failed to perform
to delve broadly into the background certain work or performed work im-
of opposing parties, including resi- properly. Contention interrogatories
dences, educational history, work may also ask for the basis of a partys
experience and financial status of beliefsthe specific facts upon which
individual parties, and the organiza- a party relies in making such conten-
tional structure and identity of officers tions.
of businesses or other organizations.
Facts of the case. Interrogatories may
ask for a partys version of the facts 12. Who decides what interrogatories
what happened, when, who did and to ask the other side?
said whatas well as the identity of
anyone with information about what Drafting interrogatoriesdeciding what
happened. information to seek and how to phrase the
Identification of documents. The other questionsusually requires the training and
sides documents can provide infor- experience of a lawyer. A client may be
mation about witnesses, admissions of able to help by giving the lawyer a descrip-
wrongdoing and a wealth of other tion not only of the facts of the dispute but
evidence crucial to a lawsuits success. also of the background and business
But early in the case, a lawyer wont practices of the opposing side.
DISCOVERY 4/ 1 1

Some Interrogatories Are Standard, 13. Do I personally answer


Some Are Specially Devised interrogatories received from
the other side?
Interrogatories that ask for the opposing
partys personal and business background
It is the party, not the partys lawyer, who
are virtually the same for every case. Instead
must answer interrogatories under oath. But
of recreating these interrogatories for each
good lawyers help their clients answer in-
lawsuit, a lawyer usually just copies
terrogatories. Although the information
standardized versionsknown as form
must come from the client, the lawyer can
interrogatoriesout of a legal handbook.
help the client understand how much or
The same goes for the basic interrogatories
how little information needs to be pro-
in any particular type of lawsuit; for example,
vided. The lawyer may also suggest ways
there are some form interrogatories for
of saying things that are accurate but avoid
every contract case, every employment case
broad or unnecessary statements that might
and every car accident case. Choosing these
harm the clients case or reveal private or
standard interrogatories takes little time. In
otherwise confidential information.
fact, a paralegal may do it rather than the
When a lawyer receives interrogatories
lawyerwhich will save you legal fees if
for the client to answer, the lawyer should
you are paying your lawyer by the hour.
first determine which questions need not
Although some interrogatories may be
be answered at all. Then the lawyer usually
standard, many others will have to be spe-
asks the client to prepare rough draft an-
cially formulated to fit the particular facts
swers to the remaining questions. The law-
of your case. Your lawyer must devise
yer might discuss the questions with the
these questions carefully so that the other
client before the client prepares the rough
party cannot use some clever loophole to
draft. But the lawyer will certainly go over
avoid disclosing important information.
the answers with the client before they are
The careful crafting of interrogatories takes
put in final form and returned to the other
skill and a certain amount of time. If you
side. Because slight differences in wording
are paying hourly legal fees, you should
might later prove significant, it is important
understand that your lawyer probably had
for a client and lawyer to carefully review
to individually draft many of the interroga-
answers to interrogatories before the client
tories for your caseeven though they
swears that they are accurate and sends
may sound simple or obvious. If it seems
them to the other side.
that you have been billed many hours for
relatively few interrogatories, ask your
lawyer how many of them had to be
specially fashioned for your case and why.
4/12 THE LAWSUIT SURVIVAL GUIDE

How You Can Help Your Lawyer as completely as you can the first time
Answer Interrogatories around.
Answering interrogatories is a joint effort Be brief. The flip side of answering fully
between you and your lawyer. Before you is to use as few words as possible.
begin, your lawyer must determine whether Writing long answers, or giving more
you have to answer every interrogatory. And information than necessary, might harm
your lawyer must carefully review your an- your case. You may inadvertently give
swers to make sure you have not said more to the other side more facts than they
the other side than you need to. (See Question requested, revealing information that
13, above.) they would otherwise not have known.
But much of the responsibility for answering Alert your lawyer. Sometimes, your
interrogatories falls squarely on your shoulders. lawyer does not realize that a particular
Here are some steps you can take to do the interrogatory asks you to reveal confi-
best possible job: dential or extremely personal informa-
Do your homework. You are required to tion. If this happens, you should bring
answer interrogatories with more than the matter to your lawyers attention
just what you can remember at the before attempting to answer the ques-
moment. You must search your personal tion. The lawyer can then determine if
or business records for the information the information might be protected by a
requested, though you are not required legal privilege or privacy right. (See
to check sources beyond your own Question 14 and Section VI.) Then you
records. If you are replying on behalf of and your lawyer together can decide the
a business or organization, you must ask best way to approach the problem.
other officers and employees what they Try out different answers on your
know about the particular subject. (This lawyer. There are often several ways to
kind of thorough searching can also be answer an interrogatory. This may be
very useful to you. It can help your simply a matter of wording. Or, it might
lawyer prepare the case and prevent involve different interpretations of what
information from surfacing by surprise the question asks or what needs to be
later on. If you are paying your lawyer included in the answer. If you have
by the hour, doing your own thorough doubts about a question or your answer,
searching might also cut down on fees.) discuss it with your lawyer before
Give complete answers. You must putting an answer in final form. This
answer questions fully. If the other side may include writing out rough drafts of
believes that your answers are incom- different proposed answers and asking
plete, they might ask the court to order your lawyer which one works best for
you to amend your answers. To avoid your case while still properly respond-
this expensive hassle, answer questions ing to the question.
DISCOVERY 4/ 1 3

14. Do I have to answer every job to interpose an objection rather than


interrogatory? having the client provide an answer.

No. Some interrogatories legally need not


be answered. This is one reason why a 15. How are interrogatories typically
lawyer should review the questions before used in litigation?
the client begins working on responses. The
lawyer can then tell the client not to bother The partys signed interrogatory responses
answering certain improper questions. become part of the partys sworn testimony
Instead, the lawyer writes down objections in the case. They may be used as evidence
to those questions, including the legal basis when either party asks a judge to decide
for refusing to answer, and sends the objec- important issueseven the entire case
tionsalong with the answers to proper before trial. (See Chapter 5, Sections VIII.)
questionsto the other side. The answers may also be used to support
A lawyer will object to interrogatories or contradict other statements the party
that improperly seek information. An makes, including statements the party later
interrogatory is objectionable if it asks for: makes at arbitration or trial.
private, privileged or otherwise confi- If, during arbitration or trial, a partys
dential information testimony differs from that partys interroga-
information that has no possible tory responses, the interrogatory answers
relevance to the lawsuit, or may be used to impeach (contradict) the
information that is equally available to party. That is, the interrogatory answer can
the party that is asking. be read to the judge or jury to show that
Sometimes, an interrogatory seeks appro- the witness changed his or her testimony.
priate information but is improper in form. For example, the Defendant in a car acci-
Generally a lawyer will object to the form dent case might testify at trial that he or she
of these interrogatories (as vague or too carefully looked in every direction before I
broad, for example) but ask the client to moved into the intersection where the
respond anyway. By objecting to form, the accident happened. The lawyer for the
lawyer reserves the right to object if the opposing party might then read out the
other side later attempts to use the inter- Defendants interrogatory answer, in which
rogatory responses as evidence at trial. the Defendant wrote I checked in both
Objections to interrogatories are discussed directions as I entered the intersection.
in detail in Section VI of this Chapter. The difference between checking for other
When objectionable interrogatories are cars before I entered and as I entered
asked (and they often are), it is the lawyers the intersection might be important in
4/14 THE LAWSUIT SURVIVAL GUIDE

deciding who was at fault for the accident. 18. What happens if I cant respond to
The Defendant would be forced to explain the interrogatories in time?
which statement is accurate and why the
answers are different. Usually, a party is able to answer interroga-
tories within the time provided. But a party
may need more time if questions require a
16. When do lawyers send search for documents or discussions with
interrogatories? others who are not readily available, or if
the partys lawyer will be unavailable for
Interrogatories are usually among the first awhile and unable to review the partys
discovery devices used in a lawsuit. Sets of answers. In those instances, it is common
questions are often sent to the opposing practice for a lawyer to ask the other side
party in the first few weeks or months of for a few more days or weeksknown as
litigation. Interrogatories are sent early an extension of timeto return the answers.
because they can provide a lawyer with a These requests are usually grantedthe other
long list of people and documents related side will likely need a similar courtesy at
to the case. The lawyer can then follow up some point during the long lawsuit process.
using other discovery devices such as Although it is common practice for a
depositions and requests for production. In party to grant an extension of time to re-
courts that allow numerous interrogatories spond to interrogatories, a litigant should
(see Question 19), a lawyer commonly not assume that this will happen. If the
sends follow-up interrogatories later in the lawyer or party on one side regularly ignores
case. These follow-up questions can be the normal deadlines and repeatedly asks
used to pin down details about evidence for extensions of time, the other side may
obtained through other discovery procedures. stop being agreeable. Sometimes, a lawyer
for the other side is simply inflexible, always
demanding that responses be completed
17. How long does a party have to within the prescribed time period. In either
respond to interrogatories? case, if the answering party fails to get the
responses back in time, there can be very
A party usually has 30 to 45 days to respond negative consequences. A court may
to a set of interrogatories. Because a lawyer impose fines and payment of the other
must review answers before they are put sides attorney fees if they have to go to
into final form and returned to the other court to get a response. (See Chapter 5,
side, a client should get them to his or her Section VII). In extreme cases, failing to
own lawyer at least a few days before the answer on time may also limit the testimony
deadline. or objections a party can use at trial.
DISCOVERY 4/ 1 5

19. How many interrogatories can the two sides remain at loggerheads, then
be asked? each has the option of going to court. (The
procedures for going to court about
Some jurisdictions have limits, usually 25 to discovery are discussed in Chapter 5,
50, on the total number of interrogatories Section VII.)
each party may send to another. A limit is
particularly likely in lower level courts,
commonly called Municipal or Common 21. What happens if I come across new
Pleas courts. (See Chapter 3, Questions 4- or different information after my
5.) However, there are exceptions to these responses have been sent to the
limits. Often one or both sides feel they other side?
need extra interrogatories. Most jurisdic-
tions allow the lawyers to make an agree- After interrogatories have been answered, a
ment between themselvescalled a party may learn new information that
stipulationthat each side may send extra would alter, add to or contradict the earlier
interrogatories. In any jurisdiction, a lawyer responses. In some jurisdictions, a party
may request a judges permission to ask ex- has what is called a continuing duty to
tra interrogatories; judges generally allow at respond: a legal obligation to provide the
least a few over the limit. new information to the other side when-
ever it is discovered or remembered. In
other jurisdictions, however, there is no
20. What happens if one party doesnt such duty; the party must only provide
think the other has answered information that is accurate as of the time
interrogatories properly? the interrogatories are answered. When a
client first prepares proposed answers to
Lawyers from opposing sides frequently interrogatories, the lawyer should explain
disagree over whether one or another inter- whether there is a continuing duty to
rogatory is proper, whether an objection to respond. And even if there is no such duty,
an interrogatory is justified or whether an the client should always report new infor-
answer is complete. If such a disagreement mation to his or her own lawyer. This gives
arises, lawyers are required to first discuss the lawyer a chance to consider how the
the matterin legal lingo, to meet and new information can help or hurt that case
confereither by phone or in person, to and whether to reveal the information to
see if they can come to a compromise. If the other side.
4/16 THE LAWSUIT SURVIVAL GUIDE

Section III: Requests for How You Can Help Your Lawyer
Prepare a Request for Production
Production of
of Documents
Documents and A lawyers work in identifying documents to
Physical Evidence be requested, preparing the requests, some-
times going to court to obtain documents and
Often the most tediousyet in many law- painstakingly reviewing each document
suits the most importantdiscovery tool is received, can be a time-consuming process. If
the Request for Production of Documents. A you are paying your lawyer by the hour, it can
companys records may show how it has also be an expensive one. But the lawyer who
conducted its business, made decisions or gives short shrift to this task does so at the risk
treated its workers and customers. When it of missing key pieces of evidence. And if you
comes to long-term business patterns and lose patience with your lawyers slow but
performance, documents are often more careful work, you may well be sabotaging
revealing than the memories and descriptive your own case.
powers of witnesses. (For example, it was There may be ways to help your lawyer in
internal emails more than witness testimony this process, which can save you money and
that recently convinced a judge to find that allow your lawyer to find documents that
Microsoft had violated federal antitrust might otherwise be difficult to locate. This is
laws.) particularly true in business or employment
This section explains several separate but litigation, where you may have experience or
related proceduresRequests for Production inside information about how the other side
of Documents, Requests for Inspection of keeps its records. Here are a few suggestions:
Property, Subpoenas Duces Tecum, Deposition Give an overview. You may be able to
Subpoenas (Records Only) and Requests for help your lawyer understand what types
Independent Medical Examinationthat of documents to request by explaining
allow a party to obtain copies of documents, the structure of the other sides business.
to inspect and test physical objects and in This might include a description of the
some cases to examine another partys responsibilities of different divisions or
physical condition. By using these devices, offices and the roles of different execu-
a litigant can inspect virtually any piece of tives and management-level employees.
written, electronic or physical evidence Explain recordkeeping practices. If you
related to the lawsuit, subject to the limits know how the opposing side keeps its
on discovery discussed in Section VI. records, including what different
records are called, what software is
used and how information is stored,
share this information with your lawyer.
DISCOVERY 4/ 1 7

Go over the documents produced. to examine and test the other cars brakes
Once your lawyer receives another or other equipment.
partys documents, ask your lawyer
whether it would be helpful for you to
review them. If you are familiar with the 23. Whose documents and property
other sides business, you can explain can I inspect?
the functions of different types of docu-
ments, identify individuals named in the By sending a request for production, a
documents and flag important papers party may inspect, examine and copy docu-
for your lawyers special attention. ments or objects owned, possessed or con-
trolled by any other party to the lawsuit. A
judges permission for such a request is not
22. What kinds of things can I usually required, though in some jurisdic-
include in a request for tions the requesting partys attorney must
production or inspection? draw up a statementknown as a Declara-
tion (or Affidavit) in Support of Request for
A party to a lawsuit may request that another Production or Affidavit of Good Cause
party provide copies of any business, orga- explaining under oath why inspection or
nization or government records, personal production of the material is necessary to a
documents, compilations of data, internal fair resolution of the lawsuit.
memoranda, manuals, correspondence and
almost anything else that has been reduced
to writing, printing, computer disk or elec- 24. Can I obtain documents or
tronic file if those records relate, directly or inspect property under the
indirectly, to the dispute or to the amount control of a non-party?
of damages claimed.
A party may also ask to inspect, examine, Yes. A party may copy or inspect documents
measure, test, photograph and take samples and property controlled by someone who is
of any physical object, including land or a not a party in the lawsuit if the records or
physical structure, under the control of objects might have some bearing on the
another party. For example, if a contractor case. For example, the police report on a
is being sued for faulty work on a house, traffic accident may be obtained even though
the contractors lawyers may request that a the city and its police are not parties to the
construction expert enter the home to in- lawsuit. Or, a business that is not a party to
spect the work. Similarly, in a car accident a lawsuit may have records of its transactions
case, either side might request permission with another company that is being sued; a
4/18 THE LAWSUIT SURVIVAL GUIDE

lawyer may want to inspect those records complete with court reporter and all the other
to examine the business practices of the lawyers in the case. (See Section V.) To save
company being sued. time, money and hassle for all concerned,
Documents or property belonging to your lawyer might instead try contacting the
someone who is not a party are obtained person or entity that has the documents or
by sending that person or organization a other things and asking to examine or copy
Subpoena Duces Tecum, a Subpoena for them informally.
Production/Inspection or a Deposition Sub- Unfortunately, this informal process does
poena for Records. Although these legal not guarantee that the person or organization
papers are technically subpoenascourt agreeing to the request will provide every
orders to appearin most jurisdictions they document in its possession. Your lawyer might
are sent directly by the lawyer who wants decide that it is too risky to rely on informal
the material, without the need for prior arrangements if the documents are important
court approval. These subpoenas do not and the other person or organization has any
require that the responding party actually reason to hold back some of its information.
appear in person, as long as copies of the In that instance, your lawyers caution is well-
requested documents are delivered to the taken; it is likely worth the extra time and
lawyer requesting them. money for the more formal procedure.

Agreeing to Exchange Documents


Instead of Going to Court. In a few 25. Can I fight a request to produce
jurisdictions, a party must go to court for per- or inspect?
mission to inspect another partys documents
or other property. However, both sides can There are several reasons why a party may
save time and money by agreeing ahead of legitimately refuse to produce documents, or
time to reasonable, run-of-the-mill exchanges other property, the opposing side requests.
of documents. Then, rather than hearing argu- For example, the documents might reveal
ments in court, a judge can merely rubber- confidential material, may refer to private
stamp the lawyers agreement. Such an personal matters or may simply have nothing
agreement for a mutual exchange is called a to do with the dispute. (The legal justifica-
Stipulation. tions for refusing to respond to a discovery
In some jurisdictions, the only way to force request are explained in Section VI.)
a non-party to produce records or other things When a party does not want to produce
is to issue a Subpoena Duces Tecum re Depo- something requested by another party, the
sition. This cumbersome process requires that lawyer for the resisting party informs the
the non-party with the documents actually other side by written objection, which
appear in person at a scheduled deposition, states the legal reason for not providing the
DISCOVERY 4/ 1 9

material. The lawyer for the requesting Does it ask for documents arranged in
party must then decide whether to pursue categories that do not correspond to the
the matter. Often, opposing lawyers will way the records have been kept? In other
discuss the matter with each other, seeking words, would it require you to reorganize
a compromise whereby some material the documents before producing them?
might be produced while other material is Does it ask for categories of documents
withheld. If no agreement can be reached that are too broad? That is, does it ask
and the requesting lawyer believes the re- for a group of documents the great
quested material should be turned over, majority of which have nothing to do
that lawyer may go to court to seek a with the dispute (for example, records
judges ordercalled an Order to Compel of all emails sent and received over the
Productionrequiring the documents or previous three years)?
other objects to be produced. (See Chapter Does it simply ask for too much? That
5, Section VII.) is, would you have to do a tremendous
amount of work to produce documents
How You Can Help Your Lawyer that have information of little or no
Respond to a Request for Production value in the case?
When your lawyer receives a request for pro- If you answer yes to any of these questions,
duction of your written or electronic docu- discuss the matter with your lawyer to see if
ments or inspection of your property, he or the lawyer should object to that request. Once
she will review it carefully to consider you and your lawyer have decided what
whether you are legally obligated to produce documents you should produce, organize
the items requested. Because you probably them in a way that will help your lawyer keep
know your documents or property better than track of them. The documents may be pro-
your lawyer does, you should also personally duced in the same orderfiles, sets or catego-
go over each item requested, with the follow- riesin which they are regularly kept, or they
ing questions in mind (see Section VI for a can be reordered to match the specific re-
complete discussion of the limits on discovery quests to which they respond.
information):
Does it ask for something private or
confidential? 26. Who pays for the production of
Does it ask for something you dont documents or testing?
have or cant produce?
Does it ask for something to which the The cost of copying documents, or of
other side also has access? inspecting and testing a physical object, is
Does it ask for something you have borne by the party who requests the infor-
already produced? mation. If an expert is required to analyze
4/20 THE LAWSUIT SURVIVAL GUIDE

the document or electronic files or a physi- anyone roaming around in a computer hard
cal object, the requesting party also pays drive be a computer expert who is not
that cost. However, copying, inspecting and likely to ruin its data.
analyzing are not the only expenses associ- The timing of, and limits on, these on-site
ated with requests for production. The col- inspections can sometimes be difficult to
lection and organizing of documents may work out. Disputes over inspection requests
require considerable labor by the respond- are more likely to wind up in court than
ing party or employees. And a lawyer being disputes over simple document production.
paid by the hour may run up a sizable bill (See Chapter 5, Section VII.)
reviewing the documents before releasing
them to the other side. These expenses are
not reimbursed by the party seeking the 28. How long do I have to gather
documents and instead are borne by the the documents the other side
party providing them. has requested?

A party usually has 30 days to respond to a


27. Is a party always required to request for production. However, this time
actually produce physical objects? limit may be, and often is, extended by
mutual agreement, for the convenience of
Some physical objects may be important to lawyers or clients. If a party would have
a case but difficult to produce for the other trouble gathering, organizing and reviewing
side to inspecta computer systems hard the requested documents within the allot-
drive, for example, or an inoperable car. ted time, that partys lawyer may ask the
Others may be impossible to producea other side for an Extension of Time within
house, fence, wall or other immovable ob- which to produce the items. If the extra
ject. In these situations, the requesting time seems reasonable, the request is usu-
party must be permitted to enter the re- ally granted, in part because the other side
sponding partys propertyor other place will probably need similar courtesies some-
where the object is locatedand conduct time during the course of the lawsuit. Rea-
an inspection on the spot. sonable extensions are also usually granted
The time and place of the inspection because, if refused, the party producing the
must be agreeable to both sides, along with documents could ask a judge to grant the
the duration of, and other limits on, the in- extra time. If the request for more time was
spection. The parties may also need to reasonable, the judge could order the party
agree on the qualifications of the inspector. who refused the extension to pay for the
For example, a responding party might be other lawyers time in going to court to get
completely within its rights to demand that it. (See Chapter 5, Section VII.)
DISCOVERY 4/ 2 1

harm. The legal question of who was at


You Must Produce Documents
fault in such a case may depend on
in Reasonable Order
whether the injured persons pre-existing
If you get a request for a ton of documents, physical condition contributed in some way
you may feel like getting some revenge on to the accident. Did a bad knee cause a
the other side by dumping copies of all of fall? Did poor eyesight prevent the Plaintiff
them loose into a huge box, shaking it vig- from noticing a danger? And the amount of
orously two or three times and then spray- compensation in these cases depends on
ing it with a hose, just for good measure. the extent of the injuries.
Satisfying as that may be for the moment, Because the Plaintiff has raised questions
it can cause you grief in the long run. The about his or her own physical condition by
law requires that you turn over documents filing an injury lawsuit, courts permit a
in the same order and condition in which Defendant to closely examine the Plaintiffs
they are maintained in the usual course of medical history, including access to some
business. So, if you send the other side the of the Plaintiffs medical records. However,
big messy box, they have the right to send the Defendant may not rummage around in
it back to you, demand that you present it the records of every doctor the Plaintiff has
in proper form and charge you for the time ever seen. A Defendant may inspect only
it took them to review it and send it back. those records directly related either to
You may also have to pay your own lawyer possible causes of the accident or to the
for the time spent brokering this exchange, resulting injuries. For example, if Plaintiff
as well as for the lawyers time organizing claims a leg injury, the Defendant may have
the documents properly. access to records of an orthopedist who
treated the injury but not to records of the
Plaintiffs cardiologist, gynecologist or
psychologist.
29. Can the other side inspect my
medical records?
30. Can I be forced to submit to a
In limited circumstances. In most lawsuits, medical examination?
a partys physical condition and medical
history are off limits. But in some cases, a Possibly. When a Plaintiff places his or her
partys physical condition is central to his medical condition in question by filing a
or her claims in the lawsuit. The most com- lawsuit that claims physical injury, a Defen-
mon example is a personal injury action, in dant usually has the right to force Plaintiff
which the Plaintiff asserts that the other to undergo a physical examinationreferred
sides conduct caused the Plaintiff physical to as an Independent Medical Examination
4/22 THE LAWSUIT SURVIVAL GUIDE

(IME)by a doctor of the Defendants choos- doctor, the time and place and the scope of
ing. An IME might also be appropriate if a the proposed examare reasonable, the
party claimed that a physical or mental con- party should probably agree rather than
dition excused that persons failure to fulfill spend time, energy and money fighting it.
a legal duty, such as the performance of Even if an exam might be proper in general,
contract obligations or employment terms. however, the terms proposed may be
Some courts also allow a psychiatric IME of objectionable. For example, the time or
a Plaintiff who claims to have suffered place might be inconvenient, the doctor in
serious emotional distress because of the question might not be an expert in the spe-
Defendants actions. However, an IME is cific medical field at issue, proposed testing
not permitted merely to test an opposing might be too intrusive or uncomfortable or
partys mental acuity, credibility or capacity the scope of the proposed examination
to recall. might be too broad.
In many jurisdictions, an IME may only A party can also object to the entire exam,
be obtained by court order or written either because the partys physical condition
agreement between the parties. In other is not sufficiently related to the issues in
jurisdictions, no court order is required. the case or because the examination is not
Instead, a written request is sent directly likely to disclose useful information. If a
from one lawyer to another. If an IME is party objects to an IME, the requesting
held, the doctor who conducts the exami- party may go to court for an orderOrder
nation must prepare a written report of the Compelling Independent Medical Examina-
examination, of any tests conducted and of tionthat the exam take place. Conversely,
the doctors opinion concerning the medical the party who is to be examined may seek
condition in controversy. Each side gets a a protective order from the court, forbidding
copy of that report. The party who requested or limiting the examination. (See Chapter 5,
the IME must pay the entire cost of the Section VII.)
examination, tests and preparation of the
doctors report.
32. If I am ordered to attend an IME,
what preparations should I make?
31. Can I challenge a request for an
Independent Medical Examination? An IME must be limited to the physical or
psychological condition in contention in
When a request for an IME is made, the the lawsuit and to the specific procedures
party who is to be examined has several stated in the written agreement or court
possible responses. If the exam seems order. Before going to an IME, a client and
appropriate and its termsthe type of lawyer should discuss these limits and
DISCOVERY 4/ 2 3

those aspects of medical history that should The partys attorney may want to be there,
not be discussed. For example, if the party to make sure the exam stays within the
has a knee or back injury, a doctor does not bounds of the agreement or court order. In
need to know the partys mental health his- some jurisdictions, however, lawyers are
tory. However, a doctor is permitted to ask not allowed. And even if allowed, some
for the normal kinds of medical background lawyers simply prefer to have someone
information that a treating physician would elsea paralegal, investigator or one of the
need to diagnose the particular condition. clients friends or relativesattend the IME,
In many jurisdictions, another person may so that person can testify about the exami-
accompany the person being examined. nation later in the litigation, if necessary.

Three Is Not a Crowd

Although you may prefer not to involve suits, are often heavily predisposed not to
friends or relatives in your case or have your find a serious injury and so do only perfunc-
medical condition discussed in front of tory examinations. If someone can confirm
someone else, it may be a good idea to have that a doctor took only five minutes both to
company at an IME. Having someone by get a medical history and to perform an ex-
your side may simply help you relax. Being amination, that testimony could undermine
examined by a doctor you dont know can the doctors opinion about your physical
be uncomfortable, and the circumstances condition.
make it more soa lot is on the line for Finally, a support person can help you
you, and a doctor chosen by the other side assert your rights if the examination strays
is often less than supportive. If you are too into forbidden areas. If the doctor seeks
uncomfortable, you might not provide the information that is not relevant to the law-
clearest or fullest description of your suit or attempts to perform examinations or
medical condition. tests that are not included in the written
Also, if the examination is superficial or examination order, you will have someone
badly handled, someone else will be able to to help you stop the doctors excessive
corroborate that fact. Doctors chosen to probingand to report to your lawyer what
conduct IMEs, especially for insurance the doctor did and said.
companies defending personal injury law-
4/24 THE LAWSUIT SURVIVAL GUIDE

Section IV: Requests for Requests for Admissions Rarely


Admissions Settle Anything Major
Most requests for admissions are intended
This section discusses requests for admis-
to eliminate specific matters in a case that
sions: written questions one party sends to
no one wants to bother disputing. But
another asking whether certain facts are
admissions rarely settle anything that
true or documents are genuine. Admissions
determines who wins or loses the lawsuit.
are used to establish basic, sometimes
Lawyers are too cautious to permit a client
obvious facts so that all sides may move
to admit anything other than small details
through the lawsuit without wasting time,
or obvious facts.
energy and money trying to prove those
Theoretically, a court can impose sanc-
facts. Requests for admissions are usually
tionsusually a fineagainst a party who
exchanged following the first stages of
fails to admit something that was clear at
discoveryafter initial interrogatories and
the time and is later proved at trial to be
perhaps an early depositionwhen the
true. But lawyers can usually find enough
outlines of the case are known but crucial
ambiguities in even the simplest assertion
depositions have not yet taken place.
The earth isnt actually round, it is
spherically ovoidto avoid such penal-
ties, so they tend not to worry about them
when instructing their clients to deny a
certain fact.

33. What types of issues do requests for


admissions resolve?

A request for admissions may ask a party to


admit that a statement of fact is true or that
a document is genuine. In most jurisdictions,
a request may also ask for a partys belief
or opinion about some aspect of the dis-
pute.
Some requests are simple to answer: Yes,
so-and-so did work for the company on a
DISCOVERY 4/ 2 5

certain date; Yes, the signature on a certain 34. What is the effect of a
document is genuine; Yes, the document partys admission?
specified is a true copy of the original in
the companys files. But many requests for If a party admits a particular statement of
admissions are difficult to assess and dan- fact, that party is bound by the truth of
gerous to answer. For example, a party that fact for the remainder of the case. The
might be asked to admit that the way it party who has admitted the fact will not be
conducted business conformed to the permitted to introduce evidence contradict-
standard practice in that industry. At first it ing the fact at any later stage of the litiga-
may seem sensible to admit this. However, tion. For example, if a business admits that
by denying it, a party can assert later in the it employed someone at a certain time,
lawsuit that company standards were actually the business may not later claim that the
higher than those in the industry. person was only an independent contractor
or subcontractor, facts which might be
crucial in deciding whether the business is
Certain Requests Need Not legally responsible for the employees
Be Answered at All actions. Because seemingly insignificant
differences in language can have a large
Some jurisdictions restrict what a party can
impact down the road in a lawsuit, the
be asked to admit. In some, a request may
question of whether or not to admit some-
not ask for the admission of an ultimate
thing must be very carefully considered by
factone that establishes a crucial issue
client and lawyer together.
the party needs to establish in order to win
the lawsuit. In a few jurisdictions, a request
How You Can Help Your Lawyer
may not include legal admissions, some-
Answer a Request for Admissions
times referred to as conclusions of law. For
Because the effect of an admission can be so
example, a request in one of these jurisdic-
serious, your lawyer will play the greater role
tions could ask whether you admit to driving
in deciding what should be admitted and what
a specific speed but not whether you broke
should not. Your lawyer will do so with great
the speed limit. If a request violates one of
caution and a lawyerly talent for quibbling
these rules, your lawyer should instruct
about details.
you not to answer it. In place of an answer,
Even so, your lawyer may not realize that a
the lawyer will provide a written objection,
fairly simple fact to be admitted is actually
which states the legal reason the request is
somewhat tricky. You should carefully review
not being answered.
every request for admission and do a little
4/26 THE LAWSUIT SURVIVAL GUIDE

lawyering yourself. That is, try to think of 36. How should I respond if I am asked
any way in which the request might be to admit something that is partly
complicated or ambiguous. Make a note of true and partly false, or is unclear?
your ideas and discuss them with your lawyer
before your reply is sent to the other side. If a request for admission is mostly but not
completely true, or if the answering party is
not entirely certain whether it is true,
35. Can I take back an admission? generally it should be denied. This is not
merely a tactic to avoid making life easier
In some narrow circumstances, it is possible for the other side. Because its so difficult
to get out from under an admission that to take back an admission, a party cannot
turns out to be incorrect. The admission may be too cautious in responding to these
be corrected if it resulted from a clerical or requests.
other normal human error. An admission For example, a business might be asked
may also be retracted if later information to admit that it checked the status of a
turns up that proves the admission was subcontractors license before hiring that
made in error. An admission may not be subcontractor. If the business had indeed
withdrawn, however, simply because a checked to see that the subcontractor had a
party realizes that it was damaging, even if current license, it might seem that the fact
there is good reason that a denial would be should be admitted. But checking the status
just as valid an answer. Nor is a party of a license might also be construedonce
permitted to withdraw an admission based the lawyers start playing with wordsto
upon new information if a reasonable mean that the business had checked with
search of that partys files or documents, or the license bureau to see if there had been
discussion with others within a business or any complaints against this subcontractor,
organization, would have disclosed the rather than merely seeing if the license was
information before the admission was currently valid. If one of the issues in the
made. case is this subcontractors history of
If there might be a valid legal basis for shoddy work, the way this request for
correcting an erroneous admission, the admission is answered could be important.
admitting partys lawyer may file court
papers called Motion for Leave to Amend/ Have It Both Ways and Save Some
Withdraw Admission or Motion for Relief Money. In those instances when a
From Admission. A judge will then decide if statement of fact in a request for admissions is
there is good cause to reverse the mistake. mostly but not completely true, you can admit
the parts that are true and briefly explain what
DISCOVERY 4/ 2 7

is not true rather than denying the statement also the most useful to the lawyers and
entirely. This answer with an explanation may most important to the litigants.
be better for both you and the requesting party.
If you deny the entire statement, the other side
might engage in lengthy discovery to get to 38. What is a deposition?
the bottom of things, which would also require
a lot of unnecessary and expensive work by A deposition is a less-formal version of
your lawyer. courtroom testimony. Typically in a lawyers
office rather than a courtroom, one partys
lawyer questions a witness (with an oppos-
37. What if I dont know how to ing lawyer sometimes objecting), the
answer a request for admissions? witness answers under oath and the lawyer
follows up with more questions. Then the
Often, a responding party simply does not opposing lawyer gets a chance to ask ques-
know one way or the other about the fact tions. This goes back and forth until all the
at issue in a request for admission. Or the lawyers have asked all their questions.
responding party may not have enough A deposition witness (deponent) may be
information either to admit or to deny a anyone, party or not, who might have
particular statement of fact. A responding information about any aspect of the case.
party is obligated to make reasonable The deponent typically must answer a wide
efforts to investigate the matter. However, if range of questions regarding his or her
those efforts do not provide the answer, the personal and business history and virtually
responding party is permitted to deny the anything about the dispute and its conse-
fact and state that the denial is based quences. A deposition serves to pin down
upon insufficient information. each deponents story so that it cannot sig-
nificantly change later on. It also gives the
lawyers a chance to experience what a de-
Section V: Depositions ponent looks, sounds and acts likea pre-
view of what a jury would see and hear if
This section explains depositions: the face- the deponent became a witness at trial. The
to-face questioning of a party or witness by deponents responses and reactions under
lawyers. Although depositions take place out pressure give the lawyers a good idea not
of court, the witnesscalled a deponent only of what a witness would say at a trial
answers under oath and the entire proceed- but also of whether a jury would believe it.
ing is recorded and transcribed. Depositions As compared with the carefully limited
are the most expensive and explosive of all written answers the lawyer receives from
discovery procedures. Generally, they are interrogatories (Section II) or requests for
4/28 THE LAWSUIT SURVIVAL GUIDE

admissions (Section IV), a deposition gives however, lawyers have become enamored of
lawyers the opportunity to explore broadly audio and video recordings of depositions. In
what a witness knows. In a deposition, a addition to adding voice and/or picture to the
lawyer will ask not only planned questions record, audio or video recording has the
but also follow-up questions suggested by potential advantage of being cheaper than a
a previous answer. This chance to follow stenographers fees. However, many lawyers
up on the spontaneous responses of a only use audio and video recording as a supple-
deponent is the element of a deposition ment to the court reporter, thereby adding cost
that sets it apart from all other types of dis- rather than saving. Even if audio and video
covery. This spontaneity not only permits recording is the only method used, the cost-
the lawyer to probe deeply and broadly saving may turn out to be illusoryto use an
into important lawsuit matters but also audio or video deposition record for arbitration
often reveals new facts and issues that the or trial, a transcript has to be made anyway.
lawyer can then explore further. In many jurisdictions, the lawyer arranging
the deposition has a choice among steno-
Multimedia Show. The traditional way graphic, audio or video recording. A notice or
to record a deposition is to have a subpoena for the deposition must indicate
stenographercalled a court reportertake which recording method(s) will be used. But
down everything said, transcribe it and bind it any other party may choose to record the
into a booklet. The booklet is then corrected deposition in a different way, as long as that
and signed by the deponent and becomes the party notifies everyone and provides and pays
official record of the deposition. In recent years, for the extra recording method. Whatever
DISCOVERY 4/ 2 9

method is used, all parties have a right to a do not. If both a party and the partys law-
copy of each record, paying for the copy yer are there, only the lawyer is permitted
themselves. to ask questions. If a party has no lawyer,
Computers have also entered the deposition then the party may do his or her own ques-
recording scene. Some court reporters have tioning.
digital equipment that produces a transcript of The deponent may also have a lawyer
the testimony as the reporter records it. The present to protect his or her interests during
transcript can be transferred immediately to questioning. A party being deposed always
lawyers laptop computers, making the testi- has a lawyer present but a non-party witness
mony available for immediate reviewas rarely does.
another lawyer questions the witness, during
breaks and immediately after the deposition For more information on the deposition
(instead of waiting days or weeks for the reporter process, see Nolos Deposition Hand-
to prepare a transcript). Because this technology book, by Attorneys Paul Bergman & Albert
is new, reporters have recently invested in the Moore (Nolo).
equipment and so may charge higher rates for
its use. If a lawyer plans to use these other How You Can Help Your Lawyer
forms of recording, he or she should consult With Depositions
with the client to go over any extra costs in- Before your lawyer takes the deposition of any
volved and the benefits of using the procedure. witness personally known to you, you should
tell your lawyer what you know of that persons
personal history, connection to the case
39. Who attends a deposition? particularly the role the person plays in a
businessand relation to other parties and
In addition to the deponent, each party to witnesses. Your lawyer may already know
the lawsuit has a lawyer present. Not every much of this from answers to interrogatories
lawyer asks questions, however. If the and documents, but you may be able to add
witness being deposed has nothing to say useful details.
that affects a particular party in the lawsuit, You also have a right to be present during
that partys lawyer might merely observe the every deposition. But lawyers often prefer to
deposition. On some occasions in a multi- conduct some depositions without their cli-
party lawsuit, one partys lawyer might not ents present. Lawyers might be concerned that
even bother to attend the deposition of a a clients presence might intimidate or greatly
witness whose testimony does not affect agitate certain deponentsparticularly an op-
that lawyers client. posing partywhich might prevent the
The parties themselves also have a right to witness from opening up and saying as much
attend all depositions, though usually they as possible.
4/30 THE LAWSUIT SURVIVAL GUIDE

There are times, however, when it may be nity to ask questions in what is called cross-
useful for you to attend a deposition. This is examination. Technically, a cross-examining
particularly true if there are non-legal, techni- lawyer is not permitted to ask questions on
cal aspects to the case that you may under- any subject that hasnt been covered in the
stand more thoroughly than your lawyer. You direct examination; lawyers refer to these
may be able to help your lawyer with these questions as beyond the scope of direct ex-
issues during the questioning. It may also be amination. But this rule is only loosely fol-
useful for you to attend at least one deposition lowed in depositions. The subjects covered
as preparation for your own deposition. There in direct examination are usually quite
is nothing like seeing the real thing to prepare broad, so few questions are clearly beyond
you for the grilling that lies ahead during your their scope. Also, deponents answers
own testimony. sometimes open up subjects that were not
included in the questions themselves. So
cross-examination questions are objection-
40. How does a deposition proceed? able as beyond the scope of direct exami-
nation only when they refer to subjects that
A deposition begins with some preliminaries, were obviously and entirely untouched
including a discussion of ground rules and during the direct examination.
of how long the questioning is expected to Redirect and Re-cross-examination. After
take. Then the witness is sworn intakes the first round of questioning by each partys
an oath to tell the truth under penalty of lawyer, each of the lawyers is permitted
perjuryby the court reporter, and the another round, called redirect examination
questioning commences. and re-cross-examination. A lawyers re-
Direct examination. The first segment of a examination is supposed to be confined to
deposition is called direct examination: those subjects raised by questions and
questioning by the lawyer who has sched- answers that followed that lawyers original
uled the deposition. Direct examination questioning. In other words, the lawyer is
may cover any subject that relates to the not supposed to go over the same ground
lawsuit, including the personal and business he or she covered in the previous round. It
background of the witness. Direct examina- is often difficult to say, however, exactly
tion continues as long as the scheduling when a new matter has been raised rather
lawyer wants to keep asking questions. than merely a different aspect of a subject
Cross-examination. After the lawyer who previously discussed. Commonly, the
scheduled the deposition is finished lawyers exhaustion ends the questioning
questioning the deponent, one lawyer for before application of this rule does.
each of the other parties has an opportu-
DISCOVERY 4/ 3 1

Breaks in the Official Record

A deposition begins when the court reporter which the lawyers agree to speak infor-
administers an oath to the deponent, under mally, without recording.
penalty of perjury, that his or her answers Other breaks in the record, however com-
will be true. From this oath onward, every mon, are not exactly routine. The lawyers
audible sound anyone in the room utters is sometimes argue so vehemently over a
supposed to be recorded until the lawyer point that they ask to go off the record to
who scheduled the deposition officially avoid their embarrassing spat being pre-
ends it. That is, the record is supposed to served for posterity. And if one of the par-
include every word. But in practice, lawyers ties is being deposed, the deponents lawyer
sometimes go off the record, a time when may refuse to permit the deposition to
the reporter stops recording. Some of this is continue until he or she has had a chance
quite routine: conversation during coffee, to speak with the witness in private about
bathroom, lunch and telephone breaks or how the deponent should respond to a
discussion among the lawyers about other question. In that case, the deposition may
business in the case. Other routine occa- halt for some time while the lawyer and
sions have to do with settling technical mat- deponent/client huddle outside for a lengthy
tershow to mark documents, for example, and important discussion that nonetheless is
or the order in which to proceedabout off the record.

41. Do lawyers object to deposition is markedly increased when it is a party


questions the same way they do who is being deposedthat partys lawyer
in court? is much more protective of his or her client
than any of the lawyers tends to be with
Deposition questioning is frequently inter- independent, non-party witnesses.
rupted by lawyers objections to certain The purpose of most objections is to clarify
questions and by disagreements among the the question asked so that the answer can
lawyers about those objections. It is not be clear. And lawyers for deponents some-
unusual for these disagreements to become times object in order to maintain their
heated arguments. The resulting disruptions, clients privacy or other privileged informa-
combined with the wide scope of questions tion. But lawyers also objectparticularly if
permitted, cause depositions to drag on. the lawyer makes a little speech explaining
Any lawyer may object to any question. But the objectionin order to hint to the
the frequency and vehemence of objections witness what the lawyer thinks the answer
4/32 THE LAWSUIT SURVIVAL GUIDE

should be. This is technically improper, but answer may be used as evidence in the
it goes on all the time. It happens most case. If the lawyer is merely objecting for
often when the deponent is a party and his the record, the lawyer follows the objections
or her own lawyer is objecting. by telling the party-deponent that he or she
may answer the question.
Occasionally, however, the lawyer for a
42. What happens when a lawyer party-deponent does not think the question
objects to a question? should be answered at all. The question
might intrude into privileged or confidential
When a lawyer makes an objection, all the matters, seek the party-deponents opinion
lawyers present discuss whether the objec- or ask the deponent to speculate about
tion is legally correct. Often the objection is something. Or, the question may simply be
to the form of a question; the lawyer who the final straw in a long line of questions
asked the question will usually respond by heading too far afield from proper issues in
asking it again in a different way, which the caseat some point, the lawyer simply
lawyers call rephrasing the question. But decides to draw the line at a particular
a lawyer might also object to the subject question.
matter of a question. For example, a lawyer Whatever the reason, the lawyer repre-
might object that a cross-examination or re- senting the party-deponent may formally
direct question is beyond the scope of what instruct the deponent not to answer the
has been asked before, that a question is question. This formal instruction from the
completely unrelated to the lawsuit or that lawyer takes the burden off the deponent,
a question delves into private or otherwise who is then legally permitted not to answer.
privileged matters. See Section VI. It also makes clear to a judge, if the matter
What happens when the lawyers cannot later comes up in court, that it was the
agree whether a question is proper? That lawyers professional judgment that led to
depends on how significant or intrusive the the refusal to answer and not merely the
question is and whether the deponent is a witnesss personal opinion or orneriness. If
party to the lawsuit. A non-party deponent the questioning lawyer believes that the
usually must answer every question despite objection was legally invalid, that lawyer
any objections. And party-deponents, too, may go to court for a judges order that the
usually answer most questions even if their question be answered, and perhaps for
lawyer objects. The objection is merely monetary sanctions against the opposing
stated for the recordthe lawyer is pre- party who would not answer or against the
serving the objection for later argument in lawyer who gave the instruction not to
court over whether the question and answer. See Chapter 5, Section VII.
DISCOVERY 4/ 3 3

Depositions Can Get Wild 43. How and when do depositions


and Woolly get scheduled?
Depositions often create a lot of unpleasant
In most jurisdictions, depositions may not
fireworks among lawyers, clients and
begin until about 30 days after the Defen-
deponentslengthy arguments and hostile
dant has been served with the Complaint,
remarks between lawyers; rambling, balk-
in order to give the Defendant time to hire
ing and angry answers by witnesses; even
a lawyer and get up to speed on the case.
threats by one side or the other to get up
In the first month or two of a case, lawyers
and leave. In part, these melodramatics
might take the deposition of one key
occur because of pressure on the lawyers
member of a business or other organization
and deponents: usually, only one deposi-
in order to get an overall picture of how
tion per witness is permitted in a case and
that organization works. An early deposition
that deposition may be crucial to winning
might also be scheduled if a lawyer feels a
or losing the lawsuit.
particular deponent may forget valuable in-
Depositions are also so fractious be-
formation, die, disappear or move outside
cause they take place in person rather than
the courts jurisdiction.
through an exchange of papers and be-
Otherwise, the heaviest concentration of
cause their course cannot be predicted or
depositions is usually in the three to six
fully controlled by the lawyers. All the
months before the trial date, after the other
lawyers are together in one room, with op-
forms of discovery have been completed.
posing sides sometimes trying to get the
Depositions may be scheduled up to a
deponent to say completely different
specific cut-off date some two to four weeks
things. Also, most deponents dislike get-
before the date set for arbitration or trial.
ting grilled by lawyers, particularly if it is
The final depositions are usually of experts,
their own lawsuit on the line. Witnesses
if any, who have been hired to assist each
feel especially put out because legal rules
side in presenting its case.
permit the questioning to wander far and
wide into a deponents personal and busi-
ness life. And all of this happens with no
judge around to keep a lid on things.
4/34 THE LAWSUIT SURVIVAL GUIDE

The Dating Game 44. How is deposition testimony used?

As a practical matter, lawyers often agree Informally, deposition testimony lets every-
among themselves on dates for depositions. one in the case know what a witness has to
This saves the hassle of one lawyer picking sayindeed, has now committed to under
a date and then having to change it to oathon both large issues and small
accommodate the schedules of the other details in the case. It also lets the lawyers
lawyers or parties. This is particularly see a witnesss demeanorthat is, how be-
useful when there are several parties and lievable and appealing the witness is. Once
lawyers in the case, since all lawyers have the lawyers and parties have considered the
a right to be present at any deposition. testimony from important depositions, they
Unfortunately, by the time depositions may alter their assessment of the likelihood
roll around, lawyers may have descended of winning at trial, or of the amount of
into the bickering and gamesmanship that compensation that might be awarded,
so often plague discovery. As a result, they which often brings them closer to settling
may set deposition dates without first the case.
checking with the other side, then use the Formally, deposition testimony may be
inconvenience to the other side as a used when a lawyer asks a judge to decide
bargaining chip to try to win some other important issues, and even the entire case,
concession. before trial. (See Chapter 5, Section VIII.)
One of the results of this game-playing At arbitration, deposition testimony often is
over dates is that the depositions them- used instead of live testimony. (See Chapter
selves keep getting pushed further and 7). At trial, deposition testimony may be
further away, delaying the progress of the used in a couple of ways. First, if a witness
entire case. If you want your case to keep at trial contradicts something he or she said
moving, these delays can become extremely at deposition, the deposition testimony may
irritating. If this kind of tit-for-tat resched- be used to impeach the witness. That is,
uling seems to be happening in your case, the deposition testimony can be read to the
ask your lawyer to avoid contributing to it. judge or jury to show that the witness had
And ask that your lawyer establish a firm previously said something different. (See
datelawyers call it a date certainfor Chapter 9, Question 48.) Also, all the
your own deposition. important parts of a deposition may be
read to judge or jury in the case of an un-
available witnesssomeone who has died,
is physically unable to appear at trial, can-
not be located or lives beyond the courts
jurisdiction.
DISCOVERY 4/ 3 5

Controlling Deposition Costs. Deposi- 45. Must a deposition always be


tions can be very expensive. Lawyers face-to-face?
for every party take part and some depositions
go on for days. It takes time for attorneys to Not always. A money-saving but rarely used
prepare for depositions, and later to review alternative to the standard deposition is the
the transcripts of what was said. If a deponent Deposition Upon Written Questions. Instead
lives far from the lawyers office, there is the of traveling some distance to depose a non-
cost of the lawyers travel. Non-party deponents party witness, lawyers prepare written
must be paid witness fees and travel costs. And questions that the deponent answers orally,
there are considerable expenses for recording under oath, before a court reporter. The
the deposition and preparing transcripts. lawyer who schedules the deposition writes
For all these reasons, if your lawyer sched- up an initial set of questions, which are sent
ules more depositions than are necessary, to all the other lawyers. The other lawyers
costs will quickly mount, particularly if you add their own questions, and all the ques-
are paying the lawyer by the hour. It is diffi- tions are sent to a court reporter where the
cult to control depositions taken by the other deponent lives.
side, but you can ask how many depositions If the deponent is within the courts juris-
your own lawyer intends to schedule and talk diction, he or she will be legally obligated
about whether those depositions are necessary. to appear to answer these questions. If not,
You can raise the possibility of waiting for the the witness may appear voluntarily. If and
other side to schedule some independent when the deponent does appear, the court
witness depositions, so that the other side and reporter reads the questions to the deponent
not you must bear the witness fees and the and records the deponents answers.
cost of the court reporter. And you can ask the The advantage of this process is purely
lawyer to use less expensive discovery devices economic. The lawyers dont have to travel
when practical. to and spend time in a deposition. But the
However, bear in mind how important disadvantages may be significant. The law-
depositions can be and resist the temptation yer has no opportunity to see and hear the
to be deposition-wise and case-foolish. If, witness or ask spontaneous questions. A
after your discussion, your lawyer still deponents answer that suggests follow-up
believes a particular deposition is necessary, it questions will just sit there silently as the
probably is. next scripted question is read. Despite these
drawbacks, if you are paying your lawyer
by the hour, a Deposition Upon Written
Questions could be used for a witness from
whom only limited details need to be gath-
eredespecially if the witnesss answers
4/36 THE LAWSUIT SURVIVAL GUIDE

are not likely to be evasive or misleading in which the deponents lawyer believes
favor of the other side. should not be producedthe
deponents lawyer may seek a court
order to have the terms of the deposi-
46. Do I have any control over the tion changed or the deposition can-
scheduling of my own deposition? celled. (See Chapter 5, Section VII.)

The other side in a lawsuit will decide


when they take an opposing partys deposi- 47. How important is my
tion. When a partys lawyer receives notice own deposition?
that the opposing side intends to take the
partys deposition on a certain date, the The most stressful and significant part of
party has several possible responses: the discovery processindeed, of the
Accept the date. One choice is simply entire case short of trialis a litigants own
to accept the inevitable, agree to the deposition. It is probably the first time the
date the other side has chosen and litigant will be face-to-face with lawyers on
begin to prepare for the deposition. the other side, and also perhaps with the
Informally request changes. If the date opposing party. The litigant must answer
the other side has chosen presents a difficult questions in a tense atmosphere
scheduling conflict for either the client often made downright hostile because of
or the lawyer, the lawyer may infor- bickering among the lawyers.
mally request a new date from the The importance of a partys own deposi-
other side. When several lawyers are tion varies with the circumstances of the
involved, finding a date convenient case. If the dispute involves the party-
for everyone can be tricky business. deponents own personal conductsuch as
Nonetheless, scheduling conflicts are an automobile accident case in which the
common, so a request to reschedule is deponent was the driverthen the deposi-
not usually met with much resistance tion might be crucial. On the other hand, if
unless the date has been changed there is little question who was at fault for
before. the accident and the only real question is
Make a formal objection. More compli- the extent of someone elses injuries, the
cated problems with the deposition deponents testimony might not be of great
notice may require more formal significance. Similarly, if the deponent
responses. If there is a substantive actively engaged in business that is the
problem that cannot be worked out subject of the lawsuit, or was a witness to
for example, if the deponent is asked how someone else performed key business
to bring documents to the deposition tasks, the deposition testimony may be
DISCOVERY 4/ 3 7

crucial. But if the main issue in the dispute about these subjects if they come up.
is someone elses performance about which Raising these concerns will also remind
the deponent knows little or a technical the lawyer to prepare legal arguments to
matter about which the deponent has no protect this information.
expertise, then the litigants own deposition Review results from previous discovery.
might be less important. You should go over any information
documents, answers to interrogatories
How You Can Help Your Lawyer and responses to requests for admissions
By Preparing for Your Own Deposition you have already provided during
If your deposition testimony may be crucial to discovery. Your lawyer can also provide
your case, your lawyer should thoroughly pre- you with key documents or witness
pare you for it. However, as with many other testimony received from the other side.
things in litigation, the extent of that prepara- And you should gather and review any
tion may depend on what you can afford. That documents you are to bring to the
is, if you are paying the lawyer by the hour, deposition. These reviews will help you
your finances might limit the time your lawyer focus on the subjects of questioning to
spends on this particular aspect of the case. If come and remember what you have
your lawyer is being paid on a contingency already sworn in writing.
fee basis, or is being paid by an insurance After you have reviewed this material,
company, the amount of time your lawyer you and your lawyer might want to go
spends helping you prepare will depend on over some of it together, to discuss any
whether your testimony will be crucial to the special areas of concern. Of course,
case. how this is donea long session in
Regardless of how much time your lawyer person, a written summary of concerns
can put into your preparation, there are a sent to your lawyer and a meeting in
number of things you can do to prepare your- response, or just a phone callmight
self, including: depend not only on the importance of
Highlight special areas of concern. Per- your testimony but also on how the
haps the first thing to do in preparing for lawyer is being paid and how much you
your deposition is to alert your lawyer can afford.
to any concerns you have about your Practice deposition. If there is time to
privacy or other privileged or sensitive arrange it and it is affordable for you,
information. (See Section VI.) Your lawyer your lawyer or another lawyer in the
can then advise you about the extent to same office might put you through a
which these matters must be disclosed, practice deposition. This gets you used
and you and your lawyer can discuss to the questioning process itself and
how to handle deposition questions familiarizes you with how your lawyer
4/38 THE LAWSUIT SURVIVAL GUIDE

can help out during the deposition pretty thick and fast. It is sometimes as
through the use of objections, digressions important to know when not to answer
and breaks for consultation. a question as how to answer. If you
Who conducts this practice deposition blurt out an answer before your lawyer
and how extensive it is will depend on has a chance to object to the question,
what you can afford. Preferably, your your answer will standand you might
lawyer can play himself or herself be forced to answer more questions on
during the practice run while someone the same subject. (See Section VI.)
else in the same firm plays the role of Before your deposition, try to get a feel
the lawyer from the other side. This can for how your lawyer will let you know
help get you used to answering questions when to immediately stop speakinga
posed by someone unfamiliaras well bark to Stop!, a kick to the shins, a
as to your own lawyers interventions raised hand. You should also ask your
and interruptions. Even if hourly billing lawyer how to stop the questioning
presents a financial pinch, it is almost yourself in order to consult with the
always worth doing at least a brief dry lawyer, if a question poses a particular
run, just to get the feel of things. problem for you.
Attend or view other depositions. An-
other thing you might do is attend another
deposition in the case. This can give you Section VI: Discovery Limits
a sense of the process and a feel for the
particular style of the opposing lawyers As explained in Section I, virtually any bit
who will question you. Alternatively, it of information that might have even a slight
may be possible to view a deposition on connection to the lawsuit is fair game for
videotape. A videotaped deposition in discovery. But this enormous latitude
the same case would provide the best sometimes leads to abuse. Lawyers pry into
preparationsame lawyers, same issues subjects that seem to have no legitimate
and some of the same questions. If there significance for the lawsuit, or that are
are no videotaped depositions from the private and confidential, serving only to
same case, your lawyer might have annoy or embarrass the parties. Fortunately,
videotape copies of depositions in other there are some legal limits on this kind of
cases. This will at least give you a sense probing, and some protections against
of the deposition process in general and public disclosure for material that must be
also, if your lawyer was involved, how revealed. This section discusses the kinds
he or she operates. of information a party or other witness may
Agree on ground rules. At a deposition, refuse to disclose during discovery.
questions and objections can come
DISCOVERY 4/ 3 9

48. Do I have to reveal my personal or Plaintiffs finances. If an individual or


business finances? business Plaintiff claims lost income as a
result of the Defendants conduct, the
In certain cases. The kind of financial infor- Plaintiffs recent income history is fair game
mation a witness has to reveal depends on in discovery. This includes information about
the type of case and the person from any specific lost business or business
whom the information is sought. opportunities, as well as earnings and related
information for the previous five or so
years (because average earnings over time
are often used to determine potential
You May Be Able to Prevent
earnings during the lost period). Similarly,
the Other Side From Revealing
if a Plaintiff claims that property has been
Material You Disclose
damaged, information pertaining to the
Even if you are required to disclose certain value of the property is discoverable.
information to the opposing side in a law-
suit, you may be able to keep them from
revealing it to anyone else. Some informa-
tion crucial to the other side in the lawsuit
might be embarrassing to you or damaging
to your personal or business reputation. Or,
it might be confidential information that
business rivals could use to their advantage,
sometimes referred to as trade secrets.
In such situations, you may be able to
have a judge require the opposing side to
keep the information strictly to themselves
that is, to the other party, opposing law-
yer and people working on the case for the
other lawyerand not reveal it to anyone
else. If you believe information heading to
the other side should be kept confidential,
alert your lawyer and ask the lawyer to
seek protection for the information. The
procedure for obtaining such a Protective
Order or Order Sealing Matters Produced
Upon Discovery is discussed in Chapter 5,
Section VII.
4/40 THE LAWSUIT SURVIVAL GUIDE

Defendants finances. The Defendant in a


You Waive It, You Lose It
lawsuit generally does not have to reveal
financial information to the Plaintiff. There This Section discusses the subjects you
are three standard exceptions to this general may protect from inquiries during discov-
rule. First, if the lawsuit seeks punitive ery. However, if you respond to a discov-
damagesan amount calculated to punish ery question or request without your
the Defendant for especially bad behavior lawyer raising a legal objection, you might
the Defendants financial information lose your right not to reveal this informa-
might be relevant to the amount of these tion. Your answer cannot be withdrawn
damages. For this reason, a Defendants after the fact. You might also have to an-
lawyer should attempt to have a punitive swer other inquiries into the same general
damages request thrown out of the lawsuit subject for the remainder of the lawsuit.
as early in the case as possible, before dis- This failure to assert your right not to an-
covery gets rolling. A Defendant is usually swer is known as waiving a privilege, or
also required to reveal any insurance cover- simply waiver.
age that might pay for damages. Disclosing Because of this problem of waiver, you
insurance information is intended to promote must alert your lawyer as soon as you
settlement because it gives the Plaintiff a believe that a question or request might be
realistic picture of the Defendants financial heading toward protected information.
backing. And a Defendants business records And before your own deposition, make
may be subject to discovery if the Complaint sure to discuss with your lawyer the sub-
alleges that the Defendant deceived a jects that might need protection, when
Plaintiff partner, shareholder or investor by they might arise and how you and your
cooking the books. lawyer will communicate if these issues
Non-partys finances. A witness who is come up.
not a party to the litigation is not usually Your lawyer will probably be aware of
required to reveal any personal or business the areas where this protection might be
financial information, except the existence needed. But you may know confidential
and nature of any financial relationship details that the lawyer does not, or you
with any of the parties to the lawsuit. Such may have a particularly strong feeling of
a relationship is discoverable because it privacy about a certain matter. In these
might influence the witnesss credibility circumstances, protect your own privacy
the ability and willingness to provide rather than waiting for your lawyer to
complete, accurate and unbiased information. speak upit may make the difference
between keeping the matter to yourself
and opening it up to everyone involved in
the lawsuit.
DISCOVERY 4/ 4 1

49. Can I keep my private


communications confidential?

Sometimes. Communications between


people engaged in certain relationships are
given a special legal protection known as
privilege. Courts and legislatures have
decided that the free flow of confidential
information in these relationships is so
important that it must be protected, even if
that information might be important to
others in a lawsuit. Under the law, no one
need disclose any information, verbal or employed by the doctor, keep private
written, that was confidentially exchanged any information confidentially disclosed
within the following relationships: in connection with medical diagnosis
Spouses. Confidential communications or treatment. In some jurisdictions this
between spouses are privileged. A privilege is limited to M.D.s only; in
party or other witness need not other jurisdictions, the privilege is
divulge the contents of any conversa- extended to some non-M.D. medical
tion or other communication with his and mental health practitioners and
or her spouse, and can prevent the clinical social workers. A Plaintiff who
spouse from disclosing a communica- is suing for personal injuries may not
tion even against the spouses wishes. claim this privilege for communications
If a couple divorces, the privilege still with a doctor who has diagnosed or
applies to communications made treated those or related injuries.
during the marriage, though not to Religious counsel. Sometimes referred
those made after its dissolution. The to as the priest-penitent privilege, this
spousal privilege is not usually avail- protects confidential communications
able to either spouse in family law between a member of the clergy and
cases (divorce, child custody and someone seeking spiritual counsel.
visitation) or lawsuits in which spouses Most courts only include within this
are suing each other. And in most privilege clergy who are members of
jurisdictions, the spousal privilege is mainstream religions. A client who re-
not available to couples who are not ceived counsel on subjects pertaining
legally married. to the lawsuit from a spiritual adviser
Doctor-patient. A patient has a right who is not a member of a traditional
to have a medical doctor, or anyone clergy should alert the lawyer to this
4/42 THE LAWSUIT SURVIVAL GUIDE

fact as early as possible in the lawsuit. the lawyer. This includes communica-
This will allow the lawyer time to pre- tions between representatives of a
pare a legal argument to support the business or organization and a lawyer,
claim of privilege, if one might exist. made in confidence for the purpose of
obtaining legal advice. The privilege
also applies to communications with
someone working for a lawyer, such as
Privilege Applies Only If
a paralegal or investigator. However,
Communication Was Confidential
the attorney-client privilege only applies
This section explains types of communica- to communications with lawyers in
tions that need not be disclosed during which the client is seeking legal advice.
discovery. But in order for any of these For example, many lawyers are directly
communications to be protected, they involved in business and finance matters
must have been made in confidence. That (by, for example, serving as board
is, they must have been made with the members of a corporation) and others
expectation that no one else would hear or give business and financial counsel that
read them. If they were not made in com- has nothing to do with legal advice.
plete confidence, they are not protected. Communications with them about non-
For example, if you and your spouse dis- legal business matters are not pro-
cuss sensitive personal matters but friends tected. Also, a persons communication
or relatives are in on the conversation, the with a lawyer who was representing
spousal privilege might not apply. Or, if someone elses interests at the time is
you and your doctor are at a party and you not privileged. Normally, a lawyer will
discuss your medical condition while others recognize more quickly than the client
listen in, the conversation might not be when to raise the attorney-client privi-
protected. Similarly, if you write a letter to lege in discovery matters. But if there
your clergy about personal problems but are written communications with other
also send it to a lay counselor or to elders lawyers in business files, the client
in the church, the letter might not be should alert the current lawyer to that
protected. fact. Also, if other people within a busi-
ness have communicated with lawyers
on behalf of the business, those people
Lawyer-client. All communications with should be identified for the current
a lawyer from whom legal advice is lawyer so that steps can be taken to
sought are privileged, whether or not ensure that those people do not di-
the person seeking advice actually hires vulge confidential material.
DISCOVERY 4/ 4 3

it covers, and the extent of its protection


Attorney Work-Product Privilege
varies considerably from state to state.
May Protect Your Work, Too
Nonetheless, familiarity with some privacy
The attorney-client privilege protects com- basics can prepare a litigant at least to alert
munications between lawyer and client. A his or her lawyer when privacy rights might
separate rule protects work done to pre- be threatened.
pare for or conduct litigation. This work- Roughly, the right to privacy protects
product protection, as it is called, includes those matters a person would not normally
work done by those employed by an attor- discuss or reveal to anyone outside of
ney, such as law clerks, paralegals and in- immediate familyand almost certainly
vestigators. In some jurisdictions, it also protects those matters a person would not
protects work the client does to assist with reveal to anyone other than a spouse,
or prepare for the litigation, even if that intimate partner or physicianunless they
work is not given or communicated to the are obviously relevant to the lawsuit. These
lawyer. This may include such things as generally include issues such as:
summaries of events, time-lines, notes and the body or health
questions, if you made them to help with sexuality
the litigation and not as part of regular spiritual or religious beliefs, and
personal or business records. If you have immediate family relationships.
prepared any such notes or other writings,
let your lawyer know so that the lawyer
may prepare to protect them from the 51. What should I do if the other side
other sides prying. tries to obtain private information?

If a discovery request or question asks a


party to reveal information on any of the
subjects listed in Question 50 and the party
50. How far into my private life is the wants the information to remain private,
other side allowed to pry? the party should discuss the matter fully
with his or her lawyer before deciding how
In recent years, courts have increasingly to respond. If a privacy-violating question
recognized that some aspects of personal is posed during a deposition and the
life should remain private, beyond the deponents lawyer fails to object, the
reach even of lawyers. But the right to deponent should not immediately answer
privacy is a fairly recent and still-developing but instead should ask to discuss the matter
notion. There is no clear definition of what privately with the attorney.
4/44 THE LAWSUIT SURVIVAL GUIDE

52. How do discovery disputes over precise nature of the harassment, regardless
privacy get resolved? of how personal and embarrassing that is.

If a party makes a privacy objection to a


discovery inquiry, the objecting party and
A Delicate Balance Can
the lawyers on both sidesand ultimately a
Sometimes Be Struck
judge, if disagreement over the matter winds
up in courtmust decide how much intru- The balancing act between protecting and
sion into private matters seems fair in the disclosing sensitive private information is
particular circumstances of the case. This often difficult. Both sides may have legiti-
means balancing the amount of intrusion mate concerns and interests, so a solution
into privacy against the importance of the that requires either full disclosure or com-
information to the lawsuit. In general, the plete protection of information may do
more sensitive the private matter, the more injustice to one side or the other. But these
protection it is given. Conversely, the more decisions do not always have to be all or
important the matter is to the lawsuit, the nothing. Instead, partial disclosures can
more likely the party will have to divulge it. sometimes be worked out, either by care-
This kind of balancing is often required fully limiting the subject to be discussed or
regarding the medical history of someone by censoringlawyers call it redacting
whose lawsuit claims a physical or emotional documents to protect certain information
injury. If a Plaintiff claims physical or emo- while revealing the rest. For example, if a
tional damage, the right of privacy may not letter discusses both business decisions
be used to completely block the other side and personal matters, it may be possible to
from learning the details of the Plaintiffs cut out those portions relating to personal
medical or psychological condition. In matters while leaving the business discus-
lawyers parlance, the Plaintiff has put his sion.
or her condition in issue. On the other Such compromises may be arranged
hand, the fact that someone has sustained a between lawyers, with the advice and con-
back or knee injury does not allow the sent of the client. Or, a judge may fashion
other side in a lawsuit to obtain records of a compromise if the matter winds up in
the injured persons psychological counsel- court. If your lawyer advises you that you
ing sessions or to ask about the Plaintiffs run a serious risk of being forced to dis-
sex lifeunless Plaintiff has claimed that close extremely sensitive information, you
the injury had psychological or sexual con- may want to support a compromise that
sequences. Similarly, if a Plaintiff claims protects as much of that information as
sexual harassment, he or she will probably possible.
have to go into explicit detail about the
DISCOVERY 4/ 4 5

53. Does the right against self- provided. For example, an interroga-
incrimination apply in a civil case? tory might ask for a description of
medical treatment received from a
Yes. A party to a civil lawsuit may invoke certain doctor even though medical
the constitutional right against self-incrimi- records of that treatment have already
nation if the information being sought might been provided. Such duplicate requests
be used as evidence against that party in a may be objected to as cumulative.
criminal prosecution. This is true even if a Equally available. Sometimes one side
criminal prosecution has not actually been in a lawsuit asks the other to produce
initiated. In civil litigation, this situation information to which both sides have
might arise if someone is accused of fraud, access. For example, in a lawsuit
embezzlement or breach of fiduciary duty, between two feuding former business
or when there has been a physical injury partners, a request for production of
that resulted from an assault or reckless be- documents from one partner might
havior, such as driving under the influence ask that the other produce all records
of alcohol or drugs. Once a criminal case of their joint business venture. If both
against a party or witness has ended, how- partners have access to the same
ever, the right no longer applies. business records, however, one side
might not have to do the work of
gathering that information for the
54. Can my lawyer object if the other other.
sides discovery requests ask for Excessively burdensome. This catch-all
too much information? category refers to requests that are far
too much work for the minimal useful
Yes. Certain discovery requests may be re- information they might produce. Courts
jected because they are just too big a pain try to strike a balance between the
in the neck. If the amount of searching a amount of work it takes to produce
party is asked to do seems to far exceed the information and the likely benefit
the value of the information sought to the to the side making the request. If a
other side, the party should check with his discovery request is challenged as too
or her lawyer to see if one of the following burdensome, a judge will consider the
objections would be proper: importance of the information sought
Cumulative. Many lawyers fail to keep to a fair resolution of the case, the
good track of what they receive amount of damages claimed (the big-
through various discovery processes. ger the case, the more discovery is
As a result, they sometimes ask for permitted) and the parties resources.
information that has already been A judge is more likely to require a
4/46 THE LAWSUIT SURVIVAL GUIDE

government agency or a big corpora- business to name all the people with
tion with plenty of resources to whom it has done any business in the
respond to a request for data than an past ten years might be considered
individual. Similarly, a party who has excessively burdensome. On the
computer access to records is more other hand, a request for a city gov-
likely to be forced to produce those ernment to produce records of all the
records than a party who would have accidents at a given intersection over
to search and gather records by hand. the past ten years is probably not too
For example, a request for a small much to ask.
Chapter 5

Motions and Other Court


Proceedings Before Trial

Section I: Motion Procedures ..................................................................................... 5/5


1. When may a party schedule a court hearing on a pretrial motion? ....... 5/6
2. How is a court date selected for a pretrial motion? .............................. 5/6
3. Can a motion be heard on very short notice? ....................................... 5/7
4. How does the moving party notify the court and the other
side about the motion? ......................................................................... 5/8
5. How does a party present its legal reasons for bringing or
opposing a motion? .............................................................................. 5/8
6. How are the facts of a case presented to a judge? ................................ 5/9
7. Are there other ways to get facts before a judge regarding a motion? ... 5/10
8. How must the notice of motion and accompanying documents
be delivered to the other party? .......................................................... 5/11
9. How do my lawyer and I decide whether to compromise
or fight a motion? ............................................................................... 5/11
10. How soon after receiving notice of a pretrial motion must
the opposing side decide whether to fight or to compromise? ............ 5/13
11. What documents does a lawyer prepare to oppose a motion? ............ 5/13
12. What happens to a motion if the lawyers agree to compromise? ........ 5/14
13. What judge conducts the court hearing on a motion? ........................ 5/14
14. Are the parties stuck with the judge who is assigned to
hear the motion? ................................................................................. 5/14
15. Is it always necessary to wait until the hearing on the
motion to learn of the judges decision? ............................................. 5/15
16. What is the procedure at a pretrial court hearing? .............................. 5/17
17. How does a judge inform the parties of the decision? ........................ 5/18
5/2 THE LAWSUIT SURVIVAL GUIDE

18. Is there any way to get a judge to change the decision


announced at the hearing? ................................................................. 5/19
19. When does a judges pretrial decision become final? ......................... 5/19
20. If my pretrial motion is denied, can I file it again? .............................. 5/20
21. Is it possible to appeal right away to a higher court about
a ruling on a pretrial motion? ............................................................. 5/20
22. If an appeals court agrees to review a pretrial decision, does
the lawsuit continue while the appeals court considers the case? ...... 5/21
Section II: Restraining Orders and Injunctions .......................................................... 5/21
23. When do courts issue restraining orders and injunctions? .................. 5/22
24. What is a Temporary Restraining Order (TRO)? .................................. 5/23
25. How does a judge decide whether to issue a TRO? ............................ 5/23
26. What is the process for obtaining a TRO? ........................................... 5/24
27. How long does a TRO last? ................................................................ 5/25
28. What is a Preliminary Injunction? ....................................................... 5/25
29. When is a Preliminary Injunction appropriate? .................................. 5/26
30. How does a judge decide whether to issue a
Preliminary Injunction? ...................................................................... 5/27
31. Does the granting of a Preliminary Injunction indicate
what a judges final decision in a case would be? .............................. 5/27
32. Are there any protections for the Defendant in case it turns
out that the injunction was improperly issued? ................................... 5/28
33. How does the procedure used for Preliminary Injunctions
compare with that used for TROs? ...................................................... 5/28
34. Once it is in place, is there any way for a Defendant to
get out from under a Preliminary Injunction? ..................................... 5/29
Section III: Motions to Secure Assets: Lis Pendens, Attachments and Receiverships ...... 5/29
35. What is a lis pendens? ........................................................................ 5/29
36. What is an Attachment? ...................................................................... 5/30
37. What is a Receivership pendente lite? ................................................ 5/30
38. How does a Receivership pendente lite work? ................................... 5/30
Section IV: Motions to Expand, Narrow or Move a Lawsuit ........................................ 5/31
39. What does it mean to consolidate lawsuits? ....................................... 5/31
40. When can a judge order consolidation? ............................................. 5/31
41. When may a party request that lawsuits be consolidated? .................. 5/32
42. If lawsuits are consolidated, is there just one trial? ............................. 5/32
43. What is a Motion to Sever? ................................................................. 5/33
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 3

44. What sorts of cases are likely to be severed? ...................................... 5/33


45. Can the conduct of a party justify severing its case
from other parties? .............................................................................. 5/34
46. What is venue and how can it be changed? ....................................... 5/34
47. What factors does a judge consider when deciding
whether to order a change of venue? .................................................. 5/35
48. At what point in a case is a judge likely to grant a change of venue? .... 5/36
49. Can publicity about a dispute justify a change of venue? ................... 5/36
50. Is it possible to move a lawsuit to another state? ................................ 5/37
Section V: Plaintiffs Motions for Default ................................................................... 5/38
51. Can Plaintiff win a Judgment if the Defendant fails to
respond to the Complaint? .................................................................. 5/38
52. How does the Plaintiff go about getting a Default Judgment? ............. 5/38
53. How might the Defendant escape a Default Judgment? ...................... 5/39
54. If a Defendants Default is not set aside by a judge, how
does it become a final Judgment for Plaintiff? ..................................... 5/39
55. Once a Default Judgment has been entered against a
particular Defendant, is the case over for that Defendant? ................. 5/39
56. If a Defendant files an Answer but later fails to respond
to legal procedures, may the Plaintiff obtain a Judgment
without going to trial? ......................................................................... 5/40
Section VI: Defendants Motions to Dismiss ............................................................... 5/40
57. When might a judge dismiss the Plaintiffs case prior to trial? ............ 5/40
58. How can a Defendant get a dormant lawsuit dismissed? .................... 5/41
59. What factors does a judge consider when deciding whether
to dismiss a lawsuit for failure to prosecute? ....................................... 5/41
Section VII: Discovery Motions ................................................................................... 5/43
60. Do judges regularly monitor discovery? ............................................. 5/43
61. Does a lawyer have to get court permission to use certain
discovery procedures? ........................................................................ 5/44
62. Can my lawyer ask a judge to protect me from the other
sides overreaching discovery requests? .............................................. 5/44
63. Can my lawyer go to court to force the other side to provide
more or better information? ................................................................ 5/45
64. Can someone be held in contempt of court for dodging
a legitimate discovery request? ........................................................... 5/46
65. How can a court punish a party for abusing the discovery process? ... 5/47
5/4 THE LAWSUIT SURVIVAL GUIDE

Section VIII: Motions for Summary Judgment and Summary Adjudication ................... 5/48
66. What is Summary Judgment and when is it appropriate? .................... 5/48
67. Who is permitted to make a Summary Judgment Motion? .................. 5/49
68. When may a Summary Judgment Motion be made? ........................... 5/49
69. How does a party present a Summary Judgment Motion to a judge? .... 5/51
70. How does a party oppose a Summary Judgment Motion? ................... 5/51
71. Who has the last word, the Plaintiff or the Defendant? ....................... 5/53
72. What are a judges options when considering a Motion
for Summary Judgment? ...................................................................... 5/53
73. May a judge declare one party to have won certain issues
in a case without deciding the whole case? ........................................ 5/54
74. How does the procedure for a Partial Summary Judgment
(Summary Adjudication of Issues) compare with a motion
requesting full Summary Judgment? .................................................... 5/54
75. Why file a Partial Summary Judgment Motion if the lawsuit
will continue anyway? ........................................................................ 5/54

How You Can Help Your Lawyer

Seek a TRO ............................................................................................. 5/25


With a Motion for Change of Venue ....................................................... 5/36
With a Summary Judgment Motion ......................................................... 5/52
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 5

M
ore than 95% of all lawsuits end replying to the other sides opposition
without ever going to trial. In papers
most, the parties reach a com- appearing in court to argue the matter,
promise settlement. (See Chapter 8.) But and
many litigants will not move toward com- preparing a written order that reflects
promise until they are pushed. A significant the judges decision.
factor in changing the parties views of their Whoever makes a motion is knownfor
caseand therefore their willingness to that procedure onlyas the moving party.
compromiseis the outcome of pretrial Whoever opposes a motion is called the
court proceedings in which a judge makes opposing party. The opposing party also
decisions that affect the shape of the lawsuit. files written argumentscalled opposing
A pretrial court ruling might even make paperspresenting reasons why the judge
compromise unnecessaryin some instances, should not grant the motion.
a judge declares one side the winner with-
out a trial ever taking place. These rulings
are generally based on motions (requests) You Can Appeal Any Motion
made by either party. That Ends the Lawsuit
Section I of this chapter explains the
Several motions discussed in this chapter
general procedures for bringing pre-trial
may lead to a final Judgment for one party
motions. The remaining sections explain
or the other: in other words, an end to the
the most common and important specific
lawsuit. A Motion for Default Judgment
pretrial motions.
may end the lawsuit in favor of the Plain-
tiff, a Motion for Dismissal may lead to
Judgment for Defendant and a Motion for
Section I: Motion Procedures Summary Judgment may end the lawsuit in
favor of either side. A Judgment following
When a lawyer for any party wants a judge
one of these motions has the same legal
to decide a litigation disputein legal
effect as a victory after trial.
parlance, to rule on a motion or make a
Once any Judgmentincluding a Judg-
rulingthe lawyer must follow certain
ment following a motionis entered, the
procedures, which include:
losing party has the right to appeal to a
setting a time for the parties to be in
higher court. However, that appeal must
court
be filed within a set time limit. When and
filing a written notice and legal
how to file an appeal, and some tips on
argumentsknown as moving
choosing the right appellate lawyer, are
papersand sending them to the
discussed in Chapter 10, Section II.
other parties
5/6 THE LAWSUIT SURVIVAL GUIDE

1. When may a party schedule a court Lawyers Must Meet and Confer
hearing on a pretrial motion? Before Heading to Court
Many courts have a rule that, before filing
The moving party must give the opposing
a motion, a lawyer must meet and confer
party adequate time to prepare for a hear-
with the lawyer on the other side to see if
ing and, if the party desires, to file respon-
they can resolve the matter between them-
sive papers. Each court can set its own time
selves. The idea is to get lawyers to settle
limits for motions. Usually, a court hearing
small wrangles rather than always taking
must be scheduled no less than 15-20 days
the most antagonizing, time-consuming
after the date the moving papers are served
and expensive route of asking a judge to
on the opposing party (see Question 4). The
decide them. In some courts, the meet-and-
moving party need not consult the opposing
confer requirement applies to all motions.
party as to the date for the hearing. Many
In other courts, it applies only to squabbles
lawyers do, however, since legitimate prior
over discovery. (See Chapter 4.) The
commitments on the part of the opposing
meeting itself can be merely a phone
lawyer would probably result in the hearing
call during which one lawyer tells the
being rescheduled by the court.
other about the motion that is planned,
and the lawyers discuss whether they can
reach a compromise.

2. How is a court date selected for a


pretrial motion?

In some courts, a lawyer may pick any date


at all for a hearing, as long as it gives the
other side the required minimum time to
respond. However, in busy courts, the
motion may not be heard until the court
has an available datewhich might be later
than the moving party would prefer. And in
many courts, certain kinds of motions are
only heard in certain courtrooms, and only
on certain days of the week.
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 7

prepare an Application for Order


Delays May Drive You Nuts
Shortening Time, which explains why
Three little words make many clients see the shorter period is necessary
redIt was continued. A continuance is notify the other parties of this request,
the postponement of a scheduled court and of when the lawyer will go to
proceeding. Continuances are common court to seek a judges permission,
and occur for a variety of reasons, includ- and
ing illness, unavoidable conflicts with other make a special trip to court to explain
scheduled court cases or even because the to a judge the need for the shorter
judge is tied up with other matters. Most notice time.
continuances are unavoidable. However, A judge might permit the shorter time if
some occur because one attorney finds the there is good cause, meaning a likelihood
date inconvenient and the other attorney of some harm to the requesting partys case
agrees to a continuance out of courtesy. If if the normal waiting period is required.
the word continuance is becoming too But the judge will also consider whether a
common in your case, raise the matter shorter time period would be unfair to the
with your lawyer. Knowing how you feel other side. And the judge will consider who
may stiffen your lawyers attitude towards created the emergency. If the rush was
any future requests for a continuance. caused by the requesting lawyers or
clients failure to do something in a timely
manner, the Order Shortening Time is less
likely to be granted.
3. Can a motion be heard on very
short notice? Who Pays for Seeking an Order Short-
ening Time? If you are paying hourly
Sometimes the normal 15-20 days notice legal fees and you are billed for hours spent
required for a motion hearing may harm a seeking an Order Shortening Time, you may
clients case. For example, a lawyer may want to find out why. If the lawyer had to
need a judges ruling on whether the other prepare extra papers and make a special trip
side must produce a key document before to court just to make up for the lawyers own
an upcoming deposition. (See Chapter 4.) tardiness or commitment to other cases, you
In this and innumerable other situations, a rightly may ask why you should have to pay
lawyer may go to court and ask for permis- for it. On the other hand, if it is simply the
sioncalled an Order Shortening Timeto result of an unexpected but all-too-common
schedule a motion sooner than the normal twist and turn of litigation, you will just have
waiting period would allow. To obtain such to accept it as another reason lawsuits cost so
a court order, the lawyer must: much.
5/8 THE LAWSUIT SURVIVAL GUIDE

4. How does the moving party notify The points in Points and Authorities are
the court and the other side about the legal arguments that a lawyer makes in
the motion? support of his or her side. For example, a
request by a Defendant that Plaintiff turn
A party starts the process of obtaining a over income records would be supported
court hearing by filing a Notice of Motion or in the Points and Authorities by an argument
an Application for Order (in some courts, it about why the information was needed.
is referred to as the motion itself). For The term authorities refers to specific
example, to have a judge rule on whether to lawsfederal and state statutes, county and
dismiss the Complaint, a Defendant would city ordinances, administrative regulations
file a Notice of Motion to Dismiss Plaintiffs and local rulesand prior court decisions
Complaint. To ask a judge to force the that support the points. So, the Defendant
other side to answer interrogatory questions, seeking Plaintiffs income records would
a party would file a Notice of Motion to include in the Points and Authorities specific
Compel Defendants Response to Interroga- reference to the laws and cases that support
tories. To ask a judge to stop the other a Defendants right to see the Plaintiffs
side from harassing a party, an Application financial records.
for Protective Order would be filed. The lawyer for the party opposing the
The notice or application tells when and motion would file a responsive Memorandum
wheredate, time and courtroomthe court of Points and Authorities, citing different
hearing will be held. It also briefly describes laws and court decisions that restrict or
what the lawyer is requesting. However, the prohibit financial disclosure or protect
notice or application doesnt go into detail: certain personal financial information.
that is done in other documents filed with
the court at the same time as the notice Researching and Preparing Written
(see Question 5). Legal Arguments Can Get Expensive.
Sometimes, a lawyer can bang out in an hour
a short, simple Memorandum of Points and
5. How does a party present its legal Authorities in support of a pretrial motion.
reasons for bringing or opposing Many issuesrelating to discovery, for
a motion? examplecome up repeatedly in a lawyers
litigation practice. Writing a Memorandum on
A lawyer who files a notice of motion or these issues may be a simple matter of cutting
application also must file what is officially and pasting from Memoranda used in earlier
called a Memorandum of Points and Authori- cases. But sometimes writing a good Memo-
ties. A lawyer opposing a motion also files randum on an important matter in the case
a Memorandum of Points and Authorities. takes time and effortto organize facts,
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 9

research laws and write a clear and persuasive


A Sworn Statement Is Not
argument. Although a carefully prepared
Necessarily Acceptable Evidence
Memorandum can generate substantial legal
fees, it can also be among the most effective Putting information in a sworn statement
uses of a lawyers time and a clients money. does not guarantee that the information
If you are paying hourly attorney fees, you will be accepted as evidence. An opposing
and your lawyer should discuss ahead of time party may object that the information, in
any motion that will require lots of research the form presented, violates some legal rule.
and writing. Together, you can then balance The judge deciding the motion must then
the cost of that work against the odds and determine if the information qualifies as
potential benefit of winning the motion. If the proper evidence. For example, a declarant
odds of winning the motion or the benefits of might claim in a declaration that someone
winning are slight, your lawyer may be able to else knew something on a particular date.
do the motion with less extensive, and thus But such a claim violates a legal rule
less expensive, research and writing. prohibiting speculation about someone
elses state of mind, and so would not be
considered as evidence.
6. How are the facts of a case If a judge finds that certain information
presented to a judge? in a declaration or affidavit is not admis-
sible evidence, that does not disqualify the
A Memorandum of Points and Authorities in entire declaration, nor does it necessarily
support of a motion (see Question 5) argues doom the motion. Instead, the judge con-
that, based on certain facts and rules, a judge siders whatever valid evidence there is in
should make a particular ruling or decision. the declaration, along with other proper
The judge has law books to check on the evidence presented, in deciding whether
rules. But how does the judge know the facts to grant the pretrial motion.
of the case that pertain to the motion? That
is the role of the declaration or affidavit.
Often, the declaration or affidavit is made
A declaration or affidavit is a sworn
by one of the lawyers in the case. For
written statement. The person making the
instance, it might be used to tell a judge
statementknown as a declarant or affi-
about what one of the lawyers has or has
antstates under oath that the information
not done, such as failing to confer with the
contained in it is true. At trial, such a sworn
other side before filing the motion or refus-
statement usually may not be used in place
ing to produce Answers to Interrogatories
of live testimony. But for a pretrial motion,
or other discovery (see Chapter 4).
a sworn statement is the legal equivalent of
a witnesss testimony in court. Sometimes a lawyer prepares a declaration
or affidavit for his or her client to sign. A
5/10 THE LAWSUIT SURVIVAL GUIDE

partys own sworn statement might be seeking to compel more complete answers
needed to describe or identify something to discovery might attach the other partys
the party has seen, heard or donefor ex- responses to interrogatories to show that
ample, to identify a contract, letter or other the original answers were incomplete. In
document the party had signed or received. some rare circumstances, a judge will ask
A sworn statement may also be made by a or permit a witness to testify in person at
third party: an independent witness, lawyers the pretrial court hearing. (See Question 16.)
investigator or expert, for example. Sometimes, there are facts that no one
disputes but that would be very difficult or
expensive to prove. For example, it might
Your Sworn Statement Is a be necessary in an accident case to estab-
Permanent Commitment lish that Main Street and Broadway intersect
at a certain point. But proving it would
Once you sign a declaration or affidavit
require time and money.
and your lawyer files it with the court, it
Fortunately, the courts have created a
becomes a permanent part of the case. For
simple procedure for proving this type of
the rest of the lawsuit, what you said in the
fact. It is called judicial notice, and it per-
statement will be considered your word on
mits a judge simply to officially declare
the matter, just as if you had spoken from
noticethat a fact is proven. In order to
the witness stand in open court. For that
have a judge take judicial notice of a fact,
reason, you must be careful about what
a lawyer must file a Request for Judicial
you put in a declaration or affidavit. If you
Notice setting out exactly what the court is
have any question about the accuracy of
being asked to officially recognize and
what you are writing in such a statement
some basis for recognizing it. The categories
(or what your lawyer has written for you),
of facts that may be judicially noticed vary
be sure to go over it with your lawyer and
a bit from state to state, but generally
explain your concerns before you sign it.
include:
the contents of government rules,
regulations and files (not the truth of
what a document states but only that
7. Are there other ways to get facts it is part of a particular official file)
before a judge regarding a motion? universally accepted truths about the
physical world (the sun has long set
Facts to support a pretrial motion can al- by 9:00 p.m. in December), and
most always be established by declarations general knowledge about local condi-
and affidavits, and by the documents to tions (1st Street and 2nd Street run
which they refer. For example, a party parallel to each other).
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 1 1

8. How must the notice of motion and Chapter 3), legal papers may be served on
accompanying documents be that partys lawyer by regular mail, and in
delivered to the other party? some states by fax.

Once the hearing date is scheduled and the


moving papers are prepared, the lawyer for The Moving Party Has
the moving party files those papers with the Final Word
the court and delivers copies to lawyers for
The party opposing a motion has the
all the other parties. All parties must be
opportunity to file a written argument
given the notice, even if the motion or
against it, usually up to five days before
application is directed at only one other
the hearing date. The lawyer who filed the
party. Copies do not have to be delivered
motion then has a last shot, a written
to the parties themselves, unless they have
Reply to Opposition in which the points
no lawyer. And delivery itself is simple.
raised by the other side may be countered.
Once a party is officially part of a case (see
This reply is not supposed to introduce
new legal arguments that were not in the
original motionit can only reply to what
the opposition has argued.

9. How do my lawyer and I decide


whether to compromise or fight
a motion?

When one party files a motion or applica-


tion, the other side has two choices. The
lawyer for the other side may try to settle
the matternot the whole lawsuit, neces-
sarily, but the specific litigation dispute in-
volved in this motionbefore and instead
of going to court over it. Alternatively, the
lawyer may formally oppose the motion or
application by filing responsive papers and
arguing the matter in court.
5/12 THE LAWSUIT SURVIVAL GUIDE

Most often, lawyers simultaneously pursue compromise when other disputes


both paths, preparing a written opposition ariseand eventually more willing to
in the event a compromise is not reached. settle the entire case.
In deciding whether to compromiseand Possibility of compromise. No matter
how much to concede in doing sothe how much one side is willing to
opposing lawyer and client must consider a compromise, nothing will come of it
number of factors: unless the other side will bend a bit,
Likelihood of getting a good decision too. On some matters, there may be
from a judge. Obviously, the better the plenty of room to maneuver. For
chance of winning, the less likely the instance, one side may be able to
opposing side is to compromise a give the other much of what it wants
motion. However, there is almost without hurting its own case, and
always at least some small chance of may also get concessions in return.
a judge ruling in an unexpected way. On the other hand, sometimes a
If a compromise would be simple, motion leaves little room for compro-
cost much less than going to court mise. A motion to dismiss the entire
and cause no harm to the clients lawsuit, for example, might offer no
case, the lawyer and client may want option other than settlement of the
to consider it despite good odds of whole case.
winning in court. Cost of fighting the motion. Opposing
Wanting to show capacity to litigate. a motion can be expensive. If the
On the opposite extreme of willing- motion is not particularly important
ness to compromise in the face of and a painless compromise would be
victory is willingness to fight in the easy to reach, it may not make sense
face of defeat. Particularly early in a to spend lawyer hours and expenses
case, when each side is still feeling to fight the motioneven if there is a
out the other, it may be worth fight- good chance of winning. Particularly
ing the other sides motion simply to if the client is paying by the hour,
show the capacity and will to put up whether and how hard to fight the
a court fight if necessary. Forcing the other sides small-time motions may
moving party to spend time and money be a financial question rather than a
on a court hearing might demonstrate legal one. Cost may be the deciding
that the opposing party will not merely factor for motions regarding compli-
roll over every time the other side ance with discovery requests (see
threatens to go to court. And that may Chapter 4) and those concerning the
make the other side more willing to scheduling, rather than the substance,
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 1 3

of proceedings. If the client is paying Your Lawyer May Need


by the hour, it is particularly impor- Extra Time to Respond
tant for client and lawyer to consult
Normally, a client does not like to hear
before the lawyer plunges ahead with
that a court hearing or other procedure has
a full-blown opposition to a motion
been postponed. But sometimes its in
filed by the other side.
your interest for your lawyer to obtain a
Delay caused by going to court. Some-
continuance. Often a motion from the
times fighting a motion is just not
other side comes as a surprise, or is
worth the delay it causes. For example,
scheduled for a time when your lawyer is
there might be a dispute over which
committed to other work, on vacation or
documents are to be brought to an
out sick. If so, the normal time to prepare
upcoming important deposition. If the
a response15 to 20 daysmay not be
parties fight that all the way to court,
enough to do a good job. Your lawyer may
the deposition may have to be re-
and should try to have the court date post-
scheduled, perhaps months later. And
poned, providing more time to prepare an
that delay may reverberate through
opposition. The moving party might agree
the entire case by setting the whole
to the postponement. If not, a judge will
discovery schedule back.
probably grant it if the reasons seem
sound.

10. How soon after receiving notice of


a pretrial motion must the opposing
side decide whether to fight or to
11. What documents does a lawyer
compromise?
prepare to oppose a motion?
Negotiations to compromise may continue
right up to the moment the motion is called To respond to a motion, a lawyer files a
in court. A moving party that seemed Memorandum of Points and Authorities in
unwilling to compromise when it filed its Opposition. This document takes the same
motion might soften after seeing the other form as the Points and Authorities filed in
sides written opposition. Or, the opposing support of the motion. (See Question 5.)
lawyer may be more (or less) willing to The opposition memorandum might oppose
compromise after researching the legal the motion on technical groundsfor
issues involved. example, it might argue that the motion
was filed late or is incomplete. It also may
oppose the motion on the merits, that is,
argue that the facts, laws and prior court
5/14 THE LAWSUIT SURVIVAL GUIDE

decisions do not support the motion. As 13. What judge conducts the court
with the Memorandum of Points and hearing on a motion?
Authorities in support of the motion, the
opposition memorandum may introduce The judge who hears and decides a motion
facts through declarations and affidavits. or application may not be the same judge
who would preside over the trial, if there is
one. In what are called direct calendar
12. What happens to a motion if the courts (including most federal courts), one
lawyers agree to compromise? judge is assigned to a case at the outset.
That judge hears all matters in the case,
If the lawyers for both sides work out a including pretrial motions and trial.
compromise, they will prepare documents In what are called master calendar
that memorialize the agreement. This may courts, however, certain judges are spe-
simply be a letter from one lawyer to the cially assigned to hear all pretrial motions
otherknown as a letter agreementspell- for all cases. These judges do nothing but
ing out the terms of the compromise. If hear pretrial motions, in a courtroom usually
either side fails to live up to the bargain as called the law and motion department. In
the lawsuit continues, the other side may a master calendar court, a lawyer must
ask the court to enforce the agreement. schedule a pretrial court hearing according
In some situations, the lawyers do not to the particular calendar of the law and
rely on an informal letter agreement. In- motion court. If a lawsuit winds up going
stead, they draw up a paper called a stipu- to trial in a master calendar court system, a
lation, which spells out the compromise. different judge would then preside.
Unlike a letter agreement, a stipulation is
immediately filed with the court. A stipula-
tion might be used when the agreement 14. Are the parties stuck with the judge
involves important rights or when the who is assigned to hear the motion?
lawyers just dont trust each other.
Once the compromise has been put on Two mechanisms permit a party to ask that
paper, the lawyer for the moving party a particular judge be removed from the
contacts the court and asks that the hearing casea challenge for cause and a peremp-
be taken off calendar, which means that tory challenge. A challenge for cause is
the motion wont be heard as scheduled. available any time, in any court, whenever
Taking the motion off calendar does not information about, or comments or conduct
preclude the lawyer from filing it again, if by, a judge indicates that the judge may not
for some reason the compromise falls be entirely impartial. However, its not wise
apart. to accuse a judge of bias unless there is
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 1 5

strong proof of it. A judge who is unsuc- Pretrial Disputes May Be Decided by
cessfully challenged may be resentful. As Court Personnel Other Than Judges
the old saying goes, If you shoot at the
In large court systems, many pretrial dis-
Emperor, dont miss.
putes are referred for hearing to judicial
Some jurisdictions also permit a party to
officers whose position is slightly lower
make a peremptory challenge, in which a
than judge. These court officials may be
party does not need to give any reason for
called magistrates, court commissioners,
asking that a judge be removed. The mere
referees, special masters or the like. They
challenge is enough to have the hearing
most often handle routine but time-con-
transferred to another judge. A peremptory
suming pretrial matters, especially disputes
challenge against a specific judge must be
over discovery. (See Chapter 4.) Although
exercised as soon as that judge is assigned
these officials may not have the experi-
to hear any part of the case. A party may
ence and expertise of a judge, they are ex-
not wait to see how a judge acts in the case
perts in the small areas of law with which
before exercising a peremptory challenge.
they deal every day. And they are more
And if it is permitted at all, only one
likely than judges to listen at length to in-
peremptory challenge per case is allowed
person argument from lawyers.
per party. So in master calendar jurisdictions,
lawyers usually reserve their one peremp-
tory challenge for the judge assigned to
hear the trial, if needed, rather than for a
15. Is it always necessary to wait until
judge hearing less important pretrial matters.
the hearing on the motion to learn
of the judges decision?

In some courts, a judge may make a pre-


liminary decision, called a tentative ruling,
regarding a pretrial motion. These rulings
are issued a day or so before the hearing
date, based solely on the papers filed by
both sides. The lawyers can call a special
court telephone number to hear if there is a
tentative ruling for their case. Increasingly,
lawyers can also find tentative rulings on
the courts website. The purpose of these
tentative rulings is to save court and lawyer
timethe lawyers might skip the hearing
5/16 THE LAWSUIT SURVIVAL GUIDE

unless one of them has something extra to in person before the judge. If either lawyer
tell the judge that was not included in the decides to appear in court after a tentative
papers already filed. ruling, that lawyer must notify all other
If neither side chooses to go to court for parties, and the court itself, of the intent to
the hearing, the judges tentative ruling will show up for the hearing. In that case, the
become final on the hearing day. However, tentative ruling may not become final until
either side may choose to argue the matter the judge hears from the lawyers in person.

Should My Lawyer Insist on a Hearing?

If a tentative ruling on a pretrial motion is whether there is enough chance of a change


completely in your favor, there is no reason to justify appearing at the hearing. That de-
for your lawyer to show up if the other side cision will depend on several circumstances:
doesnt intend to go. If the other side does the tentative ruling might indicate that
decide to argue its case, however, your law- the judge misunderstood something
yer should be there to argue in support of about the motion, which your lawyer
the tentative ruling. might be able to straighten out in per-
If the tentative ruling goes against you, son
your lawyer shouldnt contest it unless there the tentative ruling might indicate that
is some likelihood of winning. Especially if the judge is willing to hear more from
you pay by the hour, you dont want your the lawyers on a certain point, or that a
lawyer to go sit around the courthouse for certain part of the ruling is incomplete
no good purpose while the attorney-fee or may be modified
meter is running. Even a simple one-minute the subject of the judges ruling might
appearance before a judge can use up half a be so important that any possibility of
day of attorney timethere are often many changing the judges mind is worth the
cases set for the same time in any given effort
courtroom, and your lawyer might not be the ruling might not be important
able to tell exactly when your case will be enough to justify the added attorney
called. time (and fees), or
On the other hand, even if the judge isnt your lawyer may know that the particu-
likely to entirely reverse the decision, there lar judge who is hearing the case
may be some room for modifying it slightly rarelyor frequentlychanges his or
in your favor. So, your lawyer must decide her tentative rulings.
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 1 7

Should You Appear at a


Pretrial Hearing?
You have a right to be present at any court
proceeding in your case. But do you want
to bother? The answer is mostly a matter of
time and taste. If you dont mind traveling
to court and perhaps sitting around for
hours, only to hear the lawyers and judge
speak legal mumbo jumbo for a minute or
two, then it may be worth it to you. You
may see how your lawyer performs, how
the other lawyers act and how a judge
16. What is the procedure at a views your case. But the likelihood of see-
pretrial court hearing? ing or hearing something useful to you
that is, more than what your lawyer could
The exact procedure for a hearing on a explainis probably small. On the other
pretrial motion usually is determined by a hand, some court hearings may be so
combination of statewide Rules of Court, important that you want to be there to see
supplementary rules of the local court and, and hear whatever happens.
importantly, the habits of the particular
judge who conducts it. Some judges run
their courtrooms informally; others have Whatever the local rules and the court-
very strict rules. Some judges like to give room quirks of particular judges, most hear-
lawyers an opportunity to argue their cases. ings involve the same few basic steps. The
Other judges want to hear as little argument moving party is usually given an opportu-
as possible. In crowded urban courtrooms, nity to speak first. Then the opposing law-
a hearing might be one of dozens scheduled yer has a chance to respond. The argument
for the same time. A lawyer may have to is usually brief; judges do not want lawyers
wait hours before actually getting to speak, to repeat what was in the written papers. In
then the argument may be limited by the addition to the lawyers initial remarks, the
judge to a minute or two. In less crowded judge might ask them questions about the
courtrooms, or those in which each hearing law or facts. The process tends to be quicker
is given a precise time, a lawyer might if there has been a tentative ruling (see
know exactly when to appear, be given a Question 15). In that case, the lawyer for
full opportunity to argue the case and be in the party who lost the tentative ruling will
and out of court in less than an hour. start the proceedings by explaining why the
5/18 THE LAWSUIT SURVIVAL GUIDE

judge should change his or her mind; the 17. How does a judge inform the
other lawyer may not need to speak at all. parties of the decision?
When the issue being decided will have a
major impact on the lawsuit, judges tend to Following the lawyers argument at a pre-
give the lawyers more time to argue. trial motion hearing, one of several things
might happen. The judge might want to
hear more from the lawyers before issuing
a decision, in additional written arguments,
Only the Lawyers Are Heard From
documents or even a further hearing. More
In the vast majority of pretrial hearings, the often, the judge issues a decision immedi-
judge only considers the evidence that was ately, ruling from the bench (meaning in
included with the papers that request or the courtroom, immediately following the
oppose the motion. No party or other lawyers arguments). Typically the decision
witness testifies in person. In a few excep- will be that the motion is granted, denied,
tional situations, however, a judge will or granted in part and denied in part. In a
permit, or ask for, in-person testimony at a few courts, a judge might read from the
pretrial hearing. Because such a special bench a written decisioncalled an
evidentiary hearing, as it is called, takes intended rulingthat has been prepared
longer than other hearings, it is specially ahead of time but is subject to modification
scheduled for a time when the judge is before it becomes final. (See Questions 18
free to hear it. If this is going to happen in and 19.) The judge might invite the lawyers
your case, you will know about it ahead of to submit written proposed modifications to
time. the intended ruling, some of which the
Evidentiary hearings are most often held judge might incorporate in the final ver-
when the judges ruling might affect a sion.
partys conduct beyond the lawsuit itself, Rather than announce the decision in the
such as with an Application for a Tempo- courtroom, the judge may delay the deci-
rary Restraining Order or Preliminary sion to consider the matter further. This is
Injunction. (See Section II.) They are also called taking a matter under submission. If
used on occasion to settle technical the judge takes the motion under submission,
matters that are difficult to assess through the decision will come later in the form of
documents alone, and in which a judge a judges Notice of Ruling. In a very few
wants a chance to ask direct questions. For unusual or complicated matters in federal
example, a judge might want to hear the court, a judge might also issue a written
testimony of an expert about whether Opinion, in which the reasons for the deci-
certain crucial but fragile evidence could sion are explained.
be safely tested.
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 1 9

18. Is there any way to get a judge to Do Judges Ever Admit


change the decision announced at Their Mistakes?
the hearing?
On rare occasions, a judge may reconsider
a decision if a party shows that the judge
Before a judges ruling becomes final (see
clearly made a mistake regarding rules,
Question 19), and in some courts for a cer-
laws or controlling court decisions, or
tain period after it has become final, a party
about a clearly established fact in the case.
may ask the judge to change the decision.
However, this happens only if the judge
This is done by filing a document called a
based the decision on an obvious factual
Motion (or Request) for Reconsideration or
or legal error, not merely because the
a Motion for Rehearing. The same judge
losing side thinks the judge should have
who made the initial decision also decides
reached a different conclusion.
this motion.
Reconsideration is rare: judges tend not
to change their minds soon after making a
decision. However, a Motion for Reconsid-
19. When does a judges pretrial
eration has some small chance of success if
decision become final?
a party comes up with new facts that might
have affected the judges decision had they
been presented in the original motion. The Regardless of how a judge announces a
facts must have been discovered after the pretrial ruling, it must be reduced to writing
original papers were filed, and the failure and signed by the judge before it becomes
to have previously discovered them must an official court order. In most courts, the
not be the fault of the party asking for the moving party will have submitted a pro-
reconsideration. posed court order along with all the other
motion papers. If the judges ruling is ex-
actly what the moving party requested, the
judge may simply sign the proposed order,
which then becomes final. A judge may
also modify the proposed orderoften
handwriting minor changes right on the
documentbefore signing it.
If the judges final decision varies signifi-
cantly from the proposed order, another
order must be prepared after the hearing.
This order, which must reflect exactly what
the judge has ruled, is drawn up by which-
5/20 THE LAWSUIT SURVIVAL GUIDE

ever side won the motion. In many courts, 21. Is it possible to appeal right away
the party preparing the order must show it to a higher court about a ruling on
to the other side for review, to make sure it a pretrial motion?
conforms precisely to what the judge de-
cided, before it may be submitted to the If a party loses an important pretrial motion,
judge for signature. Once the judge has the party can sometimes ask a higher court
signed the order, the party who won the usually called the Court of Appeals or
motion files it with the court and sends cop- Appellate Courtto intervene immediately
ies to the lawyers for all parties in the case. to reverse the decision. Although an appeals
court normally will not consider any aspect
of a case until the entire lawsuit is over, it
20. If my pretrial motion is denied, can will, in rare instances, step into the middle
I file it again? of a case to correct a lower courts decision.
A party asks a higher court to intervene by
With some motions or applications, losing filing an Application for a Writ (of Mandamus
once does not necessarily mean losing for or Prohibition), an Extraordinary Writ or
all time. A motion might be denied because an Interlocutory Appeal.
not enough information has yet been devel- Parties do not request writs routinely.
oped in the case for the judge to grant the The process is time-consuming and expen-
request. Or, the judge might consider the sive. Transcripts of the motion proceedings
motion premature, meaning there is not yet and extensive legal briefs must be pre-
good reason for the court to step in. Often, pared. And the odds of winning are slight.
a judge includes in the ruling a specific An appeals court will intervene only if the
statement that the motion is denied without decision of the lower court is blatantly in-
prejudice, meaning that the judge might be correct and it significantly alters the lawsuit
willing to view the matter differently if cir- or changes the position of the parties while
cumstances change. the lawsuit is pending. For example, an
In these situations, the party who lost the appeals court might step in to correct a
previous motion may make a renewed mo- decision to dismiss a Complaint against one
tion. This motion repeats the earlier request, Defendant in a lawsuit. The Plaintiff might
but must explain the circumstancesnew be willing to file a writ in this situation if
evidence, for example, or an inability to work the dismissed Defendant is the only one
things out without the courts helpthat who could pay a Judgment. An appeals
have changed since the last time a judge court might also step in if a judge has ruled
heard the matter. In master calendar courts, out an important Cause of Action for a
any judge may hear the renewed motion Plaintiff or an entire line of defense for a
not just the one who previously heard it. Defendant.
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 2 1

Your Fee Agreement Might 22. If an appeals court agrees to review


Not Cover a Writ a pretrial decision, does the lawsuit
continue while the appeals court
Following a serious legal blow by a judge,
considers the case?
you and your lawyer might agree that
filing a petition for a writ is worth the
When an appeals court considers an
effort and expense. But your retainer
Application for a Writ, the court may put a
agreement with the lawyer might not cover
temporary halt to all proceedings in the
such a writ.
lawsuit. This Stay of Proceedings might be
If you are paying by the hour and your
very important. An appeals court could
lawyer can and will prepare the writ, your
take months to reach its decision; without a
lawyer might agree to do the writ for the
stay, the parties would continue discovery
same hourly rate. However, you and your
and other pretrial maneuvers without
lawyer may negotiate with each other for a
knowing whether the lower courts ruling
higher or lower rate for work on the writ.
will stand, or instead be overturned or
If your lawyer is handling your case on a
altered by the appellate court. The party
contingency fee basis, your agreement
that has asked the appellate court to inter-
almost certainly will not include the
vene often asks for such a stay.
handling of a writ. You and your lawyer
If a stay is granted, everyone in the case
will have to agree on separate terms for
must wait for the appeals court decision
the writeither an hourly fee or some
before continuing with any formal proceed-
modification of the original contingency
ings in the lawsuit. This can delay the case
fee percentage.
for many months. But such a delay might
Finally, it may be that your lawyer can-
be better than the alternative. If no stay is
not handle the writ. Your lawyer might not
granted and the appeals court eventually
have sufficient experience with writs. Or
overturns the lower courts decision, some
the lawyer may simply be too busy to
important procedures in the lawsuit might
handle the continuing lawsuit and the writ
have to be done all over again.
at the same time. If so, the lawyer will
refer you to another lawyer to handle the
writ. And you and that other lawyer will
negotiate a fee specifically for work on the
Section II: Restraining Orders
writ. and Injunctions
Only street repair right outside the window
seems to take as long as a lawsuit. Until a
5/22 THE LAWSUIT SURVIVAL GUIDE

case is overin a year, two years or 23. When do courts issue restraining
threethe Plaintiff gets no money or other orders and injunctions?
compensation and the Defendant is not
forced to door to stop doinganything. TROs and Preliminary Injunctions are most
Sometimes, though, waiting to the end of a commonly used:
lawsuit can cause serious harm to the Plain- to halt damage to, alterations in or
tiff that cannot be undone by a final victory removal of property, or the spending
in the case. For example, if the Plaintiffs of assets that are related to the law-
partner is siphoning off assets and running suit dispute
their business into the ground, Plaintiff to prevent destruction or alteration of
needs the courts help right nowwinning evidence
the lawsuit years later could be meaningless to stop a change in title to, or imposi-
if the business is ruined in the meantime. tion of a lien on, real estate that is the
Or, someone who has an expensive sail- subject of the lawsuit
boat, in which Plaintiff claims an interest, to stop harassment, intimidation or
might be preparing to sail it off to the civil rights violations
Bahamas, beyond Plaintiffs reach and that to halt what the law calls a nuisance,
of the court. such as excessive noise, pollution or
In such situations, a Plaintiff may ask the a health hazard
court to take immediate action to prevent to stop any kind of behavior that is
harm or lossin legal parlance, to preserve likely to cause what the law calls
the status quountil a permanent resolution irreparable injury: injury that could
is reached through the more thorough but not be easily measured and remedied
much slower regular lawsuit process. These by economic compensation at the end
immediate court actions, usually requested of the case. Examples of irreparable
by a Plaintiff at or near the very beginning injury might be trademark or copy-
of a lawsuit, are known as Temporary right infringement or unfair business
Restraining Orders (TROs) and Preliminary competition.
Injunctions. If a Plaintiff believes that a Defendantor
These measures provide a Plaintiff with anyone who works for or is directed by the
only temporary relief. A judge may change Defendantis engaging in acts that fit any
one of these court orders, or end it alto- of these categories, the Plaintiff may request
gether, at any time during the lawsuit. a Temporary Restraining Order and/or
Moreover, granting one of these temporary Preliminary Injunction. (A Defendant who
orders has no formal effectthough it may is countersuing the Plaintiff can also seek a
exert strong informal pressureon which TRO or Preliminary Injunction.) These
party ultimately prevails in the lawsuit. costly procedures should be used only in
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 2 3

true emergencies, however. A court is dants business outside the courtroom only
unlikely to step in unless there is a serious to the least extent necessary, and only if
and immediate problem. three conditions exist:
The Plaintiff has no other lawful way
to prevent the harm
24. What is a Temporary Restraining The harm to Plaintiff is both likely
Order (TRO)? and imminent, and
The harm Plaintiff would suffer would
A Temporary Restraining Order is a sort of be irreparable (meaning that it would
legal emergency brakea temporary be impossible to calculate the damage
response to a crisis situation, imposed by a and compensate Plaintiff for it at the
judge only when necessary to prevent end of the case).
serious, irreparable harm and only when A judge must balance the potential harm
there is no other immediate solution to the to Plaintiff if the restraining order is not
problem. A TRO is an order by a judge that issued against the possible harm to Defen-
the Defendant immediately stop (be dant of meddling in Defendants affairs.
restrained from) doing something, or Plaintiff will win only if this balance tips
immediately take certain action, to prevent substantially in favor of the Plaintiff; if not,
imminent harm to the Plaintiff or property. a judge will refuse to issue the TRO. Even if
The Plaintiff usually seeks a TRO at the the TRO is denied, however, a Plaintiff can
very beginning of a lawsuit, though it may sometimes seek a judges protection in the
be requested at any time. form of a Preliminary Injunction. (Preliminary
Unlike most court rulings during a law- Injunctions are discussed in Questions 28-34.)
suit, a TRO does not address how the When balancing the pros and cons of
litigation itself will be conducted. Rather, a issuing a TRO, a judge pays little attention
judge issues a TRO to halt, alter or require to which side is likely to win the lawsuit. A
actions by the Defendant beyond the law- judge will check the Complaint and Answer
suit processout in the real worldif to see if there is any basis at all for Plaintiffs
those actions are related to the subject of claims, but otherwise will not consider who
the lawsuit. is likely to win the long-term legal struggle.
Since requests for a TRO usually come at
the very beginning of a case, a judge does
25. How does a judge decide whether not yet have enough information to weigh
to issue a TRO? what lawyers call the merits of the lawsuit.
And because a TRO usually is intended to
Judges do not grant TROs lightly. A judge last only a very short time, such consider-
will use a TRO to get involved in a Defen- ations can safely wait until the next step in
5/24 THE LAWSUIT SURVIVAL GUIDE

the proceedings, a hearing for a Preliminary the Complaint and Summons, along with
Injunction. the TRO papers, must be personally served
on Defendant. (For an explanation of per-
sonal service, see Chapter 3, Section I.)
26. What is the process for If for any reason the TRO papers cannot
obtaining a TRO? be personally delivered to the Defendant,
Plaintiffs lawyer must at least try to inform
When a Plaintiff asks a judge to issue a TRO, the Defendant by phone of the date and
usual court procedures are set aside. Because time of the hearing and the substance of
a TRO is sought only in an emergency the TRO request. In extreme emergencies,
situation, the process is streamlined and Plaintiff and Plaintiffs lawyer can skip the
less formal than most court proceedings. papers altogether and simply go speak to a
Short notice. Plaintiffs lawyer need not judge in person. In these rare situations,
give Defendant the standard notification Plaintiffs lawyer must at least have tried to
time required for most motionsusually 15 notify the Defendant of the plans to see a
to 20 days before the court date. Instead, judge.
the court hearing for a TRO may be set for Informal court hearing. Before deciding
only a day or twoeven hours, in extreme on the TRO request, a judge will read the
emergenciesafter Defendant is notified, Plaintiffs paperwork and any written
orally or in writing, of the hearing. arguments and documents Defendant or
Limited paperwork. Plaintiffs lawyer can Defendants lawyer can manage to pull
arrange for a TRO court hearing merely by together before the court hearing. If Defen-
filing a simple paper (Application for Tem- dant has had only a day or two to respond,
porary Restraining Order) stating in non- the judge will probably accept papers
technical terms what Plaintiff wants the judge handed in at the court appearance itself.
to do and why. Accompanying this applica- Because of the limited paperwork, a judge
tion is a sworn statement (a Declaration or may decide to personally question the
Affidavit) by Plaintiffs lawyer, Plaintiff and/ Plaintiff or Defendant.
or other witnesses to Defendants conduct In the gravest emergencies, a judge may
or Plaintiffs harm. These statements explain issue a TRO even if the Defendant does not
the emergency and the likely damage that appear in courtwhat lawyers call issuing
Plaintiff will suffer if the judge doesnt act an order ex parte. Judges are extremely
immediately. These papers must be delivered reluctant to do this, however. A judge must
to the Defendant as far ahead as possible be convinced that Plaintiffs lawyer con-
of the time Plaintiff will appear in court to tacted the Defendant, or did everything
ask for the order. If the TRO is sought at possible to do so, and that the order sought
the same time the Complaint is being filed, is absolutely necessary.
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 2 5

How You Can Help Your 27. How long does a TRO last?
Lawyer Seek a TRO
If your lawyer seeks a TRO, it will probably Unlike most other types of court orders,
be at the very beginning of the lawsuit, before which last for the entire lawsuit, a TRO
any information has been formally exchanged usually lasts only a few days or weeks.
through the discovery process. (See Chapter Sometimes a judge orders that the TRO will
4.) The only evidence your lawyer will have expire automatically on a certain date. Or
to present to a judge will come directly from the TRO may continue until a more exten-
you in a sworn statement about the emergency sive hearing is held in conjunction with
situation, plus any supporting documentation Plaintiffs Application for a Preliminary In-
you may have. junction, which seeks to have the restraint
The procedure for obtaining a TRO is quick continue for the duration of the lawsuit.
and rather hectic. If there is any doubt in a (For a discussion of Preliminary Injunctions,
judges mind about whether a TRO is necessary, see Questions 28-34.)
the judge will probably deny it. Occasionally, a TRO will stay in effect for
Your lawyers ability to present a coherent a longer time even though the Plaintiff does
and convincing picture to the judge may not seek an injunction. If the TRO prevents
depend on how well you assist your lawyer by: a party from transferring disputed property,
providing a complete and honest for example, a judge may order that it con-
description of the situationincomplete tinue until the conclusion of the lawsuit.
or inconsistent information may scuttle If a judge issues a TRO without having
your lawyers chances heard from the Defendant, the order may
coming up with written support or last only as long as it takes the Defendant
witnesses to back up your version of to get into court after receiving notice. And
events a Defendant may request at any time that a
anticipating Defendants side of the TRO be ended (lifted or dissolved, law-
storyif your own description can be yers say) in a Motion to Dissolve Temporary
easily clouded or contradicted by the Restraining Order. If restraining certain
Defendant, a judge is unlikely to issue a conduct will likely have a serious impact
TRO, and on the Defendant, a judge will make the
remaining available when the lawyer TRO as brief and as limited as possible.
goes to court seeking the TRO, in case
the judge wants to question you directly
or get more information about the 28. What is a Preliminary Injunction?
problem.
A Preliminary Injunction is a judges order
that the Defendant do, or not do, some-
5/26 THE LAWSUIT SURVIVAL GUIDE

thing out in the real world while the law- the casereferred to as irreparable harm.
suit is being contested. The conduct to be Plaintiffs who seek a Preliminary Injunction
controlled must be related to the subject(s) often also seek a Permanent Injunction
Plaintiff has raised in the lawsuit. A judge against the same conduct by the Defendant.
usually issues a Preliminary Injunction early (For a discussion of Permanent Injunctions,
in the lawsuit, well before all the facts are see Chapter 3, Section I).
in, as an interim decision. The Injunction Preliminary injunctions may be issued in
does not necessarily cover all issues raised any case in which Defendants ongoing
or relief sought in the Complaint. It may conduct is a subject of the lawsuit. They
end at any time if the judge decides it is no are most often sought by Plaintiffsor by
longer needed or justified. Cross-Complainants (see Chapter 3, Section
An Application for Preliminary Injunction III)in lawsuits that involve:
is often filed with, or immediately follow- a property or business dispute in
ing, a request for a TRO. But in many cases which the Defendants conduct during
a Plaintiff requests a Preliminary Injunction the lawsuit could do irreparable harm
without having bothered to seek a TRO. to Plaintiffs business or property
Requesting a TRO can be time-consuming a dispute with a state or local govern-
and costlyand the likelihood of success is ment or other public entity, in which
slim. If the situation to be addressed is not Plaintiff is trying to 1) prevent the
an emergency, a Plaintiff frequently chooses public entity from taking action that
to forego the extra work of a TRO applica- could not be easily remedied (for
tion and instead focus on the request for a instance, knocking down a building
Preliminary Injunction. or constructing a road) or 2) prevent
the entity from enforcing a law
against Plaintiff (for example, a new
29. When is a Preliminary health law that would require a res-
Injunction appropriate? taurant to close its outside patio)
a complaint about corporate or other
A judge issues a Preliminary Injunction to organizational discrimination or
prevent the Defendant from taking actions, harassment, in which Plaintiff wants
or to require the Defendant to take certain not only to receive compensation for
actions, for the duration of the lawsuit or the harm done but also to stop the
until the judge ends the injunction. The questionable conduct while the
general purpose of a Preliminary Injunction lawsuit proceeds (for example, a
is the same as a TRO: to halt conduct dur- companys policy of searching its
ing the litigation that could not be easily employees lockers or using discrimi-
undone or compensated for at the end of natory hiring practices).
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 2 7

30. How does a judge decide whether a landslide is more likely if the culvert
to issue a Preliminary Injunction? is removed
there is a similar or greater danger to
A judge reviewing an Application for a the Defendants property if the culvert
Preliminary Injunction first considers the is not immediately removed
likelihood that Defendants actionsor lack there are temporary steps Plaintiff or
of actionwill cause the Plaintiff imminent Defendant could take to avoid that
and serious harm. Is the harm certain to danger while the lawsuit proceeds and
occur or continue? Is it likely to occur in the any runoff damage to Plaintiffs
immediate future? Can that harm definitely propertyif the culvert were to be
be traced to Defendants conduct or lack of removedwould be Defendants
it? How serious is the harm? And could the legal responsibility.
Plaintiff take simple steps to temporarily
prevent the harm without enjoining the
Defendant? 31. Does the granting of a Preliminary
The judge then balances the likely harm Injunction indicate what a judges
to Plaintiff against the harm an Injunction final decision in a case would be?
would cause the Defendant. Would forcing
the Defendant to stop certain conduct seri- While the issuance of a Preliminary Injunc-
ously or permanently harm the Defendants tion indicates that a judge believes the
business? Would the cost to Defendant be Plaintiff is likely to win, it does not neces-
significant? sarily predict or affect the judges final
Finally, the judge considers whether the decision in the case. A judge hears only a
Plaintiff is likely to win the entire lawsuit portion of the total evidence in the case
and therefore be able permanently enjoin during a hearing for a Preliminary Injunction.
the Defendants conduct. Unless Plaintiff is At trial, the judge renders a final judgment
likely to prevail in the end, a judge will not based on all the evidence both sides present,
issue a Preliminary Injunction. using standards that are different from
For example, a Plaintiff might seek an those applied in a Preliminary Injunction
injunction ordering a Defendant to halt hearing. The judge may have a change of
removal of a drainage culvert that had heart once all the evidence is in or all legal
directed rainwater runoff away from arguments have been heard.
Plaintiffs neighboring hillside property. The Nonetheless, a Preliminary Injunction can
judge must determine whether: have a profound practical effect on a
removing the culvert would increase lawsuitwhich may justify the large expen-
the risk of flooding diture of lawyer and client time and money
5/28 THE LAWSUIT SURVIVAL GUIDE

required to put the application together. If injunction is in effect. A Defendant who


an Injunction forces an end (for the fore- faces a Request for Preliminary Injunction
seeable future) to activity important to the should ask a judge to require such a bond.
Defendant or indefinitely delays the start of If the Plaintiff fails to win a permanent
some project, it may put significant financial injunction against the Defendant, some or
or other pressure on the Defendant to settle all of that bond money may be forfeited to
the lawsuit. The judges preliminary ruling the Defendant to compensate for what the
in favor of Plaintiffwhich includes the Defendant lost while the preliminary injunc-
judges determination that Plaintiff is likely tion was in effect. Judges most often require
to win at trialmay also force Defendant to such bonds when the Defendant will suffer
seriously consider the possibility of losing direct economic loss as a result of the
the entire case. This, too, may increase the preliminary injunctionfor example, if the
Defendants willingness to settle the case. injunction prohibits a business from selling
a product or starting a lucrative project.

32. Are there any protections for


the Defendant in case it turns 33. How does the procedure used for
out that the injunction was Preliminary Injunctions compare
improperly issued? with that used for TROs?

A preliminary injunction forces a Defendant Unlike the hurry-up, emergency process of


to temporarily alter his or her conduct before seeking a TRO, the procedure for request-
the Plaintiff has proved at a trial that the ing a Preliminary Injunction is more formal
Defendant should be permanently required and orderly. It requires the preparation of
to do so. But what if the Plaintiff is unable all the papers normally included with any
to prove Defendants legal responsibility at motion (see Section I) and the standard
trial? What if the Plaintiff simply drops the advance notification period (15-20 days) to
lawsuit after the preliminary injunction has give the Defendant time to respond.
been in effect for awhile? Does the Plaintiff In addition to the written legal arguments
owe the Defendant anything for having that accompany all motions, an Application
hampered the Defendant while the prelimi- for (and Opposition to) Preliminary Injunc-
nary injunction was in place? tion are usually accompanied by extensive
The answer is sometimes yes, sometimes evidence in the form of sworn statements
no. A judge may order, as a condition of (affidavits or declarations) from the parties
granting a preliminary injunction, that the and other witnesses and documents that
Plaintiff post a bonda sum of money to support each sides position. In some courts,
be held in trust by the court while the the judge may even conduct a trial-like
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 2 9

hearing in which witnesses testify in open freely from state to state. In the modern
court, often with the judge asking many of world, some people spend time in several
the questions. Because of the preparation places and do business in many others.
required for all this, a request for a Prelimi- This mobility can sometimes make it diffi-
nary Injunction can be very time-consuming cult to get fair resolution of a dispute. For
and expensive. instance, a Plaintiff might not be able to
force an out-of-state Defendant into court.
Even a Defendant who has shown up in
34. Once it is in place, is there any way court may move assets out of state if the
for a Defendant to get out from litigation starts to go badly, leaving the
under a Preliminary Injunction? Plaintiff with nothing from which to collect
a Judgment. In response to such problems,
Any time after a judge issues a Preliminary courts have developed several procedures
Injunction, the Defendant may ask the judge that put a hold on the Defendants assets
to end it (lawyers say lift or dissolve). while the litigation is pending. These are
To end the Injunction, a Defendant must known as lis pendens, attachment and
demonstrate to a judge that circumstances receiverships.
have changed, or that new evidence has
become available that shows:
the Injunction is no longer necessary 35. What is a lis pendens?
to protect the Plaintiff
the negative effect of the Injunction Defendant might own real estate in the
on Defendant is considerably greater jurisdiction where the lawsuit is proceeding
than anticipated, or but have few other assets with which to
Plaintiff is not, in fact, likely to win at pay Plaintiff an award. If so, Plaintiff may
trial. be permitted to place a special lien on the
local property, preventing Defendant from
selling that property while the litigation is
Section III: Motions to Secure pending. In most jurisdictions, Plaintiffs
lawyer may impose this liencalled a lis
Assets: Lis Pendens,
pendenswithout a judges permission.
Attachments and Importantly, the property itself need not
Receiverships have any connection to the dispute between
the Plaintiff and Defendant. In some juris-
State courts only have jurisdictionlegal dictions, a lis pendens is not permitted if
authorityover people and property within the property is the Defendants principal
the states boundaries. But people move place of residence.
5/30 THE LAWSUIT SURVIVAL GUIDE

36. What is an Attachment? ruptcy. In that type of Receivership, creditors


ask a bankruptcy court to appoint an out-
Attachment is the temporary seizure by the side overseer to ensure that at least some
court, at the very beginning of a lawsuit, of assets of the failing business are saved to
assets belonging to the Defendant. The pay the creditors. A similar sort of Receiver-
court attachestakes legal control ofthe ship is sometimes available at the beginning
assets until the case is resolved. If the of a lawsuit involving an ongoing business.
Plaintiff wins money damages against the In a lawsuit involving a business or
Defendant, the Plaintiff may collect those property, either side may ask a judge to
damages out of the value of the assets. The place the business or property in Receiver-
assets themselves need not bear any relation ship if there is evidence that someone is
to the dispute. They need only be assets in seriously damaging the business, wasting its
which the Defendant has an ownership in- assets or planning to destroy or remove
terest. (In some states, however, Defendants valuable property. If the request is granted,
primary residencethe home in which the the judge appoints a third partythe
Defendant livesmay not be attached. Receiverto take over and run the business
Homestead laws in those states prevent or property pendente lite (until the law-
Defendant from being forced to sell or suit is resolved).
mortgage the home to pay damages.)
In some states, Attachments are authorized
any time the Complaint charges Defendant 38. How does a Receivership
with fraudulent conduct. In most states, pendente lite work?
however, Plaintiff must present evidence to
a judge that the Defendant is likely to dis- The appointment of a Receiver is a big step
pose of or hide the assets or move them for several reasons. It may be very expensive,
beyond the jurisdiction of the court. To requiring an extensive and complex court
prove such intent, a Plaintiff must usually hearing about the state of the business or
present evidence of an actual attempt by property, with evidence from accountants
Defendant to sell or move assets in response and other experts. The court-appointed
to the dispute underlying the lawsuit. Receiver, who is often highly compensated,
will have to be paid for as long as the
business remains in Receivership. A judge
37. What is a Receivership appointing a Receiver will determine who
pendente lite? pays the Receivers fees, the most likely
source being the business itself.
The most common form of Receivership is If a Receivership is granted, the Receiver
used for businesses on the verge of bank- will control the property or business. That
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 3 1

is, the business or other asset is taken out lawsuits that have something in common,
of both parties hands for the duration of any party in any of the related cases may
the lawsuit. The success of the business, or ask the court to join the separate lawsuits
protection of the asset, then depends on into one. This request is called a Motion to
the abilities of the Receiver. Finally, a judge Consolidate or Motion to Coordinate.
must approve all significant actions by the
Receiver. This requires continued expensive
participation by the lawyers for both sides, 40. When can a judge order
in addition to their ongoing work on the consolidation?
lawsuit itself.
The basic purpose of consolidating separate
cases is simply convenience, both for the
Section IV: Motions to Expand, parties and the court. If two different cases
Narrow or Move involve some of the same facts or legal
issues, the parties can save time and energy
a Lawsuit by consolidating the cases into one set of
legal proceedings rather than duplicating
In several common situations, a party may effortsparticularly discovery procedures.
ask a judge to change the shape of the On the other hand, courts dont want to
lawsuit. For instance, someone who is a force parties into a single lawsuit if the
party in two or more related lawsuits may disputes have only minor facts or tangential
request that the separate cases be joined legal issues in common. A court will order
into one. Or, if a lawsuit includes multiple consolidation only if common facts or legal
disputes among several parties, a party issues are central to both cases. For example,
might request that the disputes be separated if two businesses have separately sued a
into two or more different lawsuits. And third company because of that third
someone sued in a court distant from that businesss fraudulent billing practices, the
Defendants residence or principal place of way the third company did its billing is a
business may ask a judge to transfer the set of facts crucial to both cases. Similarly,
case closer to home. if a poorly designed drain system has
caused flooding in several different build-
ings, separate lawsuits filed by the owners
39. What does it mean to of the flooded buildings might very well be
consolidate lawsuits? consolidated into one lawsuit.
In deciding whether consolidation is
When at least one person, business or appropriate, a judge balances the conve-
organization is a party in two or more nience of the parties requesting it, and of
5/32 THE LAWSUIT SURVIVAL GUIDE

the court itself, against any difficulty con- Chapter 4). By then, a judge will have
solidation might present to any other party. enough factual information to determine if
For example, it might be unfair to a party the connection between the cases justifies
whose lawsuit is set for trial in a few months consolidation. Although judges usually
to consolidate that case with a case that coordinate cases in the early to middle
would not be ready for trial for over a year. stages of litigation, cases may also be
It might also be unfair to drag an individual consolidated for trial only.
or small business with a simple lawsuit into
a complex, multi-party lawsuit just because
consolidation would be more convenient 42. If lawsuits are consolidated, is there
for one of the other parties. just one trial?

When lawsuits are consolidated, all pro-


ceedings thereafter are generally held
jointly, including trial. But a judge may
order cases consolidated for all pretrial
proceedings and then separated again for
trial. Separate trials might be ordered if:
a joint trial would be too long or too
complicated for one jury, or
a partys chance of a fair trial in one
case might be threatened if trials were
consolidated. This might happen if a
co-party is accused of serious mis-
conduct in another dispute.
A judge may also order a consolidated
trial of only those issues common to both
cases, leaving the issues unique to each
case to be tried separately. For example,
41. When may a party request that one jury might decide whether a Defendant
lawsuits be consolidated? business sold a defective product to a
group of Plaintiffs. Then, issues unique to
A judge may order consolidation at any each Plaintiffwhether the Plaintiff was
point in any of the lawsuits. However, harmed by the product, whether the
consolidation usually isnt ordered until all Defendant was responsible for that harm
parties have completed their pleadings (see and the extent of any injuriescould be
Chapter 3) and some initial discovery (see decided by separate juries.
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 3 3

Would Consolidation Be 43. What is a Motion to Sever?


Good for Your Case?
Frequently, a Plaintiff includes numerous
The question of consolidation can arise in claims against different Defendants in a
two ways. You and your lawyer might single lawsuit. Defendants might add
consider asking to consolidate your several counterclaims to the mix, not only
lawsuit with another case. Or a party in against Plaintiffs but also against entirely
another case might seek to consolidate new Cross-Defendants. The resulting
with your lawsuit. In either situation, you branches of a single lawsuit can sometimes
and your lawyer must consider several resemble a polygamists family tree. The
basic questions: proceedings in such a multi-party lawsuit
Would your lawyer save workand can easily become unmanageable. If the
you save attorney feesby sharing the case gets to trial, it might need the Ringling
load with other lawyers on the same Brothers rather than a judge.
side of a consolidated lawsuit? Sometimes, one party in a lawsuit simply
Would joining the cases speed or slow does not want to be associated in the eyes
the pretrial process? of the jury with another party who is
Would joining your lawsuit with technically on the same side.
another put you in a better settlement For either of these reasons, a judge has
bargaining position? (For instance, the authority to separate a lawsuit into two
going to trial alongside other parties or more cases. Any party may ask for such
might make your case appear stronger a separation by filing a Motion to Sever. If
or weaker in the eyes of a jury, the Motion to Sever is granted, the part of
depending on how the other parties the case that is severed becomes a separate
cases look and sound.) case of its own. From that point forward,
If trying both cases together seems a the two cases have separate fatesseparate
bad idea, is it advisable to request (or schedules, separate proceedings and
agree to) pretrial consolidation and separate trials.
separate trials?

44. What sorts of cases are likely to


be severed?

Several different disputes might be com-


bined in a single lawsuit because one party
is involved in all of them. Except for that
one connecting party, however, the other
5/34 THE LAWSUIT SURVIVAL GUIDE

parties and legal issues might easily divide pany contends that the different distributors
into two or more separate, unrelated cases. conspired with one another, a judge might
If the case remains one big lawsuit, all the agree that there is no good reason to make
parties are forced to go through litigation a Defendant in one end of the state travel
procedures that have nothing to do with to the other end simply for the convenience
them. There is also the risk that a jury might of the company suing.
be confused by a complicated trial involving
unrelated parties and legal issues.
For example, several employees sue their 45. Can the conduct of a party justify
employer for unlawful employment dis- severing its case from other parties?
crimination. The company counter-sues
against one of those employees and against Sometimes one party or set of parties has
a rival businesswith no connection to the been much nastier, or otherwise presents a
discrimination claimfor unfair competition. much uglier face, than other parties on the
In this situation, there are really two same side of the case. If so, a judge might
entirely separate sets of legal issues and split the case in order to separate the good
parties, except for the one employee and bad apples before the jury looks into
involved in both. If the case is not split, the the barrel. In the situation described in
employees suing for discrimination will be Question 44, for example, one of the
forced to wait for all the legal maneuvers employees might be counter-sued by the
that are connected to the unfair business company for embezzlement and fraud. In
practices claim. And the rival business will that situation, a judge might split the case
have to wait for all the litigation pertaining to spare the other employees charging
to the discrimination claims. In such circum- discrimination from being tainted, in the
stances, a judge might agree to split the eyes of a jury, with evidence of such
case in two. deceitful conduct committed by their co-
Severance might also be appropriate if worker.
some Defendants have to travel to a distant
locale for trial. If the facts and legal issues
involving the distant Defendants are not 46. What is venue and how can it be
crucial to proving the case against the changed?
local Defendants, a judge might sever the
case, forcing Plaintiff to pursue separate As explained in Chapter 3, Section I, a
lawsuits in each district. For example, a Plaintiff sometimes has a choice of venue
company doing business in many parts of a a county or other judicial districtin which
large state might sue several of its distributors to file a lawsuit. If Defendants reside or do
for unpaid accounts. But unless the com- business in different counties, and the
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 3 5

activities that underlie the Complaint


Whose Venue Really Matters,
occurred in still other districts, the lawsuit
Yours or Your Lawyers?
may be filed in any of those locales.
The Plaintiffs initial decision about If you are a Defendant in a lawsuit outside
where to file the Complaint, however, does of the county where you reside, you and
not permanently cement the lawsuit to that your lawyer may want to discuss request-
court. The lawsuit location might be ex- ing a change of venue. This motion is
tremely inconvenient for some Defendants. relatively simple and inexpensive to bring,
If a more convenient court in the state unless it is based on unfavorable pretrial
would also have been proper for Plaintiffs publicity (which sometimes calls for hiring
lawsuit, a Defendant may ask the judge to a public opinion sampling company to
move the case there. In federal court, a determine the effect of the publicity on
case may be moved to any other federal potential jurors).
district in which the lawsuit could properly In deciding whether to make the motion,
have been filed. The procedure for request- consider your lawyer as well as yourself. If
ing such a move is called a Motion for your lawyers office is far from the court, it
Change of Venue. may be convenient and cost saving to
move the case so the lawyer will not have
to travel far to get to court. Your lawyer
may also be more familiar with court pro-
cedures and judges in the local district. If,
on the other hand, your lawyers office is
close to where the lawsuit is filedand
you dont want to switch lawyersyou
may not want to change venue, even if the
courts location is inconvenient for you.

47. What factors does a judge consider


when deciding whether to order a
change of venue?

Judges decide change of venue requests by


comparing and balancing the convenience
of all the parties. If most of the parties in a
multi-party lawsuit reside in one county or
5/36 THE LAWSUIT SURVIVAL GUIDE

district but a Plaintiff has filed the lawsuit discussed the dispute, local radio and televi-
elsewhere, a judge might move the case to sion coverage of the dispute (with the dates of
the county or district nearest to where most reports or discussions, if known) and any
of the parties reside. public meetings concerning the dispute.
A judge might also consider a change of
venue if all the important witnesses live
outside the courts judicial district. If the 48. At what point in a case is a judge
distances are substantial, it might be incon- likely to grant a change of venue?
venient and unnecessarily expensive to
have the lawyers travel to take the witnesses A judge may agree to change venue any
depositions (see Chapter 4, Section V) and time after all Defendants have filed their
later to bring all the witnesses to the court Answers. However, the earlier a Motion for
where the trial is held. Change of Venue is made, the more likely
it is to be granted. Each court has its own
How You Can Help Your Lawyer scheduling rules and lawsuit procedures. So,
With a Motion for Change of Venue a judge will be reluctant to move a case if a
If you and your lawyer believe that a change number of procedures have already been
of venue would be beneficial, you may be completed and might have to be repeated if
able to provide information for the motion. the case were moved to another court.
The motion will probably be made early in
the case, when your lawyer may not know all
the players in the dispute. Because the geo- 49. Can publicity about a dispute justify
graphic location of witnesses is usually the a change of venue?
key to a judges decision regarding change of
venue, you should give your lawyer a com- It is one of the basic tenets of the judicial
prehensive list of everyone who might be a system that matters of local concern should
witness in the case. This must include people be litigated in local courts and tried by
who will be key witnesses for the other side. local juries. Occasionally, however, local
Give their business and/or home location, re- publicity about a particular dispute has
lationship to the parties or their businesses been so sustained and inflammatory that it
and the subject of the testimony they are might be difficult to find an unbiased local
likely to give in the case. jury to hear the case. (This happens more
In a change of venue motion based on pre- frequently in criminal cases than in civil
trial publicity, you may be able to provide lawsuits.) Courts usually deal with the
your lawyer with evidence that the dispute problem of pretrial publicity by simply
has been publicizedsuch as newspaper or delaying trial until media exposure and
magazine articles, online sites that have public interest have died down. But some-
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 3 7

times the media hype in a civil case has injuries to their children sustained in a
been so extreme, and has painted one school bus accident, the school district
party so unfavorably, that moving the case might successfully move the case to a court
to another part of the state where there has some distance away.
been little publicity is the safest route to a
fair trial.
A change in venue on these grounds 50. Is it possible to move a lawsuit to
usually is granted in a civil case only when another state?
the dispute involves or affects a wider
community than just the specific litigants. Change of venue in a state court lawsuit
For example, if a lawsuit involved the moves the case from one county or district
possible contamination of a towns ground within the state to another. In rare cases,
water by a refinery or gas works, continuing however, a state court lawsuit may be
public concern about the issue might make moved to another state entirely. Some law-
it difficult to pick an unbiased jury. Similarly, suits are filed in one state but could also
if a group of parents in a town or a small have been filed in another. (See Chapter 3,
city were suing a school district over Section I.) If it would be considerably more
practical to litigate the case in the other
state instead, a judge may invoke the legal
doctrine of forum non conveniens (mean-
ing inconvenient location) to dismiss the
case, forcing Plaintiff to file it anew in the
other state.
The guidelines for a judge to dismiss a
case under forum non conveniens are
roughly the same as for a change of venue.
(See Questions 46-49.) But a Defendant
who wants to move the case to another
state must work a much stronger argument.
If the Plaintiff is a resident of the state
where the case is originally filed, a judge
almost certainly will not dismiss the case
under forum non conveniens.
A judge sometimes waits to dismiss the
case until Plaintiff has actually filed a new
lawsuit in the other state and Defendant
has filed an Answer. This ensures that the
5/38 THE LAWSUIT SURVIVAL GUIDE

Defendant submits to the jurisdictionlegal the Defendant might hope that Plain-
authorityof the other states courts and tiff filed the Complaint merely as a
does not use forum non conveniens to slip threat and will not seriously pursue
out of the lawsuit entirely. the lawsuit, or
the Defendant might just procrastinate
too long and miss the deadline to
Section V: Plaintiffs Motions respond.
for Default Whatever the reason, if the Defendant
fails to file a responsive pleading within the
Under certain circumstances, a judge may time allowed by law, the Plaintiff may ask
enter a final Judgment for the Plaintiff if the the court to grant a Default Judgment. A
Defendant fails to properly respond to the Default Judgment declares that the lawsuit
Complaint within the time limits set by law. is over and that the Plaintiff has won every-
thing the Complaint requested from this
particular Defendant. It does not, however,
51. Can Plaintiff win a Judgment if affect any other Defendants.
the Defendant fails to respond
to the Complaint?
52. How does the Plaintiff go about
Not every person named as a Defendant getting a Default Judgment?
actively defends against the lawsuit. A
Defendant might fail to defendby not In most courts, obtaining a Default Judg-
filing responsive documents within the ment is a two-step process. First, once the
allotted time at the beginning of the case time for Defendant to file a response to the
for various reasons: Complaint has expired, Plaintiffs lawyer
the Defendant might not dispute the asks a judge to order that the Defendants
facts in the Complaint and see no Default be entered. In some courts, Plaintiffs
point spending time or money to lawyer goes directly to the court clerk to
defend officially enter the Defendants Default in
the Defendant might have few assets the case file. This is done by filing a simple
to lose and little money to spend on form called something like Request for
litigation Entry of Default. Plaintiffs lawyer must
one Defendant might believe that his send a copy of the Default to the Defen-
or her Co-Defendants will adequately dant and then wait a certain prescribed
defend the case for all the Defendants timeusually 14 to 30 daysbefore taking
or will pay any damages won by a the second step of requesting a Default
Plaintiff Judgment.
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 3 9

53. How might the Defendant escape the amount of damages Plaintiff claims from
a Default Judgment? this Defendant can be precisely calculated,
Plaintiff might be able to obtain a Default
During the 14-30 day waiting period after Judgment simply by submitting sworn
Plaintiff serves the Request for Entry of declarations or affidavits (and documents to
Default, Defendant may file an opposition, which they refer) spelling out the exact
sometimes called a Motion to Set Aside amount of damages. For example, if the
Default, detailing the reasons why the Complaint asked for only a specific, certain
Defendant failed to respond in time. sum, such as the amount of money owing
Judges usually look favorably on a Motion on a note or contract, Plaintiff need only
to Set Aside Default. There is a strong present evidence of the agreement to prove
preference in the court system for deciding how much the Judgment should be.
cases on the meritsthe substance of the However, Plaintiffs lawyer might have to
disputerather than on a procedural foul- file extensive documents establishing the
up. A Default is usually denied or set aside amount of Plaintiffs damages if the Com-
if the Defendants non-response was due to plaint asks for:
almost any normal human failing, such as a compensation for intangibles such as
mix-up with paperwork, an illness to the pain and suffering or other general
Defendant or a close family member or damages
Defendants misunderstanding of the law. emotional damages
Default is more likely to be denied or set the value of a business, or
aside if the Defendant was not represented the loss of potential future income.
by a lawyer when a response to the Com- And written proof alone might not be
plaint was due. And the sooner a Defendant enough. Instead, a judge might require a
asks for a Default to be set aside, the more court hearing, with testimony and arguments
likely a judge is to do so. about how much should be awarded for
damages, costs and fees.

54. If a Defendants Default is not


set aside by a judge, how does 55. Once a Default Judgment has
it become a final Judgment been entered against a particular
for Plaintiff? Defendant, is the case over for
that Defendant?
If a Plaintiff obtains (takes) a Defendants
Default and the Defendant fails to have the Even when a Default Judgment has been
Default set aside, Plaintiffs lawyer must file entered, a Defendant may ask the court for
a Motion for Entry of Default Judgment. If another chance to fight the case by filing a
5/40 THE LAWSUIT SURVIVAL GUIDE

Motion to Set Aside Default Judgment. If a Section VI: Defendants Motions


Defendant did not actually receive either to Dismiss
the Complaint or the Notice of the Default
in time, a judge will consider setting aside
the Default Judgment and permitting the 57. When might a judge dismiss the
Defendant to file a response to the Com- Plaintiffs case prior to trial?
plaint. A judge might also be favorably
disposed toward the Motion to Set Aside Some Plaintiffs file a lawsuit merely to pres-
Default Judgment if serious illness or other sure the Defendant to settle their dispute,
significant incapacity prevented the Defen- without intending actually to litigate the case.
dant from responding in time. And judges Other Plaintiffs file a lawsuit with full intent
are more sympathetic to a Defendant who to pursue it, engage in a certain amount of
was not represented by a lawyer at the time litigation, then stop pursuing the case.
the Complaint was served and the Default Some Plaintiffs might decide that they just
Judgment entered. do not want to continue spending lawyer
fees and litigation expenses. Others might
realize that their case is weak or futile. Still
56. If a Defendant files an Answer others might simply lose the will to litigate
but later fails to respond to legal once it becomes clear that the Defendant is
procedures, may the Plaintiff obtain willing and able to put up a legal fight.
a Judgment without going to trial? In any of these situations, the Plaintiffs
failure to pursue the lawsuit leaves the
Sometimes, a Defendant files an Answer to Defendant hanging. As long as the lawsuit
the Complaint and begins to litigate the case, technically remains open in the courts files,
but later stops participating in the lawsuit the Defendant cannot be sure if and when
process, refusing to comply with discovery the litigation might someday erupt again.
or respond to pretrial motions by Plaintiff. The Defendant cannot securely plan a
In these circumstances, a judge may enter business or personal life, since the threat of
what is called a Penalty Default Judgment. a lawsuit, attorney fees and potential
A judge takes this extreme step only if the compensation to the Plaintiff has not been
Defendant fails continuouslyover many entirely eliminated. Also, a pending lawsuit
monthsto participate in any litigation or might compromise Defendants personal or
cooperate in a critical part of the case (such business financial and credit records.
as answering key questions at Defendants Because of the harm to a Defendant who
own deposition or turning over crucial is left in this legal limbo, court rules permit
documents once production has been a Defendant to ask a judge to dismiss the
ordered by a judge). case if Plaintiff fails to litigate.
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 4 1

58. How can a Defendant get a Judgment is the final step in any case. The
dormant lawsuit dismissed? Defendant might need a Judgment to prove
to other courts, creditors and financial insti-
When a Plaintiff fails to pursue a lawsuit, tutions that the case is completely finished
there is a simple procedure to ask for and that the Defendant has prevailed.
dismissal. The Defendants lawyer files a
Motion to Dismiss for Lack of Prosecution,
along with a declaration or affidavit that 59. What factors does a judge consider
summarizes Plaintiffs disappearing act: how when deciding whether to dismiss a
long it has been since Plaintiff initiated any lawsuit for failure to prosecute?
legal proceedings, whether Plaintiff has
failed to respond to Defendants litigation A judge is more likely to dismiss a lawsuit
procedures and how little Plaintiff has done for lack of prosecution if:
in the case. Of course, the Plaintiff may Plaintiff has taken few or no steps in
oppose such a Motion to Dismiss, offering the case since filing the Complaint
excuses for failing to actively pursue the months have passed since Plaintiff last
lawsuit. took any action on the case
If the judge agrees to dismiss the case for no lawsuit proceedings are presently
lack of prosecution, the Order of Dismissal scheduled, and
is usually made with prejudice. This means the Plaintiff or Plaintiffs lawyer has
that the Plaintiff may never again file a failed to respond to legal proceedings
lawsuit against that Defendant based on the the Defendant has initiated, or to
same dispute. The judge may also order correspondence or telephone calls.
that the Plaintiff pay the Defendants court Most judges are reluctant to take the
costs, and in some cases the Defendants serious step of dismissing a case merely for
attorney fees. failing to keep up a steady litigation pace.
Following an Order of Dismissal, a bit The Defendant usually needs to show
more paperwork might be required to finally several of the above-listed factors before a
close the case. In some courts, Defendants judge will agree to dismiss. A single failure
lawyer must file a formsometimes called by a Plaintiff to respond to a proceeding, or
a Notice of Entry of Dismissalthat instructs a period of inactivity lasting only a few
the court clerk to enter the Dismissal in the months, is probably not sufficient to justify
courts records. Then the Defendants dismissalparticularly if Plaintiff has no
lawyer finalizes the Dismissal by having the attorney or is in the process of looking for
judge sign a Judgment of Dismissal. A a new one.
5/42 THE LAWSUIT SURVIVAL GUIDE

You May Want to Drop Your Own Lawsuit

You may find yourself in the awkward posi- In other courts, however, a Plaintiff must
tion of having initiated a lawsuit that you obtain the courts permission to dismiss
are unable or unwilling to pursue. Perhaps without prejudice once the Defendant has
its become too expensive, your chances of filed an Answer. The court usually gives
winning seem slim or you simply have lost permission unless the case is close to trial.
the will to do more legal battle. If so, you But the farther the case has progressed, the
may want to consider Voluntary Dismissal more likely a judge is to force Plaintiff to
of the case. pay Defendants litigation costs and perhaps
There can be some significant advantages attorney fees as the price of dismissal with-
to seeking a Voluntary Dismissal rather than out prejudice. If you are willing to file a vol-
waiting for the Defendant to request Dis- untary Dismissal With Prejudicemeaning
missal. First, you may voluntarily file a you may never file a lawsuit about the same
Dismissal Without Prejudice, which means dispute again against this same Defendant
that you could possibly file the lawsuit you do not need a judges permission in
again, at a later date. Voluntary Dismissal most courts.
may also allow you to avoid paying the If you need a judges approval for a
Defendants litigation costs and perhaps Dismissal Without Prejudice, it may be a
attorney fees, which you might have to pay good idea for your lawyer to negotiate the
if the Defendant is forced to file a Motion to terms of the Dismissal with the Defendant
Dismiss. You can also avoid having an before going to court. Defendant may be so
adverse Judgment appear on your credit relieved to have the case dismissed that he
records or business history. or she will agree to give up any request that
In some courts, the Plaintiff may voluntarily the judge award costs or attorney fees, or at
dismiss the case, without asking the courts least negotiate a lower amount than a judge
permission, any time before the start of trial. might otherwise order.
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 4 3

Section VII: Discovery Motions attempt to resolve disputes the parties have
not been willing or able to work out them-
Although most of discovery takes place selves. These conferences require lawyer
outside of court, judges do get involved in preparation and a court appearance, but they
the process at various times. There may be usually solve discovery problems that would
a regularly scheduled conference at which cost much more time and money if left for
a judge oversees the entire discovery pro- the lawyers to battle out on their own.
cess and takes steps necessary to ensure its Depending on the rules of the court in
progress. Lawyers may go to court on their which a lawsuit is to be tried, one or more
own initiative for permission to engage in (though not all) of the following confer-
special types of discovery, or to extend ences may come up in a case. At any of
discovery beyond its normal time limits. these conferences, a judge might consider
Lawyers also go to court if an opposing certain discovery issues.
party fails to respond to a discovery request Scheduling Conference. A scheduling
or responds insufficiently. And lawyers go conference may be held within the
to court to seek protection for their clients first two to three months of a lawsuit.
against improper or excessive intrusions by At this conference, the judge may
opposing parties. This section discusses establish a schedule for discovery as
each of these occasions when lawyers wind well as other pretrial proceedings. A
up in court over discovery. lawyer who anticipates problems with
discovery can ask the scheduling
conference judge to set some ground-
60. Do judges regularly rules for certain procedures.
monitor discovery? Discovery Conference. Some judges
schedule a separate discovery confer-
At some point during the long road toward ence for each case, usually within the
trial, some courts require all the lawyers in first six months of the litigation. Here,
a case to attend a conference with a judge a judge focuses exclusively on discov-
to discuss discovery. The timing and scope ery, reviewing the status of ongoing
of these conferences vary. Each state and procedures, handling problems that
federal court district has its own rules, and have cropped up and trying to ensure
each individual judge determines informally that discovery will be finished in a
what is covered in a conference. During timely manner.
these conferences, a judge might review Status Conference. Somewhere in the
what has gone on so far in discovery, set middle to latter part of the case, a
boundaries for upcoming procedures and court may schedule a status conference.
5/44 THE LAWSUIT SURVIVAL GUIDE

This conference permits a judge to common of these procedures requiring


make sure the case is moving along court approval include:
steadily. Often a judge uses a status conducting any type of discovery
conference to set deadlines for com- earlier than is permitted by normal
pletion of discovery. rules, for which a lawyer must file a
Settlement Conference. If the lawsuit request called a Motion to Initiate
has not settled or otherwise been Early Discovery
disposed of as it nears a trial date, the conducting discovery after the normal
parties and lawyers will be required period of discovery has ended, for
to go to court for a settlement confer- which a lawyer files a Motion to
ence. There, a judge will try to Extend Discovery Cut-Off or a Motion
maneuver everyone into a settlement. to Reopen Discovery, and
(See Chapter 8, Section II.) If the obtaining a physical or mental exami-
entire case is not settled during this nation of one of the parties (in a court
conference, the judge may settle that requires prior judicial approval),
lingering discovery disputes. for which a lawyer files a Motion for
Pretrial Conference. A few days or Physical (or Mental) Examination.
weeks before trial, the judge may call
the parties into court to sort out pro-
cedural and evidentiary issues that 62. Can my lawyer ask a judge to
might arise during trial. If any discov- protect me from the other sides
ery disputes remain unresolved, the overreaching discovery requests?
judge can address these issues as
well. Sometimes, one side goes too far in a
discovery request, repeatedly asking for
information that need not be revealed. For
61. Does a lawyer have to get court example, a party might seek discovery of
permission to use certain information that is privileged or otherwise
discovery procedures? confidential, make unreasonably broad
discovery requests or ask questions at a
Lawyers initiate most discovery procedures deposition that are needlessly embarrassing
without specific permission from a judge. or inflammatory. Most disputes over dis-
However, in some courts a few types of covery limits are settled through informal
discovery may only be conducted with a wrangling between the lawyers. But some-
judges prior written order. The most times, no compromise is possibleor the
other attorney simply wont stop. In such
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 4 5

situations, the lawyer may go immediately If there has been no response from the
to court to ask for protection against the other side, or the response appears to be
other sides improper request, question or insufficient, a lawyer may file a motion to
other discovery. The lawyer may file a compel a full answer. Each side files papers
Motion for Protective Order, which seeks giving its version of what has been re-
protection from a specific discovery request, quested and why the response is or is not
or a Motion to Quash, which seeks to cancel sufficient. The judge or special discovery
an entire discovery procedure. commissioner (a lower level judge who
A lawyer might also ask the court to only presides over discovery disputes) then
prevent the other side from publicizing the holds a court hearing to listen to each
information provided in discovery. Ordinarily, partys arguments.
information produced during a lawsuit is a These discovery motions include:
matter of public record. But if there is good Motion to Compel Answers to Inter-
causefor instance, if a party has produced rogatories, if a party failed to answer
confidential commercial information or an interrogatory or gave an insuffi-
personal information that would be embar- cient answer
rassing if publicly revealeda judge may Motion to Compel Production of
order that the information be sealed. If Documents or Motion to Compel
the judge grants this Motion for Protective Inspection of Property, if a party has
Order or Motion to Seal Matters Produced produced some documents but
Upon Discovery, the other side can use the refused to produce others or has set
information for the lawsuit but cannot improper limits on inspection of
divulge it to anyone else. property
Motion to Determine Sufficiency of
Response to Request for Admissions, if
63. Can my lawyer go to court to force a partys response appears to dodge
the other side to provide more or the question rather than answer it
better information? Motion to Compel Answers to Deposi-
tion Questions, if an opposing party
Most discovery disputes are about the suffi- has refused to answer certain ques-
ciency of a response. Is an answer evasive tions at a deposition, and
or incomplete? Has the party done a thor- Motion to Compel Physical Examina-
ough search of its records? Are an objection tion, if the other party refuses to
and refusal to answer legally proper? Is a submit to a physical examination (in a
delay in responding, beyond the regular case in which it is appropriate) or sets
time limit, legitimate? unacceptable limits on the exam.
5/46 THE LAWSUIT SURVIVAL GUIDE

Stop and Consider Before Heading for 64. Can someone be held in contempt
Court. Courtroom battles over discov- of court for dodging a legitimate
ery can significantly increase the cost and discovery request?
aggravation of a lawsuit. This is particularly
true if you are paying your lawyer an hourly Contempt of court is one of those legal
fee. Even without hourly bills, however, court animals that everyone has heard of but few
fights over discovery may increase tensions, have actually seen. The popular image
distract the lawyers from more important work, usually includes a wild outburst in a court-
delay progress and run up expenses. And you room by a party or lawyer. However,
may have to pay sanctions if you lose. (See contempt findings are more common for
Question 65.) For these reasons, you should failure to abide by a court order, frequently
ask your lawyer to notify you before filing any regarding a discovery matter. This kind of
discovery motion, particularly if you are pay- discovery contempt arises in several situa-
ing by the hour. tions. An opposing party may fail to respond
When you and your lawyer discuss the at all to a legitimate discovery request. A
advisability of going to court over a particular party or other witness might fail to properly
discovery matter, consider the following: respond to a discovery request that was
How important is the information your made by subpoena rather than simply by
lawyer is seeking? notice. Or a party may fail to provide a
How important is it to you personally, discovery response that was ordered by a
or to the success of your case, to protect judge after a previous motion to compel
information the other side is seeking? discovery.
How much is a court fight likely to cost? In any of these situations, the party who
How likely is it that you will prevail in requested the information may file an
court? Order to Show Cause re Contempt (OSC).
Is going to court a tactical decision? If Both sides give written arguments detailing
so, will it be worth the expense? what has happened with the discovery
Is there a compromise that might avoid request, then appear in court. If there was
a court fight? Could you provide only no good excuse for failing to respond to
some of the information sought or seek the discovery requestparticularly if the
the other sides information in a differ- party has ignored a court ordera judge
ent way? may hold the party in contempt of court.
What is the likelihood that the other However, this kind of contempt of court
side will have to pay your costs and does not result in the sort of drastic action
attorneys fees if you win the court fight? Bailiff, take him away!that many
What is the likelihood that you will people associate with the term. Rather, a
have to pay sanctions if you lose? judge decides how to respond to a partys
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 4 7

or other witnesss discovery shortcomings Merit sanctions. In cases of serious


whether or not theyre technically in con- abuse of the discovery process or
tempt of courtbased on the seriousness repeated refusal to produce discovery
of the offense and the importance of the ordered by the court, judges have the
information sought. (See Question 65.) authority to make rulings about the
use of the information sought in dis-
covery. These rulings can directly
65. How can a court punish a party for affect a partys ability to win the case.
abusing the discovery process? Merit sanctions are tailored specifically
to the nature and importance of the
As part of the ongoing discovery wars, discovery and the degree of miscon-
lawyers often ask judges to impose penal- duct in refusing to provide it. Merit
ties called sanctions on the other side for sanctions may include a) prohibiting a
failing to provide what has been requested, party from using at trial any informa-
requesting something to which they are not tion that has improperly been withheld,
entitled or otherwise conducting discovery b) excluding a witnessincluding a
in an abusive manner. Judges have wide partyfrom testifying if the witnesss
discretion to impose sanctions for unrea- identity was improperly withheld or
sonable conduct during discovery. The the witness was uncooperative in
frequency and severity of sanctions vary some major way, c) instructing the
widely from court to court and from judge jury to accept certain facts as true if
to judge, but they may include the follow- information about them was improperly
ing: withheld and d) throwing out an
Costs and fees. A judge may order a entire claim or defense, or the case
party who loses a discovery motion to itself, for truly serious discovery abuse
pay the other partys costs and attorney (for example, the destruction of
fees for preparing and filing the crucial evidence).
papers and for appearing in court.
Monetary sanctions. In addition to Who Pays Sanctions, Client or Attorney?
attorney fees, a judge may also add a Judges may impose discovery sanctions
penalty amount, known as a monetary against either the client or the lawyer. If you
sanction. Such an additional amount have stubbornly refused to provide information
is more frequently added when a despite your lawyers advice to the contrary,
lawyer or party has been held in con- then you should pay the sanctions. But if
tempt of court or when a judge feels information is not produced because your
his or her conduct has been obviously lawyer refuses to hand it over, or has advised
and exceedingly unreasonable. you not to provide it, then the judge should
5/48 THE LAWSUIT SURVIVAL GUIDE

impose any sanctions against your lawyer per- 66. What is Summary Judgment and
sonally. However, judges sometimes cannot when is it appropriate?
tell who was responsible for failing to provide
discovery. In a Summary Judgment Motion, the mov-
In such cases, you should have a clear agree- ing party presents a judge with the crucial,
ment with your lawyer about who will pay clearly established facts in the case, called
sanctions, which may include considerable undisputed facts, uncontradicted facts,
attorney fees for the other side. If your lawyer uncontroverted facts or facts without sub-
advises you to resist producing certain infor- stantial controversy. The moving party
mation, discuss who will pay possible sanctions argues in its supporting papers that these
if you continue to resist all the way to court. facts show as a matter of law that the
Your lawyer might offer personally to take the moving party must win the case, and there-
risk, might insist that you pay or might suggest fore is entitled immediately to a Judgment
splitting the risk. Whatever agreement you in its favor. To succeed, the moving party
reach, you and your lawyer should put it in must satisfy the judge not only that the
writing. parties agree on these crucial facts but also
that the laws applied to those facts are
subject to only one interpretationthat the
moving party wins the case.
Section VIII: Motions for For example, an employer who is sued
by an employee for accidental injuries might
Summary Judgment
be able to demonstrate facts that conclusively
and Summary prove the employee was injured on the job.
Adjudication If so, the employee might not have the
right to sue the employer, but might instead
In the American judicial system, judges and be required to file a Workers Compensation
juries have different roles. Before trial, a claiman employees exclusive remedy for
judge makes decisions concerning proce- on-the-job injuries. The employers Motion
dural rules and other legal matters but does for Summary Judgment would present facts
not decide the facts of the disputethe showing that the employee was injured
questions of who, what, when, where, why while performing work-related duties. If
and how. Those questions must wait for those facts were uncontradicted, a judge
the trial where a jury, or a judge if there is could grant Summary Judgment for the
no jury, decides which partys version of employer, without hearing any facts about
the facts is true. In a Motion for Summary how the accident happened or who was at
Judgment, however, a judge may decide fault. The employees task in opposing this
the facts and end the case without trial. motion would be to contradict the facts that
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 4 9

indicate the accident was work-related. Or any Counterclaimant or Cross-Defen-


the employee could offer legal arguments dant seeking to win Judgment on a
that the Workers Compensation laws dont Counterclaim or Cross-Complaint by
apply in this case. If the party opposing a any opposing party.
Summary Judgment can show either that If there is more than one party on the
the facts are in dispute (and therefore must other side of the lawsuit, a Summary Judg-
be decided by a jury) or that the law is on ment Motion may address one opposing
his or her side, the motion should be party or all parties. If there are multiple
denied. Causes of Action in the lawsuit (see
In another example, suppose Plaintiff was Chapter 3), a Motion for Summary Judgment
badly injured when Plaintiffs and Defendants must present facts and arguments that
cars collided in an intersection. The states attempt to dispose of all of them. A related
driving laws state that a left-turning vehicle procedure is available to knock some but
must always yield the right-of-way to on- not all Causes of Action out of the lawsuit.
coming traffic. The Defendant might win a (See Questions 73-75.)
Motion for Summary Judgment by showing
beyond any dispute that the Plaintiff was
making a left turn while Defendant was 68. When may a Summary Judgment
going straight. However, if the Plaintiff can Motion be made?
show that the Defendant might have
contributed to the accident by breaking A Motion for Summary Judgment may be
another traffic lawby speeding or driving brought almost anytime before trial. How-
without headlights after dark, for ex- ever, Summary Judgment Motions are most
amplethe Summary Judgment Motion often made, and are most likely to be
might not be granted. granted, when discovery is nearly complete.
(See Chapter 4.) To win a Motion for
Summary Judgment, the moving party must
67. Who is permitted to make a convince a judge that the cases crucial
Summary Judgment Motion? facts have been established beyond doubt
or dispute. The discovery process is the
A Summary Judgment Motion may be way most information is nailed down in a
brought by: lawsuitincluding whether there is more
any Plaintiff, seeking to win a final than one version of any particular fact.
Judgment against any one or all Only when most discovery is completed
Defendants named in the Complaint can any party successfully assert, and a
any Defendant, seeking to win Judg- judge confidently decide, that a crucial fact
ment against any one or all Plaintiffs is undisputed.
5/50 THE LAWSUIT SURVIVAL GUIDE

Should You Move for Summary Judgment?

In deciding whether to make a Motion for the motion may delay the whole case for
Summary Judgment, you and your lawyer months. Your lawyer is unlikely to do much
must consider a number of factors. The else on the case while working on Summary
positive factors begin with the obviousits Judgment. And once the motion is pending,
a chance to win the entire case without no other litigation proceedings are usually
having to go through a trial. On the other scheduled. Also, a Summary Judgment
hand, most judges prefer not to decide an Motion often prompts a similar motion from
entire case without allowing both sides a the other side, meaning your lawyer will
trial, so they will only grant a Summary have to spend time, energy and money to
Judgment Motion in the most obvious and oppose it. Unless there is a good chance of
overwhelming circumstances. winning the motion, all this may be too high
Summary Judgment Motions can be both a price to pay.
expensive and time-consuming. Those most On the other hand, your lawyer may know
likely to succeed present a few simple, clearly that the court or particular judge hearing
undisputed facts on which an unequivocal your case grants Summary Judgment Motions
legal decisionoften applying a technical more often than other courts. Particularly in
legal rulecan be based. Other types of crowded court systems, certain judges like to
Summary Judgment Motions are usually bad use Summary Judgment motions as a way of
bets. For example, a motion that asks a judge clearing cases off their calendars. If so, you
to decide whose witnesses are telling the may want to file a motion even if the odds
truth, or which version of complicated facts of winning in another court might not be
makes most sense, stands little chance. (One strong.
general rule lawyers use is that the more Also, merely filing a Motion for Summary
uncontested facts needed to support the Judgment may produce some positive results
motion, the tougher it is to win.) Similarly, even if the chances of winning are only so-
Summary Judgment is highly unlikely if it so. By forcing a detailed response to the facts
depends on a judge deciding on a partys or you contend are undisputed, your lawyer
other persons state of mindwhat someone might induce the other side to reveal the
intended, understood, was aware of or evidence and legal theories they will rely on
expected. And Summary Judgment is rarely for trial. A strong Motion for Summary
granted if the motion relies on the opinions Judgment might push the other side toward a
of expert witnesses. The other side can almost more favorable settlement of the case. Fear
always come up with at least one expert of of losing the motion, and therefore the entire
its own whose opinion will dispute some case, may prompt a change in settlement
crucial aspect of your experts opinions. position. And having to spend lots of time
There are other reasons to hesitate before and money opposing the motion may nudge
filing a Motion for Summary Judgment. Filing the other side to consider settlement.
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 5 1

69. How does a party present a paid the higher price for a period; and
Summary Judgment Motion deposition testimony from the manager of
to a judge? the buyers business, stating that he agreed
to accept the more expensive items.
In addition to the documents filed with any
standard type of motion (see Section I,
above), in most courts the moving party Delaying the Other Sides
has to set out in a separate document Summary Judgment Motion
called something like Statement of Undis-
As mentioned, a party usually does not
puted Facts or Statement of Uncontroverted
make a Summary Judgment Motion until
Factsthose facts it contends are undis-
most discovery in the case has been com-
puted. These must be material facts: each
pleted. Occasionally, however, a party
must help to establish the legal basis for
files a Summary Judgment Motion as soon
the moving party to win the entire lawsuit.
as one key fact surfaces that seems to de-
Attached to this document are sworn decla-
liver a knockout blow. Judges are reluctant
rations or affidavits that include or refer to
to grant Summary Judgment if they believe
evidence that proves each crucial fact. This
there is still more important evidence to be
evidence might be records or other docu-
developed. If a Summary Judgment Motion
ments, statements by parties or witnesses,
has been filed against you when there is
testimony from depositions, a partys
more discovery to be done, the judge
admissions or answers to interrogatories.
might postpone the other sides motion
(See Chapter 4.)
until that discovery is completed. And
For example, suppose a seller sues a
while more discovery is being conducted,
buyer for refusing to pay for the sellers
your lawyer will know exactly what kind
products. The buyer contends that the
of evidence must be obtained to dispute
seller delivered different, more expensive
the facts raised by the other side.
products than were described in the parties
contract; the seller contends that the buyer
agreed in writing to accept the different
products, thereby modifying their contract.
If the seller brought a Summary Judgment 70. How does a party oppose a
Motion, he might attach evidence such as Summary Judgment Motion?
correspondence between buyer and seller
in which the different products were de- The party opposing a Motion for Summary
scribed and discussed without objection by Judgment usually files, in addition to the
the buyer; records showing that the buyer standard Memorandum of Points and
5/52 THE LAWSUIT SURVIVAL GUIDE

Authorities in Opposition (see Section I), a sworn declarations or affidavits, in


raft of other documents: which evidence is presented that dis-
Objections to Evidence, in which some putes the other sides facts and sup-
of the evidence presented by the ports different supposedly undisputed
moving party is attacked as legally facts. In the contract example, the op-
improper, in an effort to have the posing party might present deposition
judge eliminate that evidence from testimony from the manager and CEO
consideration regarding the motion. describing the managers authority, af-
For example, the party opposing the fidavits from other managers stating
motion might object to a contract the that they had no authority to change
other side offered as evidence, argu- contracts for the company and letters
ing that the contract is invalid because from the other side showing that they
it was never signed. knew the manager had no authority
Statement of Disputed Facts, also to change the contract.
called a Statement of Genuine Issues, These documents are often highly detailed;
in which those facts asserted by the they must be prepared with great thorough-
other side as undisputed are contra- ness and care. As a result, opposing a
dicted. For example, the moving Motion for Summary Judgment is often
partys undisputed fact that a busi- extremely time-consuming. On the other
ness manager approved a contract hand, losing a Summary Judgment Motion
change might be disputed by the fact might mean losing the entire case, so it is
that the manager was not authorized not a procedure in which a lawyer should
to make changes to contracts for the stint on time or energy.
company.
Statement of Undisputed Facts in How You Can Help Your Lawyer
Opposition, in which the opposing With a Summary Judgment Motion
party proposes its own uncontested There might be little help you can offer on a
facts to show an overall legal picture Motion for Summary Judgment. The motion
different from the one presented by may be based on a few fairly simple facts and
the moving party. In the example a technical legal argument based on those
discussed above, the opposing party facts. Whether your lawyer is making or op-
might present facts showing that the posing such a motion, the lawyer can easily
manager had never changed any handle the whole thing without your help. In
other contract and that the company other cases, there might be more complicated
handbook authorized only its CEO to evidence, but you might not know enough
contract on the companys behalf. about it to help your lawyer out.
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 5 3

On the other hand, making or opposing a 71. Who has the last word, the Plaintiff
Summary Judgment Motion sometimes requires or the Defendant?
sorting through and organizing a lot of evidence
and producing new evidence on specific After the other side has filed its papers
factual issues. In these cases, there may be a opposing the motion, the moving party files
number of things you can do to help your a reply. This reply may include formal
lawyer. Objections to Evidence (arguments that
On any crucial factual point, you may some of the other sides evidence is legally
know of documentswhether or not improper), factual contentions and a final
they have already surfaced in the case Memorandum of Points and Authorities that
that support your side of the argument. counters the other sides legal arguments.
You can retrieve these documents for
your lawyer.
You may know of some fact that 72. What are a judges options when
supports your argument, or counters the considering a Motion for Summary
other sides, but which has not yet Judgment?
emerged in the case. If so, your lawyer
can present this fact to the court in a A judge may do one of several things in
sworn affidavit by you or another ruling on a Motion for Summary Judgment.
witness. The judge may grant the motion, which
You may know of a witness who has not gives a final Judgment to the moving party
yet testified in the case and has informa- and ends the lawsuit between the parties
tion helpful to your side of the Summary involved in the motion. If the motion is
Judgment argument. That witness can denied, the lawsuit continues as before.
make a sworn statement to be presented Sometimes, a judge takes an intermediate
to the court. route. Instead of denying a motion, the
You may be required to write an affidavit judge may take it off calendardelay the
to submit with your motion or opposition. decision indefinitelyuntil the parties
You should find out when your lawyer complete some more discovery that the
plans to bring (or anticipates that the judge believes is necessary to decide the
other side will bring) the motion, so motion. A judge might also deny the full
you can be available to work on your Summary Judgment but grant what is called
affidavit. a Partial Summary Judgment, also known
In any of these situations, your first move as a Summary Adjudication of Issues. This
should be to discuss the matter with your partial ruling declares some portion of the
lawyer and ask the lawyer how you should casea legal issue, cause of action, set of
proceed. factsdecided in favor of the moving party
5/54 THE LAWSUIT SURVIVAL GUIDE

but does not end the case entirely. (Partial facts, evidence and legal arguments are
Summary Judgment, or Summary Adjudica- directed at limited, specific issues rather
tion of Issues, is explained in Questions than the entire case.
73-75.)

75. Why file a Partial Summary


73. May a judge declare one party to Judgment Motion if the lawsuit will
have won certain issues in a case continue anyway?
without deciding the whole case?
A Motion for Summary Adjudication of
Often, a lawyer believes that some portion Issues or Partial Summary Judgment can
of the other sides caseeither part of greatly simplify trial, and therefore reduce
Plaintiffs Complaint, or of Defendants the time, energy and expense needed to
Answer or Counterclaimis legally insup- prepare and conduct it. For example, there
portable even though the lawsuit as a might be clear evidence that a Defendant is
whole presents a legitimate dispute. If so, legally responsible for injuries Plaintiff
the lawyer may ask a judge to throw out suffered, but a genuine dispute about how
that specific portion of the other sides case badly Plaintiff is injured and therefore how
without asking that the entire lawsuit be much compensation Plaintiff should be
ended. This type of request is called a awarded. A Motion for Summary Adjudication
Motion for Partial Summary Judgment or of Issues or Partial Summary Judgment in
Motion for Summary Adjudication of that case might request that a judge declare
Issues. as a matter of law that the Defendant is
responsible for the accident. If the motion is
granted, Plaintiffs lawyer would be saved
74. How does the procedure for a the time and expense of proving the
Partial Summary Judgment Defendants legal responsibility at trial and
(Summary Adjudication of Issues) would instead be able to concentrate
compare with a motion requesting entirely on proving Plaintiffs damages.
full Summary Judgment? A party might file a Motion for Summary
Adjudication to ask the court to decide any
The procedure for a Partial Summary Judg- important issue before trial, such as whether
ment Motion is virtually the same as for a one states laws govern a dispute between
Motion for full Summary Judgment. The residents of different states, whether a
motion must include a Statement of Undis- contract was in effect or whether someone
puted Facts, supporting evidence and legal was acting as an employee at the time of
arguments. The only difference is that the certain misconduct.
MOTIONS AND OTHER COURT PROCEEDINGS BEFORE TRIAL 5/ 5 5

Summary Adjudication of Issues or Partial violated that particular law, to eliminate the
Summary Judgment can also be used to attorney fees claim. A Defendant might also
reduce the risk a party faces at trial. For use a Motion for Partial Summary Judgment
example, a Complaint may claim that the to try to knock out a cause of action, like
Defendant not only owes the Plaintiff money fraud, that would allow the Plaintiff to seek
but also violated a law that would permit punitive damages. (See Chapter 3, Section I.)
the Plaintiff to collect attorney fees from the Proving or eliminating certain aspects of
Defendant if Plaintiff wins the lawsuit. (See the case before trial frequently changes the
Chapter 3, Section I.) In that situation, a relative strength of the parties bargaining
Defendant might try to convince a judge to positions. This can be a significant spur to
rule in advance that the Defendant has not settlement.
Chapter 6

Mediation

1. What is mediation? ............................................................................... 6/2


2. How is mediation different from litigation and arbitration? .................. 6/3
3. What is the basic structure of mediation? ............................................. 6/4
4. Can mediation work if our previous efforts to settle
the case have failed? ............................................................................. 6/5
5. What kinds of cases are best suited to mediation? ................................ 6/5
6. At what point in a lawsuit is mediation appropriate? ............................ 6/6
7. What might I gain or lose if the mediation is unsuccessful? .................. 6/8
8. How does mediation get started? .......................................................... 6/8
9. How can my lawyer help set up the mediation? ................................. 6/10
10. Does my lawyer send any paperwork to the mediator? ...................... 6/10
11. What are the actual mediation sessions like? ...................................... 6/10
12. How can my lawyer help me prepare for the mediation session? ....... 6/11
13. If an agreement is reached, does the mediator actually
settle the lawsuit? ............................................................................... 6/11
6/2 THE LAWSUIT SURVIVAL GUIDE

A
t some point during the course of a Alternative Dispute
lawsuitwhen costs and fees Resolution (ADR)
threaten the litigants solvency, the
You may have heard, or will hear during
drain of time and energy threatens their
your lawsuit, the term Alternative Dispute
personal life and work capacity and the
Resolution (ADR). ADR refers generally to
stress and nightmares threaten their sanity
several processesmediation, arbitration
the parties may find themselves asking
and private judgingthat may be used
How did I get into this? And then, How
instead of litigation to resolve a dispute.
do I get out?
However, different people and court
Eventually, both sides are likely to ask
systems use the term ADR in different
these questions at the same time. (In fact,
ways. In some states, ADR refers to one
one side may have been asking these
particular system of arbitration or media-
questions from the very beginning.) If and
tion set up by the court. In other places,
when both parties reach this point, there
the term means any kind of alternative to
are several ways they can step back from
litigation, whether set up and controlled
the litigation process and try to resolve
by the court or run by private services.
their dispute. This Chapter and the two that
In this book, the term ADR is not used to
follow discuss some of these methods:
refer to any one particular process. Instead,
mediation, arbitration (Chapter 7) and
each kind of alternative dispute resolution
negotiated settlements (Chapter 8).
is referred to and explained under its own
The parties may try mediation, which
separate categorymediation, arbitration,
seeks a resolution of the dispute that works
neutral evaluation, court-directed settle-
for everyone rather than an adjudication of
ment conferences and private judging.
a winner and a loser. If the mediation is
unsuccessful, the parties simply resume
their lawsuit.
This Chapter discusses mediationwhat
it is and how it works to resolve disputes 1. What is mediation?
without a judge, jury or arbitrator. Although
mediation is essentially an informal, non- All too often, lawsuits come to resemble
legal process for resolving disputes, this the dilemma of the sorcerers apprentice. In
Chapter also explains how a client may that tale, a magicians assistant overheard
make use of his or her lawyer to initiate and repeated his masters magic words to
mediation, prepare for mediation and set buckets and mops in motion to do the
finalize any agreement the parties reach. apprentices job of cleaning the sorcerers
laboratory. However, the apprentice did
not know the words to stop the brooms
MEDIATION 6/ 3

and buckets, and soon the laboratory was few people, and disputes among individu-
not merely cleaned but completely flooded. als or small businesses, rather than larger
Lawsuits may follow a similar path. After companies or organizations. Mediation is
months of litigation, a party often finds that, particularly helpful if the parties will carry
instead of moving the dispute toward a on a relationship after the dispute is over,
resolution, the lawsuit has driven the two such as with business associates, employers
sides farther apartand closer to the poor and employees, a landlord and tenant or
housethan they were when the case neighbors.
started. While it may have been easy enough
to utter the magic words Sue the bastards!
finding the formula to stop the lawsuit can
Where to Find a Complete Guide
be much more difficult. Thats where
to Mediation
mediation might come in.
Mediation is a process by which the Because mediation is entirely different
parties try to reach a mutual resolution of from litigation, this book provides only an
the dispute with the help of a trained facili- introduction. This Chapter will help you
tator. If the mediation fails to produce an understand mediation and decide whether
agreement between the parties, the lawsuit it might be useful to you. If the discussion
can continue as before. Mediation works here leads you to believe that mediation
especially well in disputes involving only a might be a sensible alternative in your
case, you may want to read How to Mediate
Your Dispute by Peter Lovenheim (Nolo), a
comprehensive, easy-to-use guide to the
entire mediation process, from deciding
whether your case might be right for
mediation to choosing a mediator, preparing
for and going through the mediation itself
and turning your mediation settlement into
a workable, binding agreement.

2. How is mediation different from


litigation and arbitration?

In litigation and arbitration, each partys goal


is to obtain a decision by a judge or arbitrator
6/4 THE LAWSUIT SURVIVAL GUIDE

that favors that partys position. (Arbitration third party, the mediator. Depending on the
is covered in Chapter 7.) Mediation, on the type of dispute, the mediator may ask the
other hand, involves no decision maker. lawyers to present each partys legal position.
Rather, mediation encourages the parties to However, the mediator will focus on how
mutually craft their own decision. Some the parties themselves see the dispute, as it
unique features of mediation are: is they who will ultimately have to agree to
all litigation proceedings are put on any settlement that is reached. Sometimes
hold during the mediation process, the parties will be speaking directly to each
allowing the mediation to take place other; other times, each party may talk with
without the heat and noise of adver- the mediator separately in whats known as
sary maneuvering a caucus.
the parties may choose to speak for The mediator has no authority to order
themselves in mediation sessions, either side to do or say anything. However,
rather than relying entirely on the the mediator will set and enforce certain
lawyers ground rules for the mediation sessions, to
mediation focuses on ways for the ensure that they proceed in a calm and
opposing parties to agree, rather than orderly way. And a mediator makes no
harping on who was right or wrong final ruling or decision, gives no opinion
mediation offers the assistance of a about who was right or wrong, declares
neutral third party, the mediator, who neither party victorious. Rather than setting
provides a calming presence that up a win-or-lose scenario, a mediator
lawyers usually do not encourages both parties to get things off
the mediator employs a set of specific their chests and offers suggestions about how
skills designed to foster negotiations the two sides might come to a resolution of
between the parties, skills that lawyers the dispute.
and judges frequently lack, and Sometimes the parties use mediation to
mediation is informal, requiring little arrive at a dollar settlement figure. Other
technical legal preparation, so it is times, however, parties use mediation to
usually completed quickly and in- consider how their relationship might con-
expensively. tinue in the futurehow two businesses
might again work together without similar
disputes erupting, how a landlord might
3. What is the basic structure respond to tenant complaints, how an
of mediation? employer and employee might structure
their work relationship to minimize conflicts
In mediation, the parties sit down together or how neighbors might jointly maintain
to discuss the dispute with an independent property that affects them both.
MEDIATION 6/ 5

If the parties reach a mediated agreement, change each partys view of the prospects
they memorialize it in settlement documents for winning (or losing) if the litigation were
that end the lawsuit. (See Chapter 8.) If to continue. If the dispute is about more
mediation does not resolve the dispute, the than just dollars and cents, the mediator is
parties return to the litigation just where trained to propose innovative solutions that
they left it. the lawyers likely have not considered.

4. Can mediation work if our previous 5. What kinds of cases are best suited
efforts to settle the case have failed? to mediation?

Yes. Mediation often works because it is so Mediation isnt helpful in every lawsuit. It
different from the adversary process of might be most usefulinstead of normal
litigation. Because parties may speak for settlement negotiations between the parties
themselves in mediation, they can give lawyers (see Chapter 8)in cases where
voice to creative ideas, personal feelings the primary consideration is something
and practical solutions that litigation might more than how much money one side
discourage. (The confidentiality of every- should pay the other, particularly when the
thing said in mediation is discussed below.) parties have an ongoing business or
By the same token, each party gets to hear personal relationship to consider. In fact,
directly from the horses mouth what is mediators sometimes are the first to notice
most important to the other side, instead of that something other than money is impor-
relying on a third-hand version each lawyer tant to the parties; until trying mediation,
reports from the other partys lawyer. the parties and lawyers themselves may
Also, during mediation the parties might have only fought over who pays how much
at least partly escape the full force of the to whom.
lawyers approach to the lawsuit. Litigation Mediation is less common in disputes
lawyers are skilled primarily at finding a over responsibility for a single incidentan
way to win. Sometimes, they focus so accident causing injury or damage, for
intently on doing battle that they lose sight example, or an isolated business deal gone
of opportunities for resolution that include bad. In such cases, a mediator has little
repairing the parties relationship. In media- room to change the parties thinking or
tion, however, the parties get to hear a fashion an innovative solution. Nevertheless,
different, impartial voice. The mediator may in some of these cases a mediator might
point out, in different terms than the lawyers help by acting as a referee in a settlement
would use, the strengths and weaknesses of negotiation session among lawyers and
each sides position. This may, in turn, help parties.
6/6 THE LAWSUIT SURVIVAL GUIDE

Mediation Is Common in Divorce an iron-clad legal basis for winning


and Custody Disputes the lawsuit. Mediation requires each
side to consider the others position
In the past couple of decades, many courts
carefully; that is far less likely if one
have made mediation readily available to
side strongly believes it is certain to
divorcing and divorced spouses to help
win in court.
settle the difficult, emotional problems raised
by separating lives and households while
continuing to share children. Indeed, many
6. At what point in a lawsuit is
courts have made mediation mandatory
mediation appropriate?
for all divorcing or divorced couples with
disputes relating to their children. For
The opposing sides in a lawsuit may arrange
more information on mediating domestic
for mediation on their own, without court
relations disputes, see Using Divorce
permission or involvement, at any time. But
Mediation by Attorney-Mediator Katherine
there are several key points during litigation
E. Stoner (Nolo).
at which mediation is most likely to be
successful. The first is immediately after the
lawsuit has been filed. Having to face the
Mediation tends to work best in these reality, rather than merely the possibility, of
types of lawsuits: long and expensive litigation might shock
Lawsuits involving only two parties. both parties into accepting mediation as a
The more people directly involved in far better idea. This is also the point when
the lawsuit, the more difficult it is for courts might order parties into mediation
everyone to agree on a resolution (in those jurisdictions where mediation is
through mediation. mandatorysee Question 8).
Disputes in which the parties are more Another moment when mediation might
or less equal in terms of bargaining succeed is immediately after a particularly
strength. Mediation doesnt work as stressful or revealing litigation procedure,
well if one party has far more experi- such as a partys own deposition or a failed
ence or bargaining strength than the Motion for Summary Judgment. Having
otherfor example, if an individual just gone through a tense or bruising and
goes up against a large employer or expensive experience, the parties may be
other corporate opponent. looking for a saner way out of the mess.
Cases in which both parties are at Similarly, a party who has been uninterested
least a little uncertain about the out- in mediation might become more amenable
come. Mediation is less likely to to it after a deposition or other legal
succeed if either side believes it has maneuver has muddied what had previously
MEDIATION 6/ 7

seemed to be that partys clear legal ad-


Your Lawyer Might Resist Mediation
vantage.
Finally, some parties develop an interest Many lawyers understand the advantages
in mediation on the eve of trial. At this of mediation and support their clients
point, the parties might realize that litigation efforts to settle disputes that way. However,
has not improved either sides position or other lawyers are uncomfortable with
disposition, and the prospect of an intense mediation. They believe that clients get in
and expensive trial might be decidedly trouble when they speak for themselves.
unattractive to both. Lawyers are trained in the adversary system,
which teaches that battle is the best method
for serving a clients interests. Also, many
lawyers believe that mediating a solution
You Can Mediate More Than Once means a client might be giving away
legal rights and advantages. As a strategic
Perhaps you wound up in litigation because
matter, a lawyer may not want to suggest
prior negotiating efforts failed. You may
mediation to the other side, fearing that it
even have tried mediation before the law-
might show a lack of faith in the chances
suit, without success. If youve already tried
of winning the lawsuit. But this fear of
but failed to settle things face to face, whats
signaling weakness is also a risk with
the point in again sitting across the table
proposing settlement negotiations, and
from that unreasonable, hard-headed so- lawyers find ways to get those discussions
and-so? moving at almost any point in the case.
Its because the experience of litigation (See Chapter 8.)
might have made both of you more open For any of these reasons, your lawyer
to the possibility of a mediated solution. might not suggest mediation and might be
However far apart you and the other party less than enthusiastic if you bring it up.
have been in your views of the dispute, However, if your dispute seems to be a
you now have something very much in good candidate for mediation, you should
commonthe experience of being trapped insist that your lawyer at least help you in-
in a lawsuit. Now that you both have vestigate the possibility. Ask your lawyers
tasted the expense, time and stress of liti- opinion about mediation for your case and
gation, mediating an agreement might mediation services in your area. (Help in
seem much more appealing to both of you finding mediation services is also available
than continuing the lawsuit. If mediation from the Nolo book How to Mediate Your
otherwise seems to make sense in your Dispute by Peter Lovenheim.) If your lawyer
case, dont reject the idea just because opposes mediation in your case, make
negotiations or other mediation have failed sure the reasons are in your best interests,
in the past. not just the lawyers.
6/8 THE LAWSUIT SURVIVAL GUIDE

7. What might I gain or lose if the quick the process, it does use up some time
mediation is unsuccessful? and money. And if a litigant heavily relies
on an hourly paid lawyer to help prepare
Compared to litigation, mediation is relatively for and sit through mediation, the attorney
inexpensive. Prices can range from a few fees can pile up. Also, mediation may result
hundred dollars to several thousand dollars in the disclosure of a particular weakness
per party, depending on the complexity of in the case that the other side might not
the case and the length of the mediation. otherwise have discovered. And mediation
And the process is relatively quick. It can can increase a partys frustration and anger,
be arranged within a few weeks, and the if the other side doesnt seem to be cooper-
mediation sessions themselves usually last ating in the process. So if the dispute seems
only for a few hours or a single day. If the very unlikely to be resolved in mediation,
mediation fails, the parties will not have the added costs and the tactical risks, how-
lost much time out of the litigation process. ever slim, might make mediation a shaky
Even if no agreement is reached, the investment.
mediation sessions might prove to be useful
in the long run. Comments and suggested
solutions offered by the mediator might 8. How does mediation get started?
become the basis for settlement negotiations
down the road. (See Chapter 8.) And what Some litigants begin mediation because
the parties say during mediation might give they are required to do so by the court in
each of them better insight into what the which the lawsuit is filed. Certain courts
other is really thinking, which also might order mediation for certain types of cases
make it easier to reach a settlement later on. divorce and child custody and visitation,
But mediation has potential down-sides, most commonlyand also for any type of
too. However reasonable the costs and dispute if the amount of money demanded
MEDIATION 6/ 9

by the Plaintiff is under a certain limit


Confidentiality Is Key in Mediation
(usually $25,000 to $50,000). If a case is
ordered to mediation by court rules, it is One of the reasons mediation so often
usually referred to a mediation service run works is that the warring parties are
by or contracted with the court itself. encouraged to fully speak their minds. The
If a lawsuit is not court-ordered to parties feel free to do this because what-
mediation, the parties may voluntarilyif ever they say in mediation is confidential:
both agreeenter mediation at any time, nothing written in mediation papers or
and may use any mediation service they said in a mediation room may be used as
choose. Some court-run mediation services evidence in court.
are available to litigants who volunteer for In most states, this confidentiality is
it. If a court service is not available, the established by law or court rule. But to
parties must use a private mediation service make absolutely sure that nothing you say
or an individual private mediator. in mediation can later be used in court if
Once the parties have been sent to, or have the mediation fails, check to see that
chosen, a mediation service or individual confidentiality is spelled out clearly in the
mediator, they usually enter into a Mediation mediation agreement. If it is not, have your
Agreement. This agreement establishes the lawyer ask the mediator to add it to the
basics, such as costs, dates and deadlines. It agreement before you sign.
also sets out ground rules for the process, Bear in mind, however, that while the
though these are usually very fewmedia- statements you make during mediation
tion succeeds, in part, because of its great may not be used as evidence in court, the
flexibility. The rules usually include: other side is not going to forget what they
what kind of written summary of each hear from you during the mediation. What
sides position is to be sent to the you reveal in the mediation about legal
mediator in advance of the mediation strategy, key witnesses or crucial facts may
(and whether that summary will be provide ammunition for the other side that
sent to the other side) they might not otherwise have had. If the
how documents and other information mediation fails, the other party can use
may be presented to the mediator this information to plan discovery and trial
how the mediation sessions will be strategy. For this reason, you should ask
conducted (see Question 11) your lawyer ahead of time if there is any-
how the sessions will be kept confi- thing that might be best left unsaid during
dential, and the mediation.
the extent to which lawyers or other
advisers are expected to participate.
6/10 THE LAWSUIT SURVIVAL GUIDE

9. How can my lawyer help set up mostly non-technical, lawyers do not have
the mediation? to prepare the lengthy written legal papers
that are so often required in litigation.
Mediation might be proposed by a lawyer, Nonetheless, a lawyer may still use those
a client, the opposing side or the court. lawyerly writing skills by preparing a Pre-
Once a party decides to mediate, there are Mediation Memorandum or Mediation
several ways a lawyer can help get the Brief. This document summarizes the clients
process moving. position and introduces the mediator to the
Propose the mediation. A lawyer can be clients side of the dispute.
the one to propose mediation to the To the extent this document serves to
other side. The lawyer can informally educate the mediator about the clients legal
raise the possibility of mediation with position, the lawyer does the composing.
the other sides lawyer, then prepare However, the Memorandum is also intended
and send a more formal proposal. to give the mediator a first impression of
Help set up the mediation. A lawyer the clienta personal, rather than legal,
can be helpful in several ways before view of the dispute. For this reason, some
a mediation is actually scheduled. The lawyers devote one section of the Memo-
lawyer can find out whether the court randum to the clients personal statement:
offers mediation for a certain type of the clients views and concerns, in the
case, and if so how that mediation clients own words. Even here, however,
might be started. Or the lawyer can the lawyer can remind the client of impor-
develop information about non-court tant points to make. Before the statement
mediation services, and perhaps goes to the mediator, the lawyer should
individual private mediators. review it to make sure the client has not
Review the mediation agreement. The left out something importantor included
lawyer can review and make suggested something that might make a bad first
changes to the mediation agreement, impression on the mediator.
the written document setting out
ground rules that each side usually
signs to begin the mediation process. 11. What are the actual mediation
(See Question 8.) sessions like?

Mediation usually consists of a combination


10. Does my lawyer send any of meetingsjoint sessions among the
paperwork to the mediator? litigants, the lawyers and the mediator, joint
sessions with the litigants but not the lawyers,
Mediation is long on talking and short on and individual caucuses between the
paperwork. Because it is informal and
MEDIATION 6/ 1 1

mediator and one side only, with or with- how the process actually works, perhaps
out a lawyer present. communicating better with the client than
In the joint sessions with lawyers, each do the dry mediation service brochures and
party and lawyer has an opportunity to the written mediation agreement. A lawyer
present documents, witness statements and can also help prepare a strategy for media-
legal arguments. Whether the party or the tion, by:
lawyer does most or all of the talking in focusing on what the client most hopes
these sessions depends on the partys to achieve in the mediation
preference and the mediators questions. gathering and organizing documents
The mediators primary job is to steer the and other information to present to
parties toward an agreement, not necessarily the mediator
to decide whose legal position is stronger. alerting the client to things not to say,
Sometimes, the mediator will try not only and positions not to take, during the
to resolve the existing dispute but also to mediation sessions, and
figure out how the parties can reasonably explaining the legal arguments that
coexist in the future. Consequently, the support the clients case, as well as
joint and individual sessions with just the those the other side might make.
parties are often as useful as those with the
lawyers. In these sessions, each party may
put in his or her own words the things that 13. If an agreement is reached, does
are personallyas opposed to legally the mediator actually settle the
most important about the dispute and the lawsuit?
other party.
If the parties reach a mediated agreement,
the mediator draws up an outline of its
12. How can my lawyer help me terms while both parties are still in the
prepare for the mediation session? mediation session. However, while this
agreement may set out the basic terms for
From litigating the case, a lawyer will be ending the dispute, settlement of a lawsuit
familiar with documents, witness statements requires certain other, more formal docu-
and other evidence in the dispute. Because ments that the lawyers prepare. (See
litigation lawyers are trained in organizing Chapter 8, Section V.) Both parties and
such material into a coherent story, a their lawyers should review the mediators
lawyer can be a great help in preparing the summary to make sure it accurately reflects
client for the mediation sessions. the basic terms of the agreement, make any
Depending on his or her experience with necessary changes, sign the agreement and
mediation, a lawyer may be able to explain get a copy.
6/12 THE LAWSUIT SURVIVAL GUIDE

Your Lawyer Might See Flaws in Certain Mediated Solutions

Lawsuits attempt to determine who was It is your lawyers job in such a situation
right or wrong in a given dispute, based on to inform you of any legal rights you might
the legal rights of the parties. Mediations, in be giving up in accepting a proposed
contrast, try to fashion a solution that satisfies mediated settlement. That includes the
both parties, without necessarily deciding lawyers estimate of how you would fare if
who would likely prevail in the lawsuit. the lawsuit continued, and the extent to
Sometimes, a lawyer might think the solu- which your rights would be diminished in
tion proposed by a mediator compromises a the future by any ongoing agreement
clients legal rights too much, even though fashioned by the mediator. Only when you
that solution might seem reasonable and have heard these explanations from your
workable to both the client and the other lawyer can you fully judge the benefits and
party. detriments of the mediators proposal.


Chapter 7

Arbitration

Section I: Arbitration Basics ....................................................................................... 7/3


1. What is arbitration? .............................................................................. 7/3
2. What is the format of judicial arbitration? ............................................ 7/4
3. What happens to the lawsuit while the arbitration
process is going on? ............................................................................. 7/5
4. How does a lawsuit end up in arbitration? ........................................... 7/5
5. How does stipulated arbitration work? .............................................. 7/5
6. When are the parties most likely to stipulate to arbitration? ................. 7/6
7. What do the parties agree to in a stipulated arbitration? ....................... 7/6
8. When may the Plaintiff choose arbitration without the
Defendants consent? ............................................................................ 7/7
9. How does a Plaintiff elect arbitration? .................................................. 7/7
10. What are the ground rules for Plaintiff-elected arbitration? .................. 7/7
11. How does mandatory, court-ordered arbitration work? ........................ 7/8
12. When might a court require the parties to arbitrate? ............................. 7/8
13. What are the usual ground rules for mandatory arbitration? ................. 7/8
14. How are arbitrators typically selected? ................................................. 7/9
Section II: Arbitration or Trial? ................................................................................... 7/10
15. What are the advantages of arbitration over trial? ............................... 7/10
16. Can I benefit from non-binding arbitration even if the other
side rejects the arbitrators decision and returns the case
to litigation? ........................................................................................ 7/11
17. Are there reasons to skip non-binding arbitration? ............................. 7/12
18. When should I consider binding arbitration? ...................................... 7/13
7/2 THE LAWSUIT SURVIVAL GUIDE

Section III: Preparing for Arbitration ........................................................................... 7/14


19. How much energy should my lawyer and I spend on a
non-binding arbitration? ..................................................................... 7/14
20. How does a lawyer prepare for an arbitration hearing? ...................... 7/15
21. What documents does a lawyer prepare for an arbitration hearing? ... 7/15
22. What is an Arbitration Statement? ....................................................... 7/16
23. What tactical considerations might apply to the Arbitration
Statement in a non-binding arbitration? .............................................. 7/16
Section IV: The Arbitration Hearing and Decision ...................................................... 7/18
24. What are the basic mechanics of the arbitration hearing itself? .......... 7/18
25. What will it be like when I testify at an arbitration hearing? ............... 7/19
26. How long does an arbitrator take to make a decision? ....................... 7/20
27. What is typically included in an arbitration decision? ........................ 7/20
28. How do I decide whether to accept or reject a non-binding
arbitration decision? ........................................................................... 7/20

How You Can Help Your Lawyer

By Preparing for Arbitration .................................................................... 7/16


ARBITRATION 7/ 3

S
ometimes, the parties reach a point in a lawsuit choose, or are ordered by the
a lawsuit when they are unable to court to use, what is called non-binding
mediate or negotiate a settlement but arbitration. In this form of arbitration, if
have no desire to wageand funda full- either party does not like the arbitration
fledged trial. If so, the parties might agree result, that party may reject the arbitration
to send the case to arbitration. Mutual agree- decisionby filing what is called a Request
ment is not always required for arbitration, for Trial de Novoand resume the lawsuit
however. In some courts, a Plaintiff may process in court. However, all parties can
send certain types of cases to arbitration agree to submit the case to binding arbitra-
without Defendants permission. And a tion, in which the arbitrators decision is a
judge can order certain cases to arbitration final determination of the case. Once the
even if neither party wants to arbitrate. parties agree to binding arbitration, neither
This Chapter explains the types of arbi- party may go back to court to complain
tration available to, or required of, parties about the outcome. Nor may the losing
who are already in a lawsuitreferred to as party appeal the arbitration decision to a
judicial arbitration. The Chapter also higher court (except in extraordinary
explains how to prepare for arbitration, circumstances).
how the hearing process works andfor
cases in non-binding arbitrationhow to
decide whether to accept or reject the
arbitrators decision. All Court-Ordered Arbitration
Is Non-Binding
Binding arbitration replaces a trial. But the
Section I: Arbitration Basics right to a full-fledged trial, with a jury in
most cases, is a fundamental part of our
judicial system. No court can take away
1. What is arbitration?
that right, even if arbitration seems a more
sensible alternative than trial in a particular
Arbitration is an alternative to a courtroom
case. Although a court may require that
trial, in which the parties present evidence
certain lawsuits be halted for a time while
and make legal arguments to an arbitrator
the parties arbitrate, the court may not bind
rather than a judge or jury. The arbitrator
the parties to the result of that arbitration.
then decides the case just as the judge or jury
Each party must be permitted to reject the
would in a courtroom: who wins, who loses
arbitration decision and litigate the case
and how much the loser must pay the winner.
all the way through trial, if the party so
There are two kinds of judicial arbitration.
desires.
In the vast majority of cases, the parties to
7/4 THE LAWSUIT SURVIVAL GUIDE

arbitratorusually a lawyer or retired


Some Disputes Must Be Arbitrated
judgewho decides the case without a jury.
In some states, certain legal disputes never Occasionally, an arbitration is conducted by
get to court because they are required, by a panel of three arbitrators. The parties and
law or by contract, to be settled by non- other witnesses may testify, documents and
judicial binding arbitration. Common ex- other evidence may be presented and the
amples are disputes about health insurance lawyers for both sides may make all the
or HMO decisions. In other disputes, bind- same legal arguments that they would in a
ing arbitration may be required by a written courtroom trial.
agreement between the parties. For example, Besides the absence of a jury, the major
uninsured motorist insurance policies, difference between an arbitration and a
construction contracts and labor contracts courtroom trial is that arbitration is conducted
frequently include terms requiring binding without a trials formality or rigid rules. For
arbitration instead of litigation. example, most witnesses appear at an
These binding arbitrations proceed under arbitration hearing through their deposition
state arbitration rules or under those of the testimony or sworn written statements
American Arbitration Association, which- rather than in person. As a result of this
ever the law or contract in question requires. informality, and because there is no jury,
In many respects, this non-judicial arbitra- arbitration is far quicker and less expensive
tion is similar to the binding arbitration than a trial. And a case usually can get to
discussed in this Chapter. To know exactly an arbitration hearing months or even years
what procedures apply to your case, how- sooner than it would come up for trial in
ever, you and your lawyer must consult the overburdened courts.
the specific rules that govern your non-
judicial arbitration.

2. What is the format of


judicial arbitration?

An arbitration hearing is a kind of informal,


non-courtroom trial that delivers a winner
and loser in the lawsuit and determines all
the issues raised by both sides in the
pleadings, just as a regular trial would. The
arbitration hearing is conducted by an
ARBITRATION 7/ 5

3. What happens to the lawsuit while Private Judging Is Also Available


the arbitration process is going on?
After a lawsuit has been filed, there is
Once arbitration has been requested by the another shortcut through the litigation
parties or ordered by the court, most formal processcalled private judgingin which
lawsuit proceedings are put on hold. How- litigants leave court entirely. Private judging
ever, discovery procedures (see Chapter 4) is an almost exact replica of a lawsuitthe
usually continue until 15-20 days before the same laws apply, and most of the same
arbitration hearing. And informal work on rules and proceduresbut it is conducted
the case, such as investigation of the facts, by private judges (usually retired regular
consultation with experts, witness interviews judges). These private judges work for a
and settlement negotiations, may continue commercial judging service that also
throughout the arbitration process. arranges the physical space and support
staff needed for the trial and all pre-trial
proceedings.
4. How does a lawsuit end up The parties must pay the entire cost of
in arbitration? this service and must accept the results as
binding. Because the judge and staff are
There are three ways in which judicial paid directly by the litigants, they give the
arbitrationarbitration of an active lawsuit parties all the time and energy they require.
may be initiated: So cases in private judging may get tried
by stipulated arbitrationarbitration years faster than they would in regular
to which both sides agree (stipulated court. For the same reasons, however,
arbitration may be either binding or private judging is enormously expensive. It
non-binding, as the parties agree is used mostly in lawsuits between large,
see Questions 5-7) well-heeled companies.
by Plaintiffs election of arbitration
non-binding arbitration initiated by the
Plaintiff, whether Defendant wants to
arbitrate or not (see Questions 8-10), 5. How does stipulated
or arbitration work?
by mandatory arbitrationnon-
binding arbitration which is ordered Stipulated arbitration simply means arbitra-
by the court even if neither party tion to which the opposing parties in a law-
wants it (see Questions 11-13). suit have agreed. The agreement, including
7/6 THE LAWSUIT SURVIVAL GUIDE

specific ground rules for the arbitration (see the parties will have the right to trial
Question 7), is spelled out in a document de novo (a trial from the beginning),
called a Stipulation for Arbitration. The meaning that the arbitration will not
parties file this Stipulation with the court, be binding and either side may reject
which then refers the case to arbitration. the arbitrators decision and return the
This official referral serves to formally halt case to litigation, or
all court proceedings until the arbitration is the arbitration will be binding, mean-
completed. ing that the parties must accept the
arbitrators decision and may not re-
turn to court to continue the litigation
6. When are the parties most likely to or appeal the arbitrators decision.
stipulate to arbitration? In addition, the parties may agree to a
dollar limit on the amount either side may
Stipulated arbitration most commonly takes win; this is usually done only in binding
place after discovery has been nearly com- arbitration. In non-binding arbitration, the
pleted. By then, the case is almost ready for parties can agree to limit the right to trial
trial, and the parties have held enough dis- de novo, usually by imposing a penalty on
cussions to know that a negotiated settle- the side that rejects the arbitrators decision,
ment is unlikely. Though this is the usual if that party wins less (or loses more) at
point for stipulated arbitration, the parties trial than the arbitrator would have awarded.
may agree to it almost any time during the The penalty often consists of paying the
lawsuit. (Some local court rules do not other side all its costs, and sometimes
permit referral to arbitration in the 30 days attorney fees, for the arbitration.
before the trial date, but judges may make In a stipulated arbitration, the parties may
an exception to these rules in the interest select any arbitration service and any set of
of clearing their court calendars.) arbitration procedural rules. They may use
the local courts judicial arbitration system
(if it is available for voluntary arbitrations),
7. What do the parties agree to in a the American Arbitration Association or any
stipulated arbitration? other private arbitration service they choose.
Once the procedural rules and other limits
In a stipulated arbitration, the parties may have been chosen, the lawyers for the two
agree on any limits or procedural ground sides put the agreement into written form
rules they choose. First and foremost, the called a Stipulation to Submit to Arbitration
litigants must decide that either: and file it with the court.
ARBITRATION 7/ 7

8. When may the Plaintiff choose 10. What are the ground rules for
arbitration without the Defendants Plaintiff-elected arbitration?
consent?
Plaintiffs right to elect arbitration, and the
In many courts, the Plaintiff has the option procedures to be used, are determined by
to elect non-binding arbitration in certain each courts own rules. These rules often
cases, whether or not Defendant wants it. include a limit on the amount Plaintiff may
Generally, the Plaintiff can elect arbitration win in arbitration, usually between $25,000
unilaterally only if there are few parties in- and $100,000. Also, local rules often pro-
volved and Plaintiff claims damages below vide that certain casesthose in which
a certain limit. Usually, Plaintiff may not financial compensation is not the most
elect arbitration until the case is at issue, significant relief requestedmay not be
meaning that most discovery and pretrial eligible at all for Plaintiff-elected arbitration.
motions have been completed and the case For example, evictions, domestic relations
is ready to be set for trial. matters, declaratory relief actions and cases
seeking injunctive relief are seldom arbi-
trated.
9. How does a Plaintiff elect Plaintiff-elected arbitration is always non-
arbitration? binding, meaning that either Plaintiff or
Defendant may reject the arbitrators decision
A Plaintiff may elect arbitration by request- and move the case back into litigation if
ing it in a document called an At-Issue unhappy with the outcome. A party does
Memorandum, Trial Setting Statement, Case this by filing a Request for Trial de Novo,
Management Conference Statement or the usually within ten to 30 days of the arbitrators
like. (See Chapter 9, Section I.) In this decision. However, local rules often provide
document, Plaintiff tells the court that the a potential penalty for a Plaintiff who forces
case is ready for trial and provides other arbitration then complains about the result.
informationabout the other parties, In these courts, the Plaintiff must pay the
Plaintiffs claimed damages and the nature other partys entire costs for the arbitration,
of the disputenecessary for a judge to including attorney fees, if Plaintiff wins lower
decide whether an election of arbitration is damages after a trial than the arbitrator
proper under the courts rules. Some courts would have awarded.
require the Plaintiff to request arbitration in
a separate document called Plaintiffs
Election of Arbitration, filed no later than
60 to 90 days before the date set for trial.
7/8 THE LAWSUIT SURVIVAL GUIDE

11. How does mandatory, court- ready for trial. (See Chapter 9, Section I.) A
ordered arbitration work? judge reviews that document and decides if
the case is suitable for mandatory arbitration
In many courts, a judge can send a case to under that courts local rules. Sometimes the
arbitration even if neither party requests or judge makes this decision alone, without
wants it. Each party retains the right to consulting with the parties or lawyers. In
reject the arbitrators decision and return other courts, the judge holds a conference
the case to litigation after this mandatory with the lawyers and the partiescalled
arbitration is over. Nonetheless, courts still something like Arbitration Conference,
push many smaller cases into arbitration. Case Management Conference or Status
Some cases end there; for those that dont, Conferenceat which the judge listens to
the arbitration decision often changes the reasons why either side thinks the case
losing sides view of the case, making the should or should not be sent to arbitration.
parties more likely to settle out of court. The judge makes the final decision, how-
ever.

12. When might a court require the


parties to arbitrate? 13. What are the usual ground rules for
mandatory arbitration?
In courts that use mandatory arbitration,
there are two moments in the litigation pro- If a case is sent to mandatory arbitration,
cess when a judge typically orders a lawsuit court rules usually require that all litigation
into arbitration. The first comes near the procedures cease until the arbitration is
very beginning of the case, immediately completed. An exception is made for
after the Defendant has filed an Answer. A discovery, which most courts allow to con-
judge will look at the amount of money at tinue until shortlyten-14 daysbefore the
stake in the caseand whether there are arbitration hearing. Local rules in many
any issues in the case that make arbitration courts also limit the amount of money either
inappropriateand immediately refer the party may win in mandatory arbitration.
case to arbitration if it qualifies under that Once the arbitrator has been chosen (see
courts rules. Question 14), the arbitrators office notifies
Judges also might order a case to arbitra- both sides of an arbitration hearing date,
tion later in the process, after each side has usually within 30-60 days. As with court
filed an At-Issue Memorandum, Trial Setting dates, it is possible to change the arbitration
Statement, Status Conference Statement, Case date if it conflicts with some important
Management Conference Statement or the event previously scheduled by a lawyer or
like, which tells the judge that the lawsuit is party. However, if changing the date would
ARBITRATION 7/ 9

delay the arbitration more than a certain The list usually includes a mix of lawyer-
timeusually 60 daysafter the arbitrator arbitrators who mostly represent Plaintiffs,
has been selected, the party requesting the and others who defend corporate or
change might have to ask the courts insurance entities.
permission. After receiving this list, each partys law-
Mandatory arbitration is always non- yer does a bit of investigating about these
binding. After the arbitration is over, either potential arbitrators. The lawyers phone
party may reject the arbitrators decision other lawyers, check the kind of work each
and return the case to normal litigation. arbitrators firm does and generally sniff
However, in some courts a party who wins around the legal community to get a sense
the arbitration hearing but requests a trial of whether any of the arbitrators might be
de novo faces a penalty if that party does slightly predisposed for or against either
not do better at trialwhich may include side of the lawsuit. Then, each side rejects
paying all of the opposing sides costs and one potential arbitrator from the list.
attorney fees for the wasted arbitration. This decision can be a crapshoot. An
arbitrator who does legal work mostly for
plaintiffs will not necessarily rule in favor
14. How are arbitrators of a Plaintiff in an arbitration, nor will a de-
typically selected? fense lawyer always find for the defendant.
Nonetheless, since some choice has to be
Once the parties have agreed, or been sent, made, it usually follows these Plaintiffs
to judicial arbitration, their first task is to lawyer/Defendants lawyer lines. When the
select an arbitrator. Under some arbitration decision has been made, each side sends a
rules, certain cases are heard by a panel of Notice of Rejection of Arbitratorin some
three arbitrators rather than only one. The systems, just a letterto the arbitration
arbitration servicewhether run by the service and the other party.
court or by a private companysends to When each party has rejected one pro-
the lawyers for both sides a list of potential posed arbitrator, usually only one arbitrator
arbitrators (usually other lawyers and is left standing. If both sides reject the same
retired judges). If a single arbitrator will arbitrator, the arbitration service chooses
hear the case, the list usually includes three one of the remaining two. (If there are to
choices. If a panel of three arbitrators will be three arbitrators, the list will include
preside, the list usually has five names. If five, and the parties elimination of two
the case involves a highly specialized area leaves a panel of three.) The arbitration ser-
of law, the list might include arbitrators vice then sends out a Notice of Assignment
with professional experience in that field. of Arbitrator.
7/10 THE LAWSUIT SURVIVAL GUIDE

Faster. In todays crowded court systems,


The Parties May Choose Their
it can take anywhere from one to five years
Own Arbitrator
from the time a lawsuit is filed until it
Occasionally, the opposing lawyers know reaches trial. Even after discovery is com-
someone they agree would be an excellent pleted and the case is considered at issue
arbitrator for the case. If the lawyers are ready for trialit may still take another
from the same city, most likely they know year or two. On the other hand, when a
some other lawyers in common. Among case is referred to arbitration, the hearing is
these, they may know someone whom held within months. And the hearing itself
they respect as both knowledgeable in the may last a day or less, as opposed to many
subject of the dispute and absolutely fair. days or even weeks for a jury trial.
If the parties want to choose that person as Cheaper. The arbitration process usually
their arbitrator without going through an is much less expensive than a courtroom
arbitration service, they are usually allowed trial, especially one with a jury. The pro-
to do so. If the arbitration is by stipulation, ceedings have far fewer technical rules than
the parties may simply name the arbitrator a courtroom trial and so require much less
in their agreement. If the arbitration was lawyer preparation. (See Section III.) Because
initiated by the Plaintiff or ordered by the the hearing is much simpler and faster,
court, most courts look favorably on a neither attorney fees nor litigation costs are
choice both parties endorse, and are likely as high as they would be for a trial.
to grant the parties permission to use an
outside arbitrator.

Section II: Arbitration or Trial?

15. What are the advantages of


arbitration over trial?

The main advantages of arbitrating a dispute


instead of waiting for a regular courtroom
trial are speed and reduced cost.
ARBITRATION 7/ 1 1

Arbitration Presentations Are Not 16. Can I benefit from non-binding


Permanent Records arbitration even if the other side
rejects the arbitrators decision and
One of the reasons lawyers are willing to returns the case to litigation?
try non-binding arbitration is that the live
testimony presented at the hearing is usually Yes. Even if a party rejects a non-binding
not recorded. Because their testimony is arbitration award and returns the case to
not recorded, the witnesses are not bound litigation, both sides might benefit from the
by the specific words they utter, which arbitrators assessment of the case. In the
reduces considerably the damage of a midst of litigation, the people most deeply
mistake made at non-binding arbitration. involved often have trouble seeing the
However, in some courts, a written affidavit strengths and weaknesses of both sides.
or declaration submitted in an arbitration The arbitrators assessment of the case
may be used later to impeach a witness often falls somewhere in between what
who testifies differently at trial. (See Chapter each of the parties hoped for. And that
9, Question 48.) A lawyer using sworn dose of reality frequently leads both sides
witness statements in an arbitration must to reduce their expectations. Parties are
be very careful; those statements may forced to consider that a judge or jury
become part of the permanent record in might see the case as the arbitrator did.
the case. This reassessment often brings the parties
Nor are the parties tied to the arguments closer together in their expectations, which
their lawyers make in arbitration. The can lead to a negotiated settlement.
lawyers are free to change their arguments Arbitration may also be useful as a
at trial if they feel that the previous argu- relatively painless dry run through the trial
ments did not work well at the arbitration. process. Because the lawyers and parties
In fact, lawyers sometimes use non-bind- know that the arbitrators decision may be
ing arbitration primarily as a safe proving rejected, they can present their testimony
ground for a clients side of the storyto and legal arguments with minimal stress.
see how well the client and the other party This dry run permits lawyers to work the
perform, how the other sides lawyer pre- kinks out of testimony and arguments, and
sents the case and challenges the clients highlights strengths and weaknesses on
evidence and how a neutral outsider, the both sides.
arbitrator, responds to the competing
stories.
7/12 THE LAWSUIT SURVIVAL GUIDE

requires much less detailed preparation


Would You Do Better Before an
than trial, it still takes a considerable amount
Arbitrator or a Jury?
of lawyer and client energy. Arbitration
Whether you receive the same kind of de- costs are not as high as litigation expenses,
cision from an arbitrator that you might get but they can easily run into many hundreds,
from a jury depends somewhat on the if not thousands, of dollars. And if the
emotional component of your case. An client is paying the lawyer by the hour,
arbitrator, usually a lawyer, is experienced attorney fees for the arbitration can easily
in hearing all sorts of tales about rotten run to several thousand dollars over and
scoundrels, innocent victims and the above other costs. (The potential waste of
related miseries of legal disputes. These both energy and money can be reduced
hardened veterans of the legal wars will somewhat by a low-key approach to the
not respond to a case with the emotion process. See Section III.)
and compassion a jury might provide. For The risk that the arbitration will be a
example, if you are a Plaintiff who has futile, costly exercise often depends on
been seriously injured by the carelessness each partys posture before the hearing.
of a large company, an arbitrator might Large business and insurance company
award you a fair amount of money but not Defendants tend to reject any arbitration
nearly as much as a sympathetic jury award that is not a substantial victorythey
might. Conversely, if you are a Defendant have plenty of money to burn on continued
who is legally responsible for Plaintiffs litigation. And if the parties hold widely
damages only because of some hyper- separate positionsfor example, Defendant
technical legal ruleeven though you denies any responsibility for Plaintiffs
acted in what most people would consider damages and refuses to offer any settlement,
a reasonable, commonsense waya jury or Plaintiff demands a settlement many
might sympathize with you more than an times larger than Defendant is prepared to
arbitrator would. paythen the losing side in the arbitration
almost surely will reject the arbitrators
decision. If, on the other hand, both sides
understand that Plaintiff is entitled to some
17. Are there reasons to skip non- recovery from Defendant and merely dis-
binding arbitration? agree on the amount, they are much more
likely to accept an arbitrators decision
The greatest single disadvantage of non- about damages.
binding arbitration is that, if either side Sometimes, a lawyer believes arbitration
rejects the decision, the process might have would reveal too much about one sides
wasted time and money. Although arbitration strategy for the trial or highlight certain
ARBITRATION 7/ 1 3

weaknesses in that sides case. If the lawyer Saves time and money. The great
believes that the other side is almost certain advantage of any kind of arbitration is
to reject any good result the lawyer could its substantial savings in time and ex-
obtain in arbitration, the lawyer might pense over a trial. Yet in non-binding
counsel the client to skip the arbitration arbitration, a litigant could spend
process altogether and save their time and time, energy and money to win an
energy for trial. arbitrators decision, only to have the
other side reject the decision and go
to trial. This is a particularly serious
18. When should I consider risk for a party who is paying hourly
binding arbitration? attorney fees out of pocket. On the
other hand, if a party believes an
The great majority of parties who agree to arbitrator would decide the case as
arbitrate their cases choose non-binding favorably as a jury, arbitration offers
arbitration because it offers the chance to the great advantage of costing far less
return to litigation if they dont like the and providing an answer far sooner.
arbitration outcome. Many lawyers fear an In binding arbitration, the parties
arbitrators misunderstanding of the facts or dont have to worry about those
incorrect interpretation of the law, from advantages being wiped out if the
which the losing party in binding arbitration other side is unhappy with the out-
would have no recourse. Binding arbitration come.
lacks the escape hatch of rejecting the Avoids involving a jury. Sometimes a
arbitrators unfavorable decision. Moreover, party presents an emotional appeal
binding arbitration lacks the built-in safe- that is likely to win great sympathy
guards of litigation, such as a verbatim from a juryfor example, a vulnerable
record showing the arbitrators misunder- individual who seems to have been
standing of facts or laws, the right to ask wronged by an impersonal corporation.
for reconsideration and the right to appeal On the other hand, a party might
to a higher court. For all these reasons, present an unfavorable picture to a
lawyers most often advise their clients not juryfor example, someone who has
to put all the cases eggs in a binding taken advantage of business sense or
arbitration basket. bargaining power to get the best of
Despite these risks, however, it might make the opposing party in a business or
good sense for some litigants to choose personal transaction. A party who is
binding rather than non-binding arbitration, likely to appear much less favorably
assuming the other side is willing. Binding to a jury might do better if the case is
arbitration can offer these advantages: decided by a professional arbitrator,
7/14 THE LAWSUIT SURVIVAL GUIDE

who is less likely to be swayed by the the arbitration decision and the case will
cases emotional appeal. return to litigation. If the arbitrators decision
Allows for complicated facts or laws. If turns out badly for a party who made little
a case will require the decision maker effort, it wont matter much (in this view)
to sort out complicated facts, an arbi- because the party can request a trial de novo.
trator might do a better job than a jury. However, some lawyers take the position
For technical or otherwise specialized that it is always important to get the best
disputesdisputes over construction result possible in arbitration, and that lawyer
defects, intellectual property or secu- and client should extensively prepare for
rities transactions, for examplethe the hearing. They believe that a positive
parties can choose an arbitrator with result in arbitration might convince the
expertise in the field. Similarly, if there other side to accept the arbitrators decision
is a complex set of legal rules that rather than spend the time and money to
will determine the winner and loser of go through a trial which might have the
the lawsuit, an arbitrator is more apt same outcome. A good arbitration result
than a jury to apply the rules correctly. might also move the other side toward a
So, if one party will rely on a complex good settlement offer.
set of facts or laws while the opposing There are several reasons why a well-
side has a simple or emotional appeal, prepared arbitration with a good result
the party with the complicated case might lead the other side to accept the de-
might do better in front of an arbitrator. cision or to offer much improved settle-
ment terms:
It proves to the other side that the
Section III: Preparing for lawyer and client can put together a
Arbitration good case and are willing to spend
the time and money to do so
It might shake the other partys stub-
19. How much energy should my born, even irrational confidence in its
lawyer and I spend on a non- position (sometimes held against a
binding arbitration? lawyers advice), and
A good arbitration decision might
There are two basic approaches a party affect how the judge who presides
might take to non-binding arbitration. Some over settlement negotiations views the
parties and lawyers treat non-binding arbi- case. (See Chapter 8.) A settlement
tration as a warm-up exercise on which to judge uses the likely outcome of a
spend little time, energy or money. They trial as a major arguing point to push
assume that one side or another will reject a reluctant party to settle. The
ARBITRATION 7/ 1 5

arbitrators decision provides the lawyer will go through the testimony with
judge with a good indication of what the witnesses prior to the hearing. A lawyer
that outcome might be. can also demand that witnesses who work
for or are otherwise under the direction of
the opposing party appear in person at the
20. How does a lawyer prepare for an arbitration hearing. This might be advisable
arbitration hearing? if the witness is important and makes the
other side look bad.
A lawyers first task in preparing for an
arbitration hearing is to figure out what
evidence is needed to present the clients 21. What documents does a lawyer
side of the lawsuit story. Then the lawyer prepare for an arbitration hearing?
must gather this evidence from material
obtained during discovery (deposition A lawyer must prepare certain forms to
testimony, answers to interrogatories and send to the arbitrator(s) and the opposing
documents producedsee Chapter 4) and side, notifying them of the evidence the
from the lawyers independent investigation. lawyer intends to introduce at the hearing.
One of the great cost- and time-saving One formusually called something like
advantages of arbitration is that testimony Notice of Intent to Introduce Documents
from any witness other than a party may be describes written materials to be presented
presented in sworn written statements; at the hearing. Usually, it must list every
witnesses do not have to make a personal deposition transcript, interrogatory answer,
appearance at the hearing. Each side will document and sworn statement the lawyer
already have deposed all the important intends to present. This form must be sent
witnesses, so a lawyer can present a favor- to the other side and the arbitrator(s) ten-15
able edited version of a witnessess testimony days before the hearing.
from the deposition transcript. In practice, A lawyer may also send a Demand That
both sides usually present most of their Witness Appear. This form notifies the
evidence through this short-cutboth have arbitrator(s) and the other side of any
an interest in keeping the arbitration process witness the lawyer intends to have testify in
simple and inexpensive. person at the hearing. If the witness works
However, a party may choose to present for or is otherwise under the direction of
any witness in persona good idea if the the opposing party, this form tells the other
witness is particularly helpful and persuasive. side to bring the witness to the hearing. For
If a lawyer decides that in-person testimony independent witnesses (ones the opposing
by friendly witnesses will help the case, the party does not control), this form asks the
7/16 THE LAWSUIT SURVIVAL GUIDE

arbitration office to issue an official subpoena 23. What tactical considerations might
ordering the witness to appear. apply to the Arbitration Statement
Finally, the lawyer prepares what is called in a non-binding arbitration?
an Arbitration Statement or Arbitration
Brief. See Question 22. A lawyer might choose not to include certain
pieces of evidence or certain arguments in
the Arbitration Statement. If the lawyer
22. What is an Arbitration Statement? believes that the non-binding arbitration is
unlikely to end the case, it might be prudent
An Arbitration Statement or Arbitration Brief not to reveal to the other side exactly how
summarizes the entire case. It is the first the lawyer would present the case to a jury.
description of each partys version of the The lawyer might hold back evidence more
dispute and its legal issues that the arbitrator likely to sway a jury than a professional
sees. The Arbitration Statement: arbitratorfor example, material attacking
describes the parties the other partys credibilityor technical
explains the background of the dispute matters, such as the opinion of an expert,
puts forth the partys version of the about which the lawyer does not yet want
facts to educate the other side.
makes arguments that support the
partys legal positions How You Can Help Your Lawyer
responds to legal arguments anticipated By Preparing for Arbitration
from the other side, and In an arbitration hearing, you have your first
describes the damages suffered (for chance to tell your side of the story under the
Plaintiff), or counters the other sides friendly guidance of your own lawyer. With
claim of damages (for Defendant). your lawyers help, you need to prepare that
The Arbitration Statement can be extremely story, developing ways to emphasize its
detailed and complex, describing precisely strengths and avoid or explain its weaknesses.
what the evidence will show and arguing You must also prepare for questions from the
all the fine legal points in full. In a non- other sides attorney. By this point, you will
binding arbitration, however, a lawyer probably already have been through your
might instead submit only a short, simple deposition, so the uncomfortable experience
description of the case and its legal issues. of being questioned will already be somewhat
If the arbitration is non-binding, the partys familiar. You should review the transcript of
overall approach to the process will dictate that deposition testimony to learn from both
how much time, effort and clients money a its high and low points.
lawyer puts into the Arbitration Statement. There are several other steps you might take
to prepare to testify at the arbitration hearing.
ARBITRATION 7/ 1 7

Review any documents with which you might deposition at Chapter 4, Section V). For non-
be expected to be familiar. And go over binding arbitration, the thoroughness and
crucial aspects of the testimony of other intensity of this preparation depends on how
important witnesses. Your lawyer can help aggressive you and your lawyer have decided
you prepare by: to be in the arbitration process.
identifying documents and testimony for
you to review and explaining why each
is significant
Keeping Your Cool
going over what your lawyer will ask
you when you testify An arbitration hearing may be the first time
discussing how your lawyer hopes you since the case was filed that you come
will respond, and face to face with your lawsuit opponent. It
preparing you for the other lawyers may be the first time you will have to
questions. listen to his or her version of eventsa
If you are entering binding arbitration, this version that, at the very least, will conflict
preparation should certainly include an actual with yours and might even infuriate you.
dry run of your entire testimony, complete To prepare for the hearing, you must get
with cross-examination by another lawyer (see ready to keep your emotions in check and
the discussion of preparing for your own to focus on what you need to say in your
own testimony.
You should also be prepared for the
remarks you will hear from the opposing
lawyer. You might have already felt the lash
of this lawyers cross-examination during
your deposition. But the arbitration hearing
might be the first time you will hear the
lawyers full argumentative talents describ-
ing the caseand perhaps your personal
characterin ways that are offensive or
even hurtful to you. You must be ready to
listen to these remarks without giving an
immediate and angry response. To counter
the other sides characterization of you and
version of events, you must instead rely on
the quality of your own testimony, and on
the skills and preparation of your lawyer.
7/18 THE LAWSUIT SURVIVAL GUIDE

Section IV: The Arbitration testimony is usually much less heated and
Hearing and Decision chaotic, and takes less time, than the partys
deposition.

24. What are the basic mechanics of


the arbitration hearing itself? Work Out a Communication
System With Your Lawyer
Informality is the hallmark of most arbitration
hearings. This begins with the location. The Arbitration hearings tend to fly by quickly.
hearing is usually held in the office of the Many are completed in only a couple of
arbitrator, or at the offices of the arbitration hours. There may not be many breaks
service, rather than in a courtroom. The during which you can consult with your
arbitrator, or panel of arbitrators, conducts lawyer, give helpful comments about
the hearing around a table in a conference things the other side has said or get help
room or library, or perhaps even in an with your own testimony. And because of
arbitrators private office. There is usually the close quarters, it may not be easy to
no court clerk or stenographer. In fact, speak privately to your lawyer while the
there is usually no one present except for hearing is going on. You should work out,
the arbitrator(s), the lawyers and the parties. ahead of time, a way to let your lawyer
Unlike court hearings, which operate with know when you have something important
stiff legal etiquette and formal rules about to say or to ask about privately. Your
how evidence may be presented, arbitrations lawyer will then immediately know when
are fairly simple. Each partys story is pre- to take a break to discuss the matter with
sented through the same kind of question- you.
and-answer process with the lawyers as in a
deposition or a court hearing, but arbitrators
usually are not very concerned about formal Because the lawyers submit full written
objections to the way in which questions legal arguments before the hearing (in the
are posed or answers given. Most of those Arbitration Statement or Arbitration Brief
rules are intended to prevent impressionable see Question 22), arbitrators usually limit
jurors from hearing unreliable things that the lawyers speaking time. Each lawyer
might improperly affect their perception of makes an opening statement, often re-
the case. For an experienced arbitrator, this stricted to five minutes or so. An arbitrator
is not a problemarbitrators are well able already knows what the case is about and
to sort out proper evidence from improper does not need the kind of extensive scene-
without the help of objections and interrup- setting that a jury might find useful. At the
tions from lawyers. As a result, a partys end of the hearing, each lawyer is permit-
ARBITRATION 7/ 1 9

ted a closing argument, which might be often limited to questions that directly
restricted to comments about testimony or probe the crucial issues in the case, without
other evidence produced at the hearing the long side roads into background,
itself. personal life and other peripheral matters
permitted in a deposition.

An Arbitrator Is Not a Mediator


Whos on First?
Although arbitration is much less formal
than a trial, an arbitrators role is very much In a trial, the Plaintiffs side presents its
like that of a combined judge and jury. The evidence first. But that doesnt always
arbitrator listens to testimony, receives mean that the Plaintiff testifies before the
other evidence, controls the proceedings, Defendant. In most states, a Plaintiff may
keeps a harness on the lawyers, considers call the Defendant to testify at trial before
and rules on legal arguments, then renders the Plaintiff or any other witness. Many
a decision. What an arbitrator does not do Plaintiffs lawyers like to put the Defendant
is try to work things out between the parties. on the hot seat before the Defendant has a
Unlike a mediator, whose job is to bring chance to hear any other evidence. This
the parties together, or a judge, who may also allows the Plaintiff to listen to the
try to forge a settlement, an arbitrator Defendant before having to give his or her
begins the hearing without any preliminary own evidence.
attempts to settle the case. However, arbitrators do not always per-
mit this approach. Each arbitrator decides
whether the Plaintiff is allowed to call the
Defendant first or must start with Plaintiffs
25. What will it be like when I testify own evidence. If you are the Defendant,
at an arbitration hearing? have your lawyer find out from the
arbitrator(s) before the hearing what the
A party testifies at an arbitration hearing in witness order will be. If you will have to
the same question-and-answer format as in begin your testimony under hostile ques-
a deposition. Unlike a deposition, however, tioning by the Plaintiffs lawyer, your own
the process is likely to begin with friendly lawyer should prepare you for it. Ask your
questioning from the partys own lawyer, lawyer what points to make and pitfalls to
before cross-examination by the lawyer for avoid during that hostile questioning, as
the other side. Also, an arbitrator or panel well as what to hold back, if possible, until
of arbitrators is likely to curtail cross-exami- your own lawyer asks the questions.
nation. The opposing partys lawyer is
7/20 THE LAWSUIT SURVIVAL GUIDE

Often, the most important aspect of the what other relieffor example, the
hearing is the arbitrators impression of the return of property or the termination
parties testimony. In many cases, an arbitra- of a lease or contracthas been
tor must determine which partys personal granted, and
version of crucial facts seems more likely. whether the losing party is to pay any
As a part of this determination, an arbitrator of the winning partys attorney fees,
may question the parties directly. If an or the costs of litigation or arbitration.
arbitrator asks a question, the answer is In the Arbitration Award, the arbitrator(s)
probably important. Even if the question may briefly explain how and why the
seems minor, the way in which the party particular decision was reached. However,
answers could be significantwhen an an arbitrator is not under any obligation to
arbitrator asks a question directly, he or she explain the decision; many Arbitration
is likely to pay particularly close attention Awards contain only bare-bones statements
to the fullness and honesty of the reply. of who won and how much.

26. How long does an arbitrator take 28. How do I decide whether to
to make a decision? accept or reject a non-binding
arbitration decision?
An arbitrator usually decides the case very
soon after the hearing, usually within ten The parties usually have only a short time
days. If there has been a panel of arbitrators, 15 to 30 daysto decide whether to
it might take a bit longer for the different accept or reject a non-binding arbitration
arbitrators to consider and coordinate their decision. In some cases, the decision is
decision. obvious. If the award is completely, or very
heavily, in one sides favor, the other side
immediately rejects it. However, if the award
27. What is typically included in an is not so clear cutfor example, if the
arbitration decision? decision goes in Plaintiffs favor but not
nearly in the amount Plaintiff soughtthen
Arbitration decisions usually come in the both parties face a decision. In these situa-
form of a document called an Arbitration tions, lawyer and client must consider
Award, a copy of which is sent to lawyers several factors:
for both parties. The Award will indicate: Likelihood of doing better at trial. Law-
which party won yer and client need to have a heart-to-
how much money, if any, the losing heart discussion about whether they
party is to pay are likely to do much better at trial
ARBITRATION 7/ 2 1

than they have in arbitration. They Risk of paying the other sides costs and
should realistically assess the clients attorney fees. If one party has made a
testimony and that of other important claim for the other side to pay its
witnesses. Can it improve? How will it attorney fees, lawyer and client must
play in front of a jury? Will other wit- consider whether the court is likely to
nesses seem better or worse in person grant this request. They must also
than in their written testimony pre- consider the possibility of having to
sented at the arbitration? Can the law- pay the other sides litigation costs,
yer do more at trial? Will the other which will rise sharply if the case is
side be able to repair mistakes made tried. If the arbitration award ordered
at arbitration and present a stronger payment of the other sides attorney
case at trial? fees, the party faces a serious risk that
Costs and benefits. Trials are expensive. a judge or jury will make the same
And if the client is paying the lawyer decision about fees (which by then
by the hour, attorney fees will rise will be much higher).
dramatically. Even if the lawyer is Risk of penalty for not doing better. In
paid on a contingency fee basis, the some courts, a party who requests
lawyers percentage may go up trial de novo and wins less at trial than
sharply as the trial approaches. (See at the arbitration must pay a penalty:
Chapter 1, Section III.) A client must the other sides attorney fees for the
consider whether the added expenses arbitration, or the trial, or both (de-
and fees are likely to offset any added pending on each courts rules). Because
compensation that might be won this penalty is imposed by a courts
(Plaintiff), or reduced damages that arbitration rules, it can be exacted
might have to be paid (Defendant), even if the other side did not request
after a trial. attorney fees in its pleadings.
Chapter 8

Settling a Lawsuit

Section I: Setting Settlement Goals and Starting Negotiations .................................... 8/3


1. Can my lawyer tell me what my case is worth? .................................... 8/3
2. How can I decide how much to offer or accept to settle my lawsuit? ... 8/3
3. What is typically included in a settlement? .......................................... 8/6
4. What is early neutral evaluation? ......................................................... 8/6
5. How do lawyers get informal settlement negotiations started? .............. 8/7
6. When are settlement negotiations most likely to succeed? ................... 8/8
Section II: Getting Help From the Judge: Settlement Conferences ............................. 8/10
7. How do judges assist in the settlement process? ................................. 8/10
8. When do Settlement Conferences take place? .................................... 8/11
9. Where are Settlement Conferences held? ........................................... 8/11
10. What happens during a Settlement Conference? ................................ 8/12
11. Does my lawyer have to file any papers for the
Settlement Conference? ...................................................................... 8/14
12. What can the parties do if they dont reach an agreement at
the first Settlement Conference? ......................................................... 8/15
Section III: Payment Options ...................................................................................... 8/15
13. Are there different ways a settlement amount can be paid? ................ 8/15
14. Why would a Defendant agree to pay a larger settlement
amount over time? .............................................................................. 8/16
15. What factors should the Plaintiff consider when deciding
whether to accept a structured settlement? ......................................... 8/16
16. Does a structured settlement affect my lawyers contingency fee? ...... 8/17
8/2 THE LAWSUIT SURVIVAL GUIDE

Section IV: Partial Settlements .................................................................................... 8/17


17. If there are more than two parties, can some of them settle
their part of the lawsuit while others continue to litigate? .................. 8/17
18. When does it make sense for a Plaintiff to reach a partial
settlement with one of several Defendants? ........................................ 8/18
19. When does it make sense for one of several Plaintiffs to
reach a partial settlement with a Defendant? ...................................... 8/18
20. Can one party challenge a partial settlement made
between other parties? ........................................................................ 8/19
21. When should I seek a judges prior approval of a
partial settlement? .............................................................................. 8/19
22. When should I challenge a partial settlement between the
Plaintiff and another Defendant? ........................................................ 8/20
Section V: Finalizing the Settlement .......................................................................... 8/21
23. What documents are prepared to formalize a
settlement agreement? ........................................................................ 8/21
24. Once the parties have signed the settlement documents,
how is the lawsuit officially ended? .................................................... 8/22
25. How can I be sure that the other side will honor our agreement? ....... 8/23
26. Is the settlement process any different if a government agency
is a Defendant? ................................................................................... 8/24
27. Does a settlement negotiated on behalf of a minor or other
legally dependent person require a judges attention? ........................ 8/24

How You Can Help Your Lawyer

Set the Tone for Settlement Negotiations ................................................... 8/9


Prepare for a Settlement Conference ....................................................... 8/14
SETTLING A LAWSUIT 8/ 3

T
he vast majority of all civil lawsuits Although a lawyer cannot tell a client
are settled before trial; at some point whether a particular settlement would be
in the litigation the parties, through fair or satisfying to the client, it is part of
their lawyers, almost certainly will engage the lawyers job to discuss realistic settlement
in serious settlement negotiations. Some possibilities as the litigation moves along. A
opposing parties discuss settling their lawyer can assess how much the Defendant
lawsuit several times during the litigation might be willing and able to pay (including
process. Other parties might never talk any limits on insurance coverage), what non-
about settlement until a judge requires it on monetary settlement options might be avail-
the eve of trial. This Chapter explains how able, what legal maneuvers might strike a
and when settlements are negotiated, how serious or fatal blow to either side and
a judge can help settle a case, how settle- what a jury might award the Plaintiff, based
ment payments are determined and struc- on the lawyers local experience and jury
tured and what settlement documents are verdicts in similar cases. The lawyer should
necessary to formally end a lawsuit. adjust these assessments after each signifi-
cant development in the case; if a damaging
piece of evidence appears, a party or other
Section I: Setting Settlement key witness does particularly well or poorly
Goals and Starting in a deposition or a judges ruling seriously
helps or harms the clients case, these
Negotiations settlement possibilities will change.
Ultimately, it is the client who must decide
whether to accept or reject a particular
1. Can my lawyer tell me what my settlement. Although the lawyer can provide
case is worth? useful advice and information, only the
client can decide whether a particular
One of the most common questions clients settlement meets the clients needs.
ask their lawyers in the early stages of a
lawsuit is What do you think would be a
fair settlement of my case? Most good 2. How can I decide how much to offer
lawyers will not offer a simple answer. or accept to settle my lawsuit?
There is no mathematical calculation or
legal formula for deciding whether a settle- Lawyer and client must begin discussing
ment is fair. Until the facts in the case settlement in the early stages of the case;
have been fully developed, the lawyer will negotiations with the other side might
not even know the range of reasonable begin even before the first pleadings are
settlement possibilities. completed. From the beginning, lawyer and
8/4 THE LAWSUIT SURVIVAL GUIDE

client should sketch the general outlines of much sharper. And if a party might
a settlement that might be both satisfactory have to pay the other sides attorney
to the client and realistically obtainable from fees after losing at trial, the party must
the other side. However, this assessment consider this huge potential expense
will certainly change as the case goes along. in setting a reasonable settlement goal.
The clients chances of winning may seem Satisfactory amount of money. Both a
to go up or down (and probably both). Plaintiff seeking money and a Defen-
Mounting litigation costs and attorney fees dant being asked to pay it must arrive
may sap the clients willingness to continue at a settlement amount with which
fighting the lawsuit. And both parties ability they would be satisfied. This amount
to meet or accept certain settlement terms is not necessarily what the litigant
may change. As a result, a client and lawyer would like, or thinks would be fair.
usually must periodically revise the settle- A lawyer tries to negotiate an amount
ment goals they set earlier in the case. that would please the client; if the
Some of the primary factors to consider in other side eventually agrees to that
setting, and revising, settlement goals include: amount, thats great. But in setting
Likely outcome. In setting a settlement settlement goals, lawyer and client
goal, client and lawyer must first con- must agree on a figure that the client
sider the cost of failing to settle: Is the would consider satisfactory given all
case likely to end before trial? What is the risks, costs and other stresses of
likely to happen if the case goes to litigationnot what the client would
trial? Which party will win? How much request from a genie in a bottle.
will the loser have to pay? These assess- Realistic amount of money. Its one
ments must be adjusted periodically, thing for a Plaintiff to decide on a
depending on developments during settlement amount that would be
the litigation. (Question 6 discusses satisfactory. But if that amount is more
moments in a lawsuit when the odds than Defendant can pay, it is not a
might shift and therefore when settle- realistic settlement goal. Plaintiff must
ment deadlocks are likely to be broken.) factor in the other sides assets and
Expense of litigating. Client and lawyer income (about which some information
must also consider the cost of litigating. might be available through discovery
If a party wins the case only after a see Chapter 4). If the other side has
long and expensive legal battle, the insurance coverage for the dispute,
victory might be hollow. If a party Plaintiff must consider the policy limits
loses at trial and also has to pay the the maximum such insurance would
other sides litigation costs, the pain of pay. In most cases, these insurance
failing to settle the case will be that policy limits are the most that can be
SETTLING A LAWSUIT 8/ 5

hoped for in settlement. Only a party


Giving Your Lawyer
that has considerable personal or
Settlement Authority
business assets will be able to pay
beyond the insurance coverage. Offers of settlement pop up at surprising
Feasible non-monetary solutions. If times, in unexpected places. Whenever
money is not the only goal of the opposing lawyers find themselves in the
litigation, the parties must figure out same roomthe courtroom (even in an
what arrangements between or among altogether different case), the coffee room
them will work for the future. For ex- during a break in a deposition or the steam
ample, if the dispute is about control room at their local health clubthey might
of a business or property, is there a talk about settlement. The same is true
practical way for the parties to divide whenever they talk on the phone. At any
of these impromptu sessions, the lawyer
or share ownership or control? If
for the other side might make a crucial
dividing control wouldnt work, could
concession or float a settlement figure you
one side buy out the other? If the law-
would accept.
suit concerns employment or tenancy,
Human emotions rule much of what goes
is a continuing relationship possible?
on in a lawsuit. At different times, the party
If not, can the parties agree to part
on the other side might be more or less
company permanently after one side
willing to fight; a settlement offer made
compensates the other? Similarly, if
one day might not remain on the table the
the dispute is over services performed, next. Because of this fast-changing negoti-
could one party complete or redo the ating weather, you and your lawyer must
work, or would that merely invite talk regularly about your settlement goals
more trouble? what you would accept or offer to settle
Time, effort and anxiety of litigation. A the case. If you give your lawyer settlement
party might want to set a relatively low authoritypermission to settle the case
settlement goaleven if the party has without your approval once your settlement
a good chance of winning at trial goals are metthe lawyer might be able to
simply to get out of the lawsuit. Litiga- take advantage of a sudden and perhaps
tion can take years, eat up enormous fleeting opportunity to settle the dispute. In
energy and cause considerable stress cases with many complicated issues, this
and anxiety. Many people are unwill- kind of settlement authority might not be
ing to pay this price, even to get a practical. But if your main goal is just to
higher monetary award. Instead, they win or to avoid paying money, giving your
choose to settle their lawsuits early for lawyer the authority to accept a certain
less than they might have won had settlement figure might allow you to grab
they fully litigated the case. an offer that would otherwise disappear.
8/6 THE LAWSUIT SURVIVAL GUIDE

3. What is typically included in the rights and obligations of the


a settlement? parties regarding any real or personal
property or business interest that is a
In a settlement agreement, each of the subject of the dispute
parties gives up something. Whatever else the rights and duties of the parties
it might include, a settlement requires the under any contract or other ongoing
Plaintiff to end the lawsuit and not to file relationship that is a subject of the
another concerninglawyers say arising dispute
out ofthe same dispute. In exchange, the any actions either party will have to
Defendant agrees to dismiss any countersuit undertake or cease in the future
against Plaintiff. One side usually pays who will pay each sides litigation
money to the other. If the dispute involves costs and attorney fees, and
questions of ownership, control or possession whether the terms of the settlement
of property or a business, those matters, will be confidential.
too, are resolved; either party or both might Because the goal of a settlement is to
agree to give up or transfer control or resolve every aspect of the lawsuit once
ownership of the asset. One or both parties and for all, the parties virtually always give
might agree to perform certain acts, or refrain up the right to sue each other for lawsuit-
from certain conduct, in the future. In law- related claims. Plaintiffs (and Cross-Claimants)
suits with more than two parties, settlement generally agree to accept the settlement
may be negotiated between one Plaintiff amount as payment in full for their damages
and one Defendant, or by all parties simul- even if they later discover that their
taneously. (See Section IV.) damages were more extensive, or the
The parties can negotiate and settle any Defendants conduct was more harmful,
dispute raised in the Complaint or Cross- than they realized. A settlement ends the
Complaint. Ideally, a settlement should lawsuit, regardless of what either party later
resolve every claim, counter-claim and learns about the underlying dispute.
request for damages in the lawsuit. A settle-
ment usually decides some or all of the
following issues: 4. What is early neutral evaluation?
how much money Plaintiff will be
paid by one or more Defendants (or At the beginning of a lawsuit, the opposing
to Cross-Complainants by one or more sides usually have very different ideas about
Cross-Defendants), as compensation what an appropriate settlement would be.
for damages suffered by the Plaintiff Even a lawyer and client on the same side
(or Cross-Complainant) may have very different ideas about how
how, when and in what amounts much a case is worth. Because of these
settlement money will be paid differences, early settlement negotiations
SETTLING A LAWSUIT 8/ 7

often go nowhere. To bridge this gap before any point in the litigation, regardless of
too much time and litigation expense go by, what is going on in the lawsuit. For tactical
both parties might find it useful to get an reasons, however, lawyers often carefully
informal, outside opinion about the case. choose the moment to open settlement
The lawyers and parties can get a more re- discussions. Many lawyers believe that
alistic picture, which might help them come appearing too eager to settle makes the
up with more reasonable settlement goals. other side tougher in negotiations. So,
Lawyers for the parties can arrange an lawyers engage in a certain amount of
outside, neutral evaluation of the case gamesmanship. A lawyer tries to signal
informally, using a lawyer who is known, willingness to negotiate without appearing
or whose good reputation is known, to to wave a flag of surrender. Lawyers may
both. The best choice would be a lawyer initiate settlement discussions in a variety of
with expertise in the subject of the dispute. ways, from sending a formal written settle-
This evaluator might read informal written ment offer to making a casual remark
briefs summarizing the case, hear short pre- during a break in a deposition.
sentations from both lawyers, then deliver
an unofficial opinion about which side is
likely to win the case if it goes to trial and
how much the verdict might be. Both sides
can then use this unofficial opinion to
adjust their views of the case, and perhaps
to move closer to settlement.
The two sides usually split the cost of this
outside evaluation. The neutral lawyer will
probably charge an hourly fee, which might
run to several hundred dollars for each
party. However, if the evaluation brings an
early settlement of the case, this is money
well spent.

5. How do lawyers get informal


settlement negotiations started?

There are no inappropriate times for lawyers


to discuss settlement. Either side may
initiate negotiations with the other side at
8/8 THE LAWSUIT SURVIVAL GUIDE

Formal Offer of Settlement 6. When are settlement negotiations


most likely to succeed?
In most courts, one side can use a proce-
dure known as an Offer of Judgment or Although settlement negotiations may take
Offer of Compromise to call the other sides place during any phase of the litigation,
negotiating bluff. If the Plaintiff seeks only settlement is more likely at certain moments,
money damages, the Defendant may send such as:
the Plaintiff a formal offer stating the settle- Immediately following the pleadings.
ment amount the Defendant is willing to When the first roar of the lawyers has
pay. Plaintiff then has a short timeusually died down, the parties sometimes
10-14 daysto accept this offer. (In some step back and reconsider their options.
states, Plaintiffs may also make these offers, Once Complaints and Amended
agreeing to settle the case if the Defendant Complaints, Demurrers and Answers
offers a certain amount.) have been filed, with accompanying
If the other side accepts the offer, the lawyer saber-rattling (and the first
case is over. If the offer is rejected, the round of costs and attorney fees),
rejecting party increases his or her risk in warring parties often consider trying to
going to trial. If the rejecting party loses at settle their dispute. When faced with
trial, or wins less than what the other side the stark realities of lengthy litigation,
offered, the rejecting party must pay the a party may view compromise with
other sides court costs. These costs may the other side as the lesser evil.
include the sizable fees charged by expert After a surprising piece of evidence
witnesses. In some courts, the rejecting turns up. During discovery (see Chap-
party also has to pay the other sides ter 4), a witness might testify much
attorney fees from: differently than expected, damaging
the date the formal offer was rejected documents might turn up unexpectedly
the date the formal offer was made, or or an analysis of figures or physical
the beginning of the case. evidence might provide some surprises.
If you have made a reasonable offer to If the witness or evidence is important
settle but the other side is stalling, your to the case, both sides might rethink
lawyer may want to send an Offer of their odds of winning the lawsuit. The
Compromise. The risk of having to pay party who lost ground because of the
court costs may jar the other side out of its surprise might be willing to offer
delaying tactics. Even if the other side more favorable settlement terms.
rejects the offer, you will have the right to After a partys deposition. The sheer
collect court costs if the other side wins misery of being bombarded with
less at trial than you had formally offered. hostile questions during a deposition
SETTLING A LAWSUIT 8/ 9

might lead a party to consider a The eve of trial. After almost all the
settlement. Even if the deposition ex- litigating is done, the court will hold
perience does not shake up a litigant, one or more formal conferences in-
the litigants performance may have tended to help settle the case before
shaken the lawyers belief in the trial. (See Section II.) Even if these
strength of their case. Conversely, a formal sessions fail to produce a
party might do superbly in a deposi- settlement, the looming reality of
tion, impressing the lawyers for both trialplus whatever progress toward
sides and thereby improving that settlement was made during the for-
partys settlement position. Because mal conferencemay lead the parties
so much often rides on a partys own to make last-minute settlement offers.
testimony, the days following either So much pressure builds in the days
partys deposition are often a good right before trial, so much is at risk,
time to reevaluate the case and that many lawyers and litigants blink.
initiate settlement talks, or jump-start One side makes a last ditch offer to
negotiations that have been stalled. settle, which is welcomed by the
Immediately before or after an impor- other lawyer and client who are just
tant motion. Certain legal maneuvers as pressured and anxious. Probably
such as a Motion for Summary more cases settle in the two or three
Judgment or Motion for Summary weeks before trialmany on the very
Adjudication of Issues (see Chapter 5, morning of trial, while everyone waits
Section VIII)can drastically change for an available courtroomthan
the course of a lawsuit, or end it during any other period of the long
entirely. Before a judge rules on these litigation process.
crucial motions, the parties fear of
losing may lead them to offer more How to Help Your Lawyer Set the
favorable settlement terms. Parties are Tone for Settlement Negotiations
also more likely to settle immediately Your lawyers ability to negotiate a settlement
after an important motion is decided. is determined in part by his or her relationship
The courts ruling on the motion may with the lawyer on the other side. That relation-
have significantly shifted each sides ship depends in part on prior dealings between
position. Before embarking on more the lawyers and on the quality of your lawyers
litigation, the side that lost the motion legal work during the litigation. But it also
might be willing to change its settle- depends on the posture you want your lawyer
ment offer sufficiently to forge an to take on your behalf: how you want your
agreement. lawyer to approach the lawsuit and the other
side.
8/10 THE LAWSUIT SURVIVAL GUIDE

Initially, you might direct your lawyer to be Settlement Conference (sometimes called a
as aggressive and unyielding as possible, be- Mandatory Settlement Conference) is pre-
cause you are angry at, or want to intimidate, sided over by a judge (or court referee or
the other side. But the other party may ignore commissioner), who listens to both sides
your lawyers posturing, and you might later views of the dispute and of the likely out-
decide you want to settle the case despite come of the case. The judge then serves as
your feelings toward the other party. By then, a kind of mediator, attempting to close the
your lawyer might have a hard time getting gap between what one side offers and the
the other side to negotiate reasonablythe other is willing to accept.
other side might read this changed attitude as Some courts schedule more than one
a sign that you have lost confidence in your Settlement Conference per case and
chances of winning the case, or that you have encourage their judges to spend a lot of
lost the will (or the cash flow) to keep fighting. time and energy trying to coax the parties
In contrast, if you ask your lawyer to make into settlement. In other courts, the judges
it clear from the outset that you are open to do little more than observe negotiations
negotiations, your lawyer will find it easier to between the parties. Regardless of the formal
discuss settlement without appearing to admit procedures, the success of these Conferences
weakness. However, this strategy only works often depends on the personality, style and
if your lawyer simultaneously demonstrates judicial philosophy of the settlement judge.
that you are able and willing to litigate The settlement judge is selected according
thoroughly if negotiations are not fruitful. to the courts local rules. In large master
calendar court systems, the settlement judge
probably has not presided over any pretrial
Section II: Getting Help From proceedings in the case, and will not pre-
the Judge: Settlement side over the trial if there is one. In direct
calendar court systems, one judge usually
Conferences hears all matters pertaining to a specific
case, including the Settlement Conference.
But in some of these courts, a Settlement
7. How do judges assist in the Conference is sent to a judge other than the
settlement process? one who is assigned to preside over the
trial. The purpose of this policy is to ensure
Although the parties may engage in infor- that the trial judge is not influenced by
mal settlement negotiations at any time, what one party did or refused to do in
most courts also require them to participate settlement negotiations.
in a more formal settlement procedure. This
SETTLING A LAWSUIT 8/ 1 1

8. When do Settlement Conferences Mediation Might Work If a Settlement


take place? Conference Falls Just Short
Often, a Settlement Conference judge is
The court usually schedules a Settlement
able to bring the parties close to settling,
Conference during the later stages of the
but not quite all the way to an agreement.
lawsuit, after a date has been set for trial. The
At that point, mediation may be a good
judge might attend briefly to other lawsuit
idea. (See Chapter 6.) A mediator can
business, but will focus primarily on trying
spend extra time with the parties to bridge
to settle the case. (In many courts, settlement
the last gap between themtime a judge
might also be discussed at earlier conferences
might not have. And a mediator may be
held to address discovery and scheduling
more skilled than a judge at helping the
issues, such as a Case Management Confer-
parties overcome their last bit of resistance.
ence, Pretrial Conference or Status Confer-
Also, the parties can speak for themselves
ence. See Chapter 9, Sections I and III.)
in mediation, something that most Settle-
Some courts hold a Settlement Conference
ment Conferences do not allow. If the par-
several months before the trial. However,
ties are interested in going to a mediator, a
most courts schedule a Conferencesome-
judge will likely put the case on hold for a
times in addition to an earlier onein the
brief timea couple of weeks, perhaps
two or three weeks before trial, when the
while the parties try to mediate a resolution.
parties are usually most willing to settle.
In addition to any Mandatory Settlement
Conference, a party can almost always ask
the court to set up an additional conference, 9. Where are Settlement
if the other side agrees. Most judges are Conferences held?
happy to try to settle cases; if both parties
request a Voluntary Settlement Conference, A Settlement Conference does not take
the court will usually oblige and schedule place out in a courtroom with all the
one at virtually any point in the litigation. lawyers and clients together in front of a
This extra Settlement Conference may be public audience (what lawyers call in
particularly useful if the lawyers for both open court). Instead, the conference takes
sides believe they are close to reaching a place in chambers, the judges private of-
settlement but one party or the other is stub- fice next to the courtroom, so that the law-
bornly unwilling to go the extra few yards yers and judge will be encouraged to speak
necessary to reach agreement. Having a judge freely about the case and about the parties.
speak directly to the litigant at that extra To further this openness, no court reporter
Settlement Conference sometimes provokes puts what is said on the record unless
just enough movement to settle the case. and until a settlement has been reached.
8/12 THE LAWSUIT SURVIVAL GUIDE

Much of the Conference May Go 10. What happens during a


On Without You Settlement Conference?
Although almost everything said in a
A Settlement Conference typically takes
Settlement Conference is about you and
place in phases. The judge speaks with
the other party, neither of you will get to
each lawyer and client together, then
hear much of it. You might be asked into
separately with Plaintiffs lawyer, then
chambers for the judge to get a sense of
alone with Defendants lawyer and so on.
your appearance and personalitythat is,
The judge may go back and forth between
how you would appear to a jury. You might
the lawyers several times, then bring them
also be asked in to hear the judges view
together at the end of the process to ham-
of a crucial issue, instead of hearing it sec-
mer out details. If the parties do manage to
ond-hand, through your lawyer. And if you
reach an agreement, the judge usually calls
and the other side reach a settlement, the
all the lawyers and parties into chambers,
judge might bring you into chambers to
along with a court reporter. The judge or a
make sure you fully understand and agree
lawyer states the terms of the settlement
to its terms. Otherwise, the judge and the
on the recordofficially recorded by the
lawyers will do most of the talking behind
court stenographerand the parties are
closed doors, without you. This permits
asked to state that they understand and
the judge and the lawyers to talk freely
agree to those terms.
sometimes with brutal frankness and dis-
In the Settlement Conference, the judge
paragementabout the case, about you
acts as the classic devils advocate, shifting
and the other parties and witnesses.
arguments back and forth depending on
Because you wont hear most of what
the audience. When speaking with the
goes on, you must rely on your lawyers
Plaintiffs lawyer, the judge pushes the
ability to negotiate. By the time you reach
Defendants point of view; the judge tries
a Settlement Conference, your lawyer will
to get Plaintiffs lawyer to admit Defendants
have a detailed knowledge of the facts and
strengths and Plaintiffs weaknesses, and to
law of the case, your settlement goals,
adjust Plaintiffs settlement position accord-
each sides strengths and weaknesses and
ingly. When speaking with Defendants
the best ways to maneuver the other sides
lawyer, the judge reverses roles and argues
lawyer. You must also rely on your
from the Plaintiffs side. A good settlement
lawyers willingness to keep you precisely
judge will concede each partys strong points,
informed about the closed-door sessions
even while arguing the other sides position.
what terms are proposed by the other side,
A judge does not necessarily remain
how your lawyer responds to those terms
neutral during the settlement process. If a
and what the judge has to say about the
judge is convinced that one side has a
case, the parties and the settlement offers.
SETTLING A LAWSUIT 8/ 1 3

stronger case, the judge will probably say depends greatly on that judges personality.
soand put more pressure on the other Some judges give up and send everyone
side to settle. home after one initial meeting with each
In each round of the negotiations, the party. Other judges push and push, pro-
judge tries to get each side to move a little pose innovative solutions, stay after regular
closer to the others position until, perhaps, court hours have ended and bring the
an agreement can be reached somewhere lawyers and parties back another dayall
in the middle. But the amount of settlement in an effort to resolve a case the judge
work any particular judge is willing to do believes can be settled.

What Techniques Does a Settlement Judge Use


to Convince the Parties to Settle?

Sometimes, a judge believes that one side is particularly coming from a judges position
making a very fair settlement offer but the of authority, can be very effective in con-
other side is being unreasonable. Or the vincing a wavering lawyer or client to
judge might believe that both sides are stub- accept a settlement offer or to raise their
bornly refusing to take the final, small step own offer slightly to meet the other side.
needed to reach an agreement. In either of Occasionally, a judge may use one
these circumstances, a skilled settlement partys special eve-of-trial request as lever-
judge can become very persuasive. age for or against that party. For example,
Settlement judges use a variety of methods one side might request a postponement of
to persuade the parties. They often make the trial date, over the strong objection of
forcefulsometimes almost browbeating the other side. A judge can usually grant or
arguments to the lawyer for a stubborn party, deny such a request for any reason. If the
warning the lawyer that no better offer will case is close to settlement, the judge might
be forthcoming and going to trial would be let the other side knowwithout making
a mistake. A judge might order the lawyer any direct connection between the two
to discuss the settlement offer again with mattersthat the judge is likely to grant the
the client, in light of the judges warnings. other sides request if that party doesnt take
Or the judge might say the same thing the last little step necessary to settle the
directly to the client. These arguments, case.
8/14 THE LAWSUIT SURVIVAL GUIDE

11. Does my lawyer have to file how the judge is likely to view the case
any papers for the Settlement what the odds are of winning at trial, if
Conference? the case is not settled, and
what it might cost to go to trial.
Before the Settlement Conference, the law- Based on these factors, you and your lawyer
yer for each party usually prepares a Settle- can arrive at a bottom line for settlementthe
ment Conference Statement to send to the absolute minimum you would accept, or
judge and the other parties. This document maximum you would pay, to settle the case. If
is intended primarily to educate the Settle- money is not the only issue, you must determine
ment Conference judge about the case. It your baseline position on other important
includes a history of the parties and the matters as well (for instance, keeping owner-
dispute, a discussion of the evidence, an ship of a business, holding title to property or
explanation of the legal arguments to be requiring the other side to agree to stop
made at trial and a description of any certain conduct).
settlement offers that have already been You and your lawyer must figure out your
made. bottom line before entering the Settlement
In the Settlement Conference Statement, Conference; a settlement offer made during
each lawyer not only spells out the basic the conference might have to be accepted on
facts about the dispute but also, in the way the spot. If you dont accept, the offer might
those facts and the legal arguments are not remain on the table once the conference
presented, tries to influence the judges is over. The opposing side will begin immedi-
attitude toward the case. The lawyer hopes ately to spend time, energy and money to
that, after reading the statement, the judge prepare for trial; its later offers might be
will enter the Settlement Conference already somewhat less generous to account for these
leaning toward that sides position. (As a expenses.
result, one sides Settlement Conference Of course, the settlement negotiations might
Statement usually sounds very different produce a much better result than your mini-
from the others.) mum or maximum position. But once you
have decided on your bottom line, you can at
How You Can Help Your Lawyer least head for settlement negotiations knowing
Prepare for a Settlement Conference that whatever the other side offers or the
Before a Settlement Conference, you and your judge suggests, your lawyer will understand
lawyer should meet to do an updated evaluation the limits beyond which negotiations should
of the case, including: not go.
what range of settlement the other side
is likely to offer at the Settlement
Conference
SETTLING A LAWSUIT 8/ 1 5

The Settlement Conference Might 12. What can the parties do if they
Be Hard on You dont reach an agreement at the
first Settlement Conference?
The Settlement Conference might be a dif-
ficult experience for you, no matter how If the conference goes well but the parties
well you and your lawyer prepare for it. dont quite reach a settlement, or if some
You may be seeing the other party for the details need to be clarified before final
first time in a long while. You may have to terms can be reached, the lawyers might
sit in the courtroom or hallway within want to schedule another conference with
sight of the other party, perhaps for hours, the same judge. If the lawyers on both
while the lawyers wrangle inside with the sides believe a settlement could be reached
judge. but they did not get much help from the
Also, when your lawyer reports what is Settlement Conference judge, they might try
being said in the judges chambers, you to schedule another conference with a
will hear the full force of the argument different judge. Or the lawyers might urge
against your side of the dispute, as pre- their clients to mediate, if only one stubborn
sented by the other sides lawyer. You party is preventing a settlement. And
might even hear some things about your- regardless of whether the parties agree to
self and your side of the dispute that are further formal settlement procedures, the
extremely unflattering. lawyers can always keep trying to negotiate
Finally, there is the unexpected. No mat- a settlement between themselves.
ter how thoroughly you and your lawyer
prepare, surprises happen at Settlement
Conferences. You might get blindsided by Section III: Payment Options
a damaging piece of evidence or legal
argument revealed for the first time. Or,
the other side or the judge may come up 13. Are there different ways a
with a type of settlement offer that you and settlement amount can be paid?
your lawyer simply have not considered. If
so, you and your lawyer might have to In a standard lawsuit settlement, Defendant
make a difficult decision on the spot; the agrees to pay money to Plaintiff in exchange
offer might not remain on the table after for Plaintiff ending the lawsuit. The money
the conference is over. is usually paid in one lump sum within a
short time after the agreement is reached or
in a few periodic payments spread over a
few months or a year. After receiving the
money, Plaintiffs lawyer formally dismisses
8/16 THE LAWSUIT SURVIVAL GUIDE

the lawsuit. If there are other issues in the hold and invest the bulk of the money over
settlement, such as changing title to property the payment years, keeping the earnings.
or a business, the parties prepare and Because the payments stop if Plaintiff dies,
exchange the necessary papers at the same the annuity company factors into its price
time. the odds (based on Plaintiffs age, health
However, if the cash settlement payment and other actuarial factors) that Plaintiff will
would be large (over $100,000), a Plaintiff die before the company has to pay the full
might suggestor a Defendant offerwhat amount.
is called a structured settlement rather than
a lump sum payment. In a structured settle-
ment, Defendant makes regular payments 15. What factors should the Plaintiff
to the Plaintiff for a fixed number of years, consider when deciding whether to
but the payments end if the Plaintiff dies accept a structured settlement?
before the time is up; Defendant does not
have to continue payments to Plaintiffs A Plaintiff expecting a large settlement offer
heirs. The total amount Plaintiff might should be prepared, through discussions
receive over the full length of a structured with counsel and perhaps a financial adviser,
settlement is much larger than a lump sum to consider a structured settlement. Factors
settlement in the same case would be. to consider might include:
If payments are stretched out over
many years, Plaintiffs initial payment
14. Why would a Defendant agree will be small. Will the first installment
to pay a larger settlement meet Plaintiffs current financial needs?
amount over time? If not, can Plaintiffs lawyer get the
other side to offer an initial lump sum
If there is a structured settlement, Defendant payment, followed by a slightly smaller
does not personally pay the full settlement annuity?
amount. Instead, Defendant purchases an An annuity ends if the Plaintiff dies
annuitya contract to pay Plaintiff a set before the payments finish. Is the
amount every month or yearfor less than Plaintiff likely to live long enough to
the lump sum amount Plaintiff would accept, collect the bulk of the money? Or
and far less than the potential total annuity would the Plaintiff be better off collect-
payments to the Plaintiff. Defendants ing a smaller lump sum immediately,
purchase annuities from finance companies, investing it and passing those assets
which sell them for less than the total pay- to others on the Plaintiffs death?
out might be, as part of a calculated Monthly payments will not give the
economic bet. The annuity company gets to Plaintiff a single large sum. Will this
SETTLING A LAWSUIT 8/ 1 7

unnecessarily limit the Plaintiffs terms of the annuity, or the terms of the fee
ability to invest the money? Or is the agreement, to make up for this shortfall.
Plaintiff or the Plaintiffs family likely
to blow a large lump sum soon after
receiving it? Section IV: Partial Settlements
Plaintiff might have to pay income tax
on the settlement received (except for
settlement amounts paid for physical 17. If there are more than two parties,
injuries, which are generally not sub- can some of them settle their part
ject to income tax). Would spreading of the lawsuit while others continue
the payments out over a number of to litigate?
years offer Plaintiff any tax advantages?
Yes. There is often more than one party on
either or both sides of a lawsuit. For example,
16. Does a structured settlement affect a driver and passenger injured in an accident
my lawyers contingency fee? might seek damages from both the driver of
the other car and that cars owner, or the
If the Plaintiffs attorney is working on a drivers employer if the driver was on
contingency fee basis, that fee would be company business, and perhaps a city or
calculated as a percentage of the present county that carelessly maintained a danger-
value of the structured settlement payments ous roadway. In this situation, one or both
a hypothetical amount that approximates Plaintiffs might settle with the other driver
how much the annuity could be sold for if but continue to litigate against the drivers
it were a commodity exchanged on an employer or the government agency. Simi-
open market. The Plaintiff and Plaintiffs larly, a Defendant might settle with one of
lawyer need to know this present value to the Plaintiffs whose damages are clear but
determine whether the structured settle- continue to litigate with a Plaintiff who is
ment increases or decreases the lawyers claiming much more than the Defendants
contingency fee, and by how much. (Most think the case is worth.
lawyers hire a specialist to calculate this Settlements in these multiple-party cases
present value figure.) Plaintiff and lawyer can present problems. A Defendant might
should discuss this matter when the lawyer not have enough money to fully compensate
is advising the client about the pros and all Plaintiffs. Conversely, each of several
cons of accepting a structured settlement multiple Defendants might want to settle
versus a lump sum. If the lawyer would re- the case separately, for as little as possible,
ceive a lower fee in a structured settlement, to shift the burden of compensating Plaintiff
lawyer and client might try to adjust the to the remaining Defendants.
8/18 THE LAWSUIT SURVIVAL GUIDE

Because of these complications, an indi- early in the litigation. If the Plaintiff needs
vidual party sometimes refuses to settle ready cash, Defendant might get away with
with any other party unless and until all paying a lower settlement than Defendant
have reached a mutual settlement agreement. might face later in the case. Also, the cost
In many other cases, however, a Plaintiff of litigating a multi-party lawsuit can escalate
will settle all claims against one Defendant, quickly, even for a Defendant whose con-
dismiss that Defendant from the lawsuit nection to the dispute is minimal; the more
and continue fighting the remaining Defen- parties and lawyers involved, the higher the
dants. Similarly, one of several Plaintiffs expenses are for everyone. By settling
might settle with the Defendant, leaving the early, a Defendant can avoid the high costs
other Plaintiffs to continue the litigation. A and attorney fees of a long legal battle.
settlement between certain parties that In some cases, though, a Defendant who
leaves other parties in the lawsuit is known settles a lawsuit while other Defendants
as a partial settlement. continue litigating might later have to prove
to a judge that the settlement amount bore
a fair relation to Defendants legal responsi-
18. When does it make sense for a bility in the dispute. (See Questions 20-22.)
Plaintiff to reach a partial settlement This ensures that the settling Defendants
with one of several Defendants? payment to the Plaintiff was not so small as
to constitute a quick-money conspiracy to
A Plaintiff might benefit from settling get Plaintiff some cash while letting Defen-
quickly with one Defendant while continu- dant avoid paying a fair share of Plaintiffs
ing to fight the others. The money Plaintiff damages.
receives can help fund the litigation or
provide ready cash for other needs. Also,
by eliminating one Defendantand that 19. When does it make sense for one of
Defendants lawyersfrom the proceedings, several Plaintiffs to reach a partial
Plaintiffs lawyer might find it easier to settlement with a Defendant?
manage the case. A partial settlement also
gives Plaintiff some sense of security in the If several Plaintiffs sue a single Defendant
battle with the other Defendants. The who has only limited resources, an individual
Plaintiff can more comfortably risk going to Plaintiff might choose to settle quickly, and
trial with the remaining Defendants, and for less money than might otherwise be
possibly losing, because some compensation reasonable, to insure some compensation.
is already in the bank. If Plaintiff waits, Defendant might spend
A Defendant can also benefit from settling most of its resources continuing to fight the
individually with the Plaintiff relatively lawsuit. Or Defendant might use up its
SETTLING A LAWSUIT 8/ 1 9

personal assets or insurance coverage pay- partial settlement is fair or unfair. The court
ing settlements to the other Plaintiffs. will consider such issues as:
the entire amount that Plaintiff is
likely to win
20. Can one party challenge a each Defendants relative share of
partial settlement made responsibility for Plaintiffs damages
between other parties? whether the partial settlement amount
is reasonably related to the settling
A Plaintiff might reach a settlement with Defendants portion of responsibility,
one Defendant while continuing to litigate considering the total amount Plaintiff
against the others. If so, the non-settling is likely to win. Reasonably related
Defendants might believe this partial settle- is a very loose legal standard; an
ment was not made in good faith, meaning amount is reasonable unless it is
that the amount paid was not a fair share of wildly disproportionate to the total
the settling Defendants actual legal respon- amount and to the settling Defendants
sibility for the damages. Instead, the partial potential legal responsibility
settlement might appear to be the settling if the partial settlement amount is not
Defendants unfair escape from responsibility reasonably related to the total, whether
buying out of the lawsuit by offering a the amount is fair anyway because
small but fast sum of money to a cash- the settling Defendant cannot afford
strapped Plaintiff. Plaintiffs are willing to do to pay more, and
this because, in most jurisdictions, any one whether there is any evidence that the
Defendant who was partly the cause of the Plaintiff and settling Defendant have
Plaintiffs damages may be held fully re- cut some sort of backroom deal, such
sponsible for all of Plaintiffs injuries; so, as Plaintiff letting that Defendant off
Plaintiff can continue to seek the full for a small payment in exchange for
amount of damages against any remaining the Defendant helping Plaintiff prove
Defendant. the liability of the remaining Defendants
A remaining Defendant who believes that by providing damaging testimony or
such a partial settlement is unfair may chal- other evidence.
lenge it in court. Or the Plaintiff and the
settling Defendant may go to court first, to
seek a judges decision that the partial 21. When should I seek a judges prior
settlement is fair. In either case, the moving approval of a partial settlement?
party files a Motion to Determine Good
Faith of Settlement. In this motion, each There are some potential advantages for a
party explains to a judge why it thinks the settling Plaintiff and Defendant who reach a
8/20 THE LAWSUIT SURVIVAL GUIDE

22. When should I challenge a partial


settlement between the Plaintiff
and another Defendant?

A motion to challenge the good faith of a


partial settlement is not that difficult or
costly to make. So, at least in terms of time
and money, if one Defendant senses that a
partial settlement between the Plaintiff and
another Defendant is an underhanded move,
it is probably worth making the motion.
But sometimes there is good reason not
to challenge the settlement. In some cases,
partial settlement to ask a judge to formally one Defendant might be better off with the
approve their agreement, rather than waiting settling Defendant out of the case. The liti-
to see if another Defendant challenges it in gation might be less difficult or expensive
court. If the judge determines in advance once the settling Defendant is gone.
that the agreement was made in good faith, Also, because the settling Defendant will
Plaintiff can accept the settlement money not be present at trial, the remaining De-
and get on with the litigation against the fendant might be better able to convince a
other Defendants. The settling Defendant jury that the absent Defendant was the real
can get on with life without fear of being bad guy in the dispute, leading the jury to
dragged back into the lawsuit. If a judge let the remaining Defendant off the hook. If
rejects the settlement, Plaintiff and the the remaining Defendant and lawyer decide
settling Defendant return to litigation or that it is good to see the settling Defendant
further settlement negotiations immediately, go, they might choose not to challenge the
without the false security that the settlement partial settlement, even if it seems fishy.
is valid. For example, in a construction dispute, a
However, there is also a potential down general contractor might not mind when a
side to seeking a judges approval of a subcontractor settles with the Plaintiff. At
partial settlement. There is no way to know trial, the general contractor might be able
whether the motion would be necessary. In to produce witnesses who put all the blame
fact, it might kick a sleeping dog: the motion on the subcontractor. If the subcontractor is
might provoke some opposition to the not there to present a defense, the jury
settlement from remaining Defendants who might more easily find that the general
otherwise would not have interfered. contractor did not cause Plaintiffs problems.
SETTLING A LAWSUIT 8/ 2 1

Section V: Finalizing the with a letter agreement and instead will


Settlement proceed directly to the Release.
Usually prepared by Defendants attorney,
the Release states that the Plaintiff agrees to
23. What documents are prepared to release Defendantto give up the right to
formalize a settlement agreement? pursue this case or to file any other lawsuit
against Defendantfrom liability for all
In most cases, only a few documents are claims Plaintiff has, or might have, arising
needed to finalize a settlement agreement. out of this same dispute. For example, if a
One lawyer usually prepares these docu- lawsuit involves building constructionone
ments, then the other lawyer reviews them. side complains about the quality of the work
If the settlement involves anything other while the other complains about not being
than a simple payment of money for dis- paidthe Release would end the current
missal of the lawsuit, the client and lawyer lawsuit and preclude all future lawsuits
should review the settlement documents between those parties concerning that build-
together to ensure that the client fully ing project, even if the building owner later
understands and agrees to the terms. Once discovered different problems with the work.
a party signs and delivers settlement papers If the parties have a continuing or complex
and the lawsuit is dismissed, the parties are relationship, Plaintiffs lawyer must make
stuck with the written agreement; they are sure the Release does not require Plaintiff
not permitted to complain that the terms in to give up the right to sue Defendant for
the documents were different from what claims unrelated to the present dispute. For
they believed the agreement to be. example, if Plaintiff sued a neighbor for
Most settlements are reached in meetings damage to Plaintiffs property caused by
or phone calls between the lawyers. One uncontrolled water run-off, the Release
lawyer then puts the agreed terms in a should not cover any other damage the
letter and sends it to the other side. If the neighbor might cause. The neighbor might
other side makes no changes or objections also have a tree whose roots are busy
to what is stated in this letter agreement, destroying Plaintiffs pipes or a wall that is
those terms become final. If an agreement going to collapse onto Plaintiffs property.
to end the lawsuit was reached at a formal Because these problems are entirely unre-
Settlement Conference with a judge, the lated to the water damage, they should not
judge usually has the settlement terms be included in the Release. Plaintiffs lawyer
officially recorded by the court steno- must make sure the language of the Release
grapher with all the lawyers and parties is not so broad as to cover these unrelated
present. If so, the lawyers might not bother issues.
8/22 THE LAWSUIT SURVIVAL GUIDE

Keeping Settlement Terms Confidential

To protect their public image, many Defen- admission of any wrongdoing or legal
dants repeatedly denyin court and out responsibility. Second, they insist that the
any wrongdoing, even if they know they terms of the settlement, including any money
will eventually be forced to take legal paid, remain confidential: if Plaintiff or any-
responsibility for their actions. But a settle- one associated with Plaintiff reveals the
ment is hard to deny. Paying a settlement settlement terms, Plaintiff has to refund the
indicates at least some small admission of settlement. Some Defendants even try to get
responsibility, no matter how much De- the Plaintiff to agree not to discuss any of the
fendants claim it was merely to avoid the events that led to the lawsuit. In some courts,
greater cost of further litigation. The settle- a judge must approve any such confidentiality
ment amount reveals how much the Defen- agreements.
dant was able and willing to payand If youre a Plaintiff, such demands may be
perhaps, the strength of Plaintiffs case. very irritating. But if you do not agree to
Many Defendants want to avoid public them, particularly with a large corporate
revelation of a settlement, particularly if they Defendant, the entire settlement might be
are large businesses that may face other off. If Defendant insists on confidentiality,
current and future lawsuits. So Defendants you will have to decide whether you are
often demand two conditions as part of any willing to continue litigatingperhaps all
settlement agreement. First, they want the the way through trialto preserve your
settlement document to state that it is not an right to talk freely about the dispute.

24. Once the parties have signed the even if one party has a change of heart.
settlement documents, how is the Once the Dismissal With Prejudice is filed,
lawsuit officially ended? the party who filed the Complaint is forever
barredlegally preventedfrom filing a
A Plaintiff formally ends a lawsuit by filing lawsuit against the same opposing party re-
a Dismissal With Prejudice, sometimes garding that same dispute. Plaintiffs lawyer
called a Notice of Dismissal or Stipulation files this Dismissal after both sides have
for Dismissal. The term with prejudice signed the Release and any other settlement
means that the case cannot be filed again, documents, and the settlement money or
SETTLING A LAWSUIT 8/ 2 3

other property has been exchanged. If De-


The Lawyers Handle the Money
fendant filed a countersuit against Plaintiff
(see Chapter 3, Section III), Defendant files If you are a Plaintiff, you will probably
a Dismissal of that action, too. receive some money, either from Defen-
dant or Defendants insurance company,
to settle your lawsuit. But instead of going
25. How can I be sure that the other directly to you, the money first goes to
side will honor our agreement? your lawyer, who puts it in the bank in
what is called a trust accountan
Some settlements require more than a mere account separate from the lawyers own
exchange of money or property. A settle- money. The payment is held in this
ment might require one or both parties to account as a kind of escrow. Once you
do, or not do, something in the futurefor sign, exchange and file all the necessary
example, to refrain from operating a com- settlement and dismissal documents, your
peting business. If the settlement includes lawyer will pay you your settlement
promises regarding future conduct, the amount out of this account. You can sign
parties may file what is called a Stipulation those final documents knowing that the
for Judgment or Judgment Pursuant to money has already been given to your
Stipulation instead of filing a Dismissal. This lawyer.
document does not dismiss the lawsuit but This escrow arrangement also ensures
instead declares an official outcome to the that the lawyer gets paid. Your lawyer may
casethe Judgmentthat spells out the withdraw from the trust account any
terms by which each side must abide. If a amounts the lawyer has advanced for
disagreement later erupts about whether a litigation costs that you have not yet
party is conforming to the settlement, either reimbursed. Your lawyer may also take out
side may file a simple motion to have a attorney fees, either unpaid portions of
judge decide if the Judgments terms are hourly bills already earned or the entire
being violated. If the case had been dis- fee amount if the case was handled on a
missed instead, the settlement agreement contingency basis.
would be legally considered just another
contract, and enforcing it would require
much more complicated court procedures,
perhaps even an entirely new lawsuit.
8/24 THE LAWSUIT SURVIVAL GUIDE

26. Is the settlement process any 27. Does a settlement negotiated on


different if a government agency is behalf of a minor or other legally
a Defendant? dependent person require a judges
attention?
If a Plaintiff sues a public entity (a federal,
state or local government or government Yes. In the vast majority of cases, a settle-
agency), reaching an agreement with the ment is made between the parties, without
governments lawyer does not necessarily the need for court approval. But in a few
end the lawsuit. Instead, the Plaintiff has to circumstances, the parties must get permis-
waitoften for monthswhile the govern- sion before a settlement becomes final. This
ment lawyer gets approval for the settle- requirement applies to cases in which a
ment from the government agency itself. minor or other legally dependent person is
Governments routinely approve settle- a party. In these cases, the lawsuit repre-
ments. On rare occasions, however, a sentativeguardian ad litem (see Chapter
government entity may question or disap- 3, Section IV)of a minor or other depen-
prove a settlement. This seems to happen dent person must apply to the court for
most often when the settlement includes approval of the settlement terms. A judge
payment from public funds for high private examines both the settlement terms and the
attorney fees. Local governments are amount of attorney fees and litigation costs
particularly sensitive to public criticism for to be paid by the minor or other dependent
using local tax money to pay what are person.
considered high fees to private lawyers The court usually approves the attorneys
who have sued them. If a settlement runs rateeither contingency or hourlyat the
into this kind of roadblock, Plaintiffs beginning of the case. (See Chapter 3,
lawyer might have to renegotiate. Often a Section IV.) At the end of the case, a judge
minor change, perhaps involving slightly reviews the billing to make sure there are
smaller attorney fees, does the trick. The no improper charges or inflated hours. The
government lawyer often knows why the lawyer must file papers (called something
settlement was rejected, and so might have like Motion for Approval of Settlement on
ideas about how the terms can be changed Behalf of Minor) that describe the case and
to satisfy the government body and get the the settlement terms and outline the work
settlement approved. the lawyer has done. Usually, no one needs
to appear in court. If a judge finds some-
thing to question, however, the lawyers
and parties might be notified to show up in
court to explain.
Chapter 9

Trial

Section I: Setting the Trial Date .................................................................................. 9/4


1. What must my lawyer do to get the case set for trial? ........................... 9/4
2. When can my lawyer file the document requesting a trial date? ........... 9/4
3. What information does the trial setting document contain? .................. 9/4
4. How does the other partys lawyer respond to a request for
a trial date? ........................................................................................... 9/5
5. How is the trial date set? ...................................................................... 9/6
6. Do my lawyer and I have any say in the setting of a trial date? ............. 9/6
7. Can the trial date be changed if a lawyer or party becomes
unavailable, or is unable to prepare in time? ........................................ 9/7
8. Will my trial actually begin on the scheduled date? ............................. 9/9
9. What happens to my case if the trial does not begin on
the scheduled date? .............................................................................. 9/9
Section II: Judge or Jury? ........................................................................................... 9/10
10. When do I have a right to a jury? ........................................................ 9/10
11. Am I entitled to a jury if the Complaint seeks both
equitable relief and monetary damages? ............................................ 9/11
12. If a jury is available in my case, should I request one? ....................... 9/11
13. How and when does a party formally request a jury? ......................... 9/12
Section III: Pretrial Proceedings and Conferences ...................................................... 9/13
14. What is the normal order in which evidence is presented at trial? ...... 9/13
15. Can a party request a change in the usual order of evidence at trial? ... 9/13
16. Can the parties change the order in which legal issues are
presented at trial to save time and expense? ....................................... 9/14
17. Prior to trial, can a party request that the judge exclude
certain evidence? ................................................................................ 9/14
9/2 THE LAWSUIT SURVIVAL GUIDE

18. What is a Pretrial Conference? ........................................................... 9/16


19. What does a judge decide during a Pretrial Conference? ................... 9/16
20. What is a Pretrial Order? .................................................................... 9/16
Section IV: Preparing for Trial ..................................................................................... 9/17
21. What legal papers does my lawyer prepare for trial? .......................... 9/17
22. What preparations does my lawyer make immediately before trial? ... 9/18
23. How much direction can I expect my lawyer to give me
about my trial testimony? ................................................................... 9/21
Sections V-VIII: Trial ..................................................................................................... 9/22
Section V: Getting a Judge ........................................................................................... 9/22
24. When my case is called for trial, how is a trial judge selected? .......... 9/22
25. Do I have any choice about the judge named to preside
over the trial? ...................................................................................... 9/23
26. What happens when the parties and lawyers first arrive at
the trial judges courtroom? ................................................................ 9/24
Section VI: Jury Selection ........................................................................................... 9/26
27. In a jury trial, how are the initial candidates for the jury selected? ..... 9/26
28. How are prospective jurors sent to the courtroom? ............................ 9/27
Sample Courtroom ................................................................................... 9/29
29. How does the jury selection process begin? ....................................... 9/30
30. Will my lawyer get to question prospective jurors directly? ................ 9/31
31. What do the lawyers hope to gain from the voir dire? ........................ 9/31
32. If a prospective juror indicates a problem with being impartial,
does that automatically disqualify that person from the jury? ............. 9/34
33. When can a lawyer remove a juror without having to
prove cause? ................................................................................... 9/35
34. When is the jury officially selected? ................................................... 9/37
35. What are alternate jurors and how are they selected? ........................ 9/37
Section VII: Witnesses, Evidence and Arguments ......................................................... 9/38
36. When do the jurors first hear a lawyer fully describe what
the case is about? ............................................................................... 9/38
37. When does the Defendants lawyer give an opening statement? ......... 9/38
38. How is evidence presented at trial? .................................................... 9/39
39. What is a stipulation and how is it used to introduce evidence at trial? .. 9/40
40. Do the judge and jury ever leave the courtroom to see evidence
first-hand? ........................................................................................... 9/40
41. In what order do witnesses appear at trial? ......................................... 9/41
42. Does each party have a second chance to put on evidence? .............. 9/42
TRIAL 9/ 3

43. In what order do the lawyers question a witness? ............................... 9/42


44. What rules does the judge use to decide whether
information may be admitted into evidence and therefore
be seen or heard by the jury? .............................................................. 9/43
45. How does a judge decide whether a question is proper or a
writing is admissible into evidence? ................................................... 9/44
46. What happens if the jury hears inadmissible evidence before
the opposing lawyer has a chance to object? ..................................... 9/45
47. Is there anything a judge can do if a lawyer or witness says
something to improperly influence the jury, or engages in
serious misconduct during trial? ......................................................... 9/47
48. What happens if a witness at trial says something different
from what that witness said previously? ............................................. 9/47
49. What role do expert witnesses play at trial? ........................................ 9/48
50. What must a lawyer do to qualify a witness as an expert? .................. 9/48
51. What can the other partys lawyer do to oppose an experts
testimony? ......................................................................................... 9/50
52. Are closing arguments and jury instructions connected? .................... 9/50
53. In what order do the lawyers give their closing arguments? ................ 9/50
54. Are there any limits on what a lawyer can say in closing argument? ..... 9/52
55. What are jury instructions meant to accomplish? ............................... 9/53
Section VIII: The Verdict or Decision ............................................................................ 9/53
56. How does a jury deliberate? ............................................................... 9/53
57. May the jury communicate with the lawyers or the judge
during deliberations? .......................................................................... 9/54
58. What types of verdicts may juries reach? ............................................ 9/55
59. What happens if the jury cant reach a verdict? .................................. 9/56
60. If the jury reaches a verdict, how is it communicated to the
parties and lawyers? ........................................................................... 9/57
61. May a lawyer request that individual jurors be questioned
about the verdict? ............................................................................... 9/57
62. If there was no jury for the trial, how does the judge deliver
a verdict? ............................................................................................ 9/57
63. What is the purpose of a judges Findings of Fact and
Conclusions of Law? ........................................................................... 9/58

How You Can Help Your Lawyer

Prepare for Trial ...................................................................................... 9/20


9/4 THE LAWSUIT SURVIVAL GUIDE

A
lthough the vast majority of civil If there is a conference or hearing, the
lawsuits are resolved before trial, a judge discusses the case with the lawyers
small number of cases are not. If and picks a date for trial.
and when a case does get close to trial, the In a few courts, there is no need to file
pace of litigation steps up considerably. As any document notifying the court that the
a result, the clients general confusion about case is ready for trial. Instead, the lawyers
the lawsuit process tends to rise sharply, as simply wait for the court to schedule a Trial
do attorney fees and litigation costs. This Setting Conference (sometimes called a
Chapter slows things down a bit by explain- Status Conference), at which the judge
ing how a case is brought to trial, how inquires about the progress of the litigation
lawyer and client prepare for trial and what and chooses a trial date.
the trial itself is really like.

2. When can my lawyer file the


Section I: Setting the Trial Date document requesting a trial date?

This section explains what steps a lawyer In a court with a large volume of cases, a
must take to set a case for trial. lawyer usually files a trial date request as
soon as possible after most discovery and
pretrial motions have been completed. The
1. What must my lawyer do to get the lag time between filing the request and the
case set for trial? actual date the court assigns for trial might
be as much as a year, so the earlier the
When pretrial litigation proceduresplead- request is filed, the sooner the trial. In less
ings, discovery and motionsare nearly crowded courts, lawyers typically wait until
complete, either side may file a document all discovery and other pretrial procedures
informing the court that the case is at issue are completed before requesting a trial date.
(ready to be set for trial). This document is
typically called an At-Issue Memorandum,
Memorandum to Set Trial Date or, in some 3. What information does the trial
courts, Motion to Set Trial Date. Once the setting document contain?
proper document is filed, the court:
picks a trial date and notifies the parties Each partys At-Issue Memorandum or
calls the parties into court for a Trial Motion to Set Trial Date typically:
Setting Conference, or describes the nature of the case
calls for a hearing on the Motion to states whether a jury is demanded or
Set Trial Date. whether the party is instead willing to
TRIAL 9/ 5

have the case decided by a judge important discovery still needs to be


alone scheduled
gives an estimate of the time required discovery disputes are yet to be
for trial, and resolved, or
describes the latest settlement offers. significant pretrial motions have not
In the memorandum or motion, the party yet been heard.
may request a Pretrial Conference (in courts
where such a conference is not mandatory Lawyer Fees Will Jump Once the Case
see Section III, below). The party may also Is Set for Trial. Your attorney fees and
argue that the trial should be set sooner litigation expenses will begin to rise sharply
than it ordinarily would, or be set within a when a trial date is set, or shortly thereafter.
specific window of time. (See Question 6 Your lawyer must begin preparations for trial
for a discussion of the reasons why a case fairly soon after the trial is scheduled. The
might be specially scheduled.) The parties earlier the trial date, the faster the lawyer has
may also alert the court to any unusual to crank up the trial preparation machinery.
features of the case that might require This can run up many lawyer hours fairly
special handling at trial. For example, if quickly, particularly if there will be a Pretrial
one issue might end the case entirely Conference (see Section III). If you are paying
eliminating the need for the rest of the your lawyer a contingency fee, your fee agree-
trialboth parties might want that issue ment most likely provides that the fee will rise
heard first. automatically (for example, from 33% to 40%)
when a trial date is set or within 60 to 90 days
of trial. (See Chapter 1, Section III.) Litigation
4. How does the other partys lawyer expenses also tend to rise soon after a case is
respond to a request for a trial date? set for trial; expert witnesses must be deposed
and trial exhibits prepared, among other
When one party files an At-Issue Memo or incidental costs.
a Motion to Set Trial Date, the other side Because of this abrupt rise in fees and costs,
files a response. The party might file an At- you should talk to your lawyer before he or she
Issue Memo of its own or another document seeks to have the case set for trial, especially
agreeing that the case is ready to be set for if you are likely to get an early trial date. If
trial, although perhaps disagreeing about you believe that you are close to settling the
certain case details or scheduling needs. Or case, you might want to have your lawyer try
the other side may file an opposition argu- further negotiations before setting a trial date.
ing that the case is not ready for a trial date On the other hand, sometimes the other side
and explaining why. A party might oppose makes a reasonable settlement offer only after
setting the case for trial if: you force the issue by setting a trial date. In
9/6 THE LAWSUIT SURVIVAL GUIDE

this situation, you might ask your lawyer to An older party may request an early trial
delay trial preparations for a short time after date. Laws in most courts require that trials
the trial date is set (but not so long as to involving parties over the age of 65 or 70
jeopardize trial preparations), or hold off on automatically move to the top of the sched-
raising your contingency fee, while a new ule (in order to ensure that person a day in
round of settlement negotiations takes place. court while he or she is still alive and
relatively healthy). A lawyer who represents
an older client may ask for this special
5. How is the trial date set? scheduling in the At-Issue Memorandum or
in a Motion for Preference. The party may
Once the court has been notified that the also request an early trial date at the Trial
case is ready to be set for trial, it picks a Setting Conference.
trial date based on its own calendar. In A party may also request an early trial
direct calendar courts (in which a single date if the legal cut-off point for trial is
judge handles every aspect of a case from approaching. Many courts require that a
the first motions all the way through trial), case be brought to trial within a certain
including federal courts, the judge assigned number of years from the filing or serving
to the case is likely to call the lawyers in of the Complaint. If the case is not brought
for a Trial Setting Conference. At this Con- to trial within that time, it is dismissed and
ference, the judge asks the parties how long Plaintiff is not permitted to file it again.
the trial might take, then finds a spot for it When a case is nearing such a final cut-off
in that judges individual court calendar. In date, the lawyer for the Plaintiff may ask
master calendar courts (in which the trial the court to specially assign a trial date
judge is assigned only on the date of trial), within the permitted time period. A lawyer
there may be a Trial Setting Conference, or might make the same request if a party is
the court clerks office might select a trial seriously ill and needs the trial held as soon
date based solely on the next available slot as possible. In either case, the lawyer may
in the entire courts trial calendar. raise these concerns in the At-Issue Memo-
randum, or formally request an earlier trial
by filing a Motion to Advance Trial Date.
6. Do my lawyer and I have any say in Other circumstances might prompt a
the setting of a trial date? lawyer to ask the court for a trial date within
a specific time frame. For example, if a
In some circumstances, a party may have a party or key witness is only in the state
good reason for trial to be scheduled within during a certain part of the year, a lawyer
a specific time frame. If so, the party may might ask that trial be set during that time.
request a trial date within that period. If the lawyer or a crucial expert witness has
TRIAL 9/ 7

other commitments later in the year, the A judge will consider several factors in
lawyer might request a trial date before deciding whether to postpone a trial,
those other obligations begin. In these types including:
of situations, a lawyer may file a Motion to Proximity to the trial date. A judge is
Specially Set Trial Date. less likely to grant a request to continue
trial made shortly before the trial date.
By the time trial is near, the other
7. Can the trial date be changed side will already have spent much
if a lawyer or party becomes time, energy and expense preparing.
unavailable, or is unable to However, judges do sometimes agree
prepare in time? to continuances even on the morning
of trial, if the delay is unavoidable.
During the trial setting process, a lawyer (See Question 8.)
informs the court of dates when the lawyer Prior postponements. A judge is less
or client would not be available for trial likely to grant a partys request to
because of prior commitments. But because continue the trial date if the same
trial dates are often set well in advance, a party has previously obtained one or
lawyer or client cannot always anticipate a more postponements. Even if the other
conflict that later arises. A lawyer, client or party requested a prior postponement,
key witness might develop a serious health the judge might hesitate to grant
problem that would prevent participation in another delay. Judges do not like to
a trial at the scheduled time. More often, continue a trial too often regardless of
though, a lawyers work schedule creates who asks for it.
the conflict. Likelihood of actually going to trial on
If other commitments would prevent a the date. In master calendar courts,
lawyer from appearing at trial, or from many cases are scheduled for trial on
properly preparing the case for trial, that the same date, but only a few will
lawyer usually must ask the judge for a actually be sent to a courtroom for trial
continuance (postponement) by filing a when the day arrives. (See Question
Motion to Continue Trial Date. The other side 8.) The likelihood of any given case
may oppose it, just like any other motion. going to trial on the scheduled date
But even if the other side does not actively depends mostly on how long ago the
oppose a continuance, a judge might still Complaint was filed or the trial date
deny it if the lawyer does not have a good was set. If a case is fairly newthis
reason for the request. Once a case is ready is its first or second scheduled trial
for trial, the court will not want to postpone dateit might not go out to trial in a
it any longer than necessary. crowded master calendar court. A
9/8 THE LAWSUIT SURVIVAL GUIDE

judge is more likely to grant a con- likely to actually begin because of the
tinuance for such a new case than for courts crowded trial calendar. But
one with a realistic chance of begin- sometimes, the conflict is between
ning trial on the scheduled date. different trials in different courts. In
Age of the case. Judges do not like to these circumstances, judges follow
postpone trials in cases that have been these general rules in deciding which
in litigation for a long time. Postpone- of the competing cases will take
ment might push the case close to the precedence:
cut-off date when a lawsuit must be a criminal case takes precedence
either tried or dismissed for good. Even over a civil case
if this cut-off is not imminent, judges a federal court trial takes prece-
do not like to delay cases that are dence over one in state court
already long in the tooth. a superior (or other higher branch)
Length of delay. A judge is more likely court trial takes precedence over
to grant a continuance for a week or municipal, justice or common
two than for months. However, most pleas court, and
court schedules are so full that asking a trial scheduled earlier takes
for a short postponement results in a precedence over a trial scheduled
long one; the next available trial date later in the same level court.
might be months away. These are not inflexible rules,
Reason for continuance. Some reasons however. A judge may consider other
for a continuance request are beyond factorsand even speak to the judge
the control of the asking party, such as responsible for the other trialin
an unexpected serious health problem making a decision.
for a lawyer, client or key witness. A Prejudice to the other side. The court
judge has little choice in such a case will consider how a postponement
but to postpone the trial. However, might negatively affect the other side.
delays are most commonly requested The judge might deny a continuance
because of scheduling conflicts, simply because the other side does
particularly with a lawyers (or occa- not want to wait any longer for trial.
sionally a clients) other courtroom But if the other side offers specific
appearances. The trial takes precedence reasons why a trial postponement
over non-trial court appearances in would be harmfulfor example, if a
other cases. The court might make an witness, attorney or party might not
exception if an important court be available laterthe judge will be
appearance is scheduled in another even less likely to grant the continu-
case while the case set for trial is not ance request.
TRIAL 9/ 9

8. Will my trial actually begin on the cases set for trial on any given day are
scheduled date? delayed.

What happens when a client and lawyer go


to court on the morning of the first scheduled 9. What happens to my case if the
trial date depends on the courts calendaring trial does not begin on the
system. In direct calendar courts, where the scheduled date?
same judge hears the case from beginning
to end, a high percentage of cases actually When no courtroom is available for trial, or
begin trial on the first date for which they when for any other reason a case does not
have been scheduled. However, even in begin trial on the scheduled date, the trial
these courts trial does not always start on is postponed in one of several ways. The
the first scheduled date. One party might presiding judge in a master calendar court,
ask for a last-minute postponement based or the trial judge in a direct calendar court,
on unforeseen and unavoidable circum- may simply pick another date some months
stances. (See Question 7.) Or, the court off and immediately inform the parties. Or,
may experience an unexpected judicial the judge might bring the parties back to
logjama criminal case, or a civil case with court later for another Trial Setting Confer-
some emergency or priority, might sud- ence, at which a new trial date is set. (See
denly take precedence over the scheduled Question 5.)
trial. Often, however, a judge asks the lawyers
Most master calendar courts are just the and parties to wait and see if a courtroom
oppositetrials rarely begin there on the becomes available. In this situation, the
first date for which they are scheduled. All judge keeps the case on stand-by for trial,
the lawyers and parties in cases set for trial sometimes called trailing. Although there is
on a particular date report to a central no courtroom presently available, the judge
courtroom, usually the department of the wants the lawyers and parties to remain
presiding judge. This central court then sends prepared to go to trial in case a courtroom
as many cases to trial as there are judges opens up in the next few days. Trailing is
and courtrooms available. For any given much more common in master calendar
date, however, these master calendar courts courts, where a trial might begin in any
schedule far more cases than the courts can judges courtroom that becomes available.
accommodate. This ensures that no matter Courtrooms become available when
how many cases settle or need to be post- another case sent to trial settles at the last
poned right before trial, there are always moment or when another trial that has
enough trials to fill all the courtrooms. As a been going on for awhile finally finishes.
result of this massive overbooking, most As a result of this uncertainty, a case set for
9/10 THE LAWSUIT SURVIVAL GUIDE

trial on one day might remain on stand-by decided by a jury. This federal right does
for another day, several days or a week. not apply to state courts, but each state has
Lawyers, parties and witnesses must remain its own right to jury trial that closely
ready to begin trial within a half-days or a resembles the federal standard.
days notice by the court. If no courtroom The distinction between those lawsuits
becomes available within a certain time that historically entitled the parties to a jury
determined by each courtoften a week called cases at lawand those that
the case is rescheduled to another date required only a court trial (by a judge with-
some months down the road. out a jury)called cases in equityis ex-
It is very disheartening for parties and tremely fuzzy. Nonetheless, some categories
lawyers alike to remain keyed up for days of cases usually fall on one side of the line
then not go to trial. However, it is far or the other. Generally, a jury is available
worse for them to assume that the case will for any case in which money compensation
not be heard, call off the witnesses, unwind is sought. For example, a party is entitled
emotionally and start to make other plans to a jury in the trial of a personal injury,
then get a phone call from the court an- property damage or breach of contract
nouncing that trial will start in the morning. case.
Cases which seek only to clarify a partys
rights, to divide property or to order one of
Section II: Judge or Jury? the parties to engage in or refrain from
future conduct are usually considered
Although many people in the United States lawsuits in equity. Historically, these cases
believe that they have an absolute right to a were not tried by a jury and are still typically
trial by jury, this is not necessarily correct, tried by a judge alone. Such cases include
at least in civil cases. This section explains family law matters, lawsuits that seek in-
when a party in a civil lawsuit has a right to junctions, declaratory relief, accounting and
a jury trial and how a party might decide dissolution of a partnership, quieting (set-
whether to request a jury, if one is avail- tling disputed) title to real estate, mortgage
able. foreclosure, rescission (voiding) of a
contract based on fraud and specific
performance (forced completion) of a
10. When do I have a right to a jury? contract.
However, there are exceptions even within
The Seventh Amendment of the United these generally recognized categories. For
States Constitution guarantees a right to jury example, some states allow a jury to decide
trial in federal court civil cases, but only for cases seeking an accounting of business
those types of cases that were historically assets and liabilities but other states do not.
TRIAL 9/ 1 1

The same is true for eviction proceedings. 12. If a jury is available in my case,
And in a few states, even cases in equity should I request one?
are tried to a jury, if requested by any party.
In contrast, some consumer protection or A party might not want a jury trial, even if
unfair business practice cases are tried by a one is available. To make this decision,
judge only, even though they seek monetary party and lawyer must consider the pros
compensation. and cons of a jury trial versus a court
(judge only) trial, including:
Speed in getting to trial. In most courts,
11. Am I entitled to a jury if the a case can get to trial much faster if
Complaint seeks both equitable there will be no jury. A court trial
relief and monetary damages? eliminates the need for jury selection,
jury instructions and certain types of
Many cases include several causes of action exhibits. If the litigation has already
(see Chapter 3, Section I), some in equity taken a long time and a party wants
and others at law. For example, a Plaintiffs to avoid delay, the party might con-
lawsuit might ask the court to rescind (void) sider waiving (giving up) the right to
a contract because of the Defendants fraud a jury.
(a claim in equity), and also ask the court Expense. If a litigant is paying hourly
to order Defendant to pay damages to attorney fees, a jury trial will be more
Plaintiff for breach of that contract, a claim costly. Considerably more hours are
at law. In these mixed cases, either party is required to prepare for a jury trial
entitled to a jury. Both claims would be than for a court trial. A lawyer must
presented during the same trial, but only prepare for jury selection and jury
the claim at law would be submitted to a instructions. And the trial itself takes
jury; the judge would decide the equity much longer; choosing the jury can
claim. take several days, and the entire trial
Sometimes, a Plaintiffs Complaint is solely moves more slowly because lawyers
in equity (a lawsuit seeking division of must tailor their presentations to the
partnership property, for example) but the jury. The difference in expense to the
Defendant asserts a defense, or files a Cross- client is not nearly so great if the
Complaint, alleging a cause of action at law lawyer is being paid a contingency
(such as breach of contract). In that situation fee, but even then the costs for jury
too, a jury would hear the Defendants trial are higher. The party requesting
counterclaim (if a party requested it), while a jury must pay jury fees, which can
the judge alone would decide the Plaintiffs quickly add up to more than a thou-
original claim. sand dollars. (See Question 13.) Also,
9/12 THE LAWSUIT SURVIVAL GUIDE

the cost of expert witnesses, investi- Risk of a hung jury. One of the advan-
gators and other outside trial assistants tages of a court trial is that the parties
is likely to be higher because they know a judge will deliver a final
will have to do more workon jury verdict. With a jury, there is always
selection, jury instructions and visual the possibility of a deadlockknown
trial exhibitsif there will be a jury. as a hung juryinstead of a verdict. If
Emotional appeal. In some cases, a the jury hangs, the parties have to try
jury is likely to sympathize with one the case all over again (see Question
party over another. For example, juries 59). This would entail another long
tend to side with individuals who have delay and significant added expense.
been economically damaged because In those courts that dont require a
of something done without conscience unanimous jury verdict, this risk is
by a large corporation. Similarly, juries reduced.
tend to look for a way to compensate
people who have suffered serious
physical injuries, even if the person 13. How and when does a party
causing the injuries did not act in a formally request a jury?
terribly careless fashion. Conversely,
many lawyers believe that jurors are A party who wants a jury trial may have to
usually unsympathetic to an individual request it more than once. In federal court
who sues a local government entity; and some state systems, the party must
those jurors are also local taxpayers include a jury requestsometimes called a
whose tax funds will pay the verdict. jury demandin the partys initial pleading
Technical detail. Juries tend to be less (Complaint, Answer and/or countersuit). In
sympathetic towards a party who is those courts, a lawyer almost always
suing or defending based on a techni- includes a jury request in the pleadings,
cal legal rule, particularly if the other saving the real decision about a jury for
sides behavior seems reasonable from later in the case. If the lawyer and client
a commonsense perspective. A jury ultimately decide they do not want a jury,
might not look favorably on Defendant they may later drop the jury request with-
breaking a lease, refusing to live up out any penalty. In a few courts, a party
to a contract or failing to pay a share might have to get the judges permission to
of profits or royalties, for example, if drop a jury request shortly before trial, or
Defendant took these actions solely pay a monetary penalty to offset the other
because Plaintiff failed to sign a sides work in preparing to face a jury.
certain paper or file a particular A jury demand must be included in the
document. At-Issue Memorandum or Motion to Set
TRIAL 9/ 1 3

Trial Date. (See Section I.) In federal court, the trial date. In some court systems, a
the jury demand must be repeated at a Trial judge addresses these issues whether or not
Setting Conference. And in a few courts, a the lawyers raise them. The judge requires
lawyer must file a separate Jury Demand both sides to attend a Pretrial Conference,
document. during which a kind of script for the trial is
The party requesting a jury must also post created.
jury fees. Each juror is paid a daily fee. The
amount per juror (usually $10 to $50) varies
from state to state. The party that requests a 14. What is the normal order in which
jury is required to offset part or all of these evidence is presented at trial?
fees, and must deposit a certain set portion
of the jury fees with the court several Usually, the Plaintiff presents evidence
weeks before the scheduled trial date. A about the Defendants liability (legal
party that fails to make this deposit by a responsibility) for damages Plaintiff has
court-established deadline loses the right to suffered, and evidence about the amount of
a jury trial. those damages, during the first phase of
trial (in any order Plaintiff chooses). Then
the Defendant presents his or her evidence
Section III: Pretrial Proceedings regarding both liability and damages. Finally,
and Conferences the Plaintiff may present some closing
evidence, known as rebuttal, to respond to
Once a trial date has been set, the lawyers the Defendants presentation.
turn their attention to how they want the
trial itself to proceed. They might consider:
whether certain subjects or types of 15. Can a party request a change in
evidence will be presented at trial the usual order of evidence at trial?
the order in which evidence will be
presented at trial In some cases, the usual order of present-
whether the trial will be bifurcated ing evidence is changed to increase the
(separated into two parts), to prevent chance of a fair trial. This happens most
evidence about one matter from often when evidence about damages is so
prejudicing the jurys view of other extreme that it might influence a jurys
matters, and decision about liability. For example, if the
how to shorten the trial. Plaintiff in a personal injury case will never
Opposing lawyers might agree on some walk again, the jury might be so sympathetic
of these issues. If not, either lawyer may that it would find a well-heeled Defendant
ask a judge to decide these matters before fully liable even if the Defendant might not
9/14 THE LAWSUIT SURVIVAL GUIDE

be fully responsible. The same problem 16. Can the parties change the order in
might arise if someones business or career which legal issues are presented at
was ruined or personal assets were wiped trial to save time and expense?
out.
In such a case, the Defendants lawyer In some lawsuits, a single legal issue might
might ask a judge to bifurcate (separate) determine the outcome of the entire trial, or
the trial into two distinct parts. In the first at least preclude the need to hear evidence
part, the jury would only hear evidence on some other issues. For example, in a
about liability. The jury would go on to business dispute, the terms of a written
hear evidence about damages only if it first contract might dictate all of the parties
found Defendant legally responsible for rights. However, if the written contract was
Plaintiffs injuries. invalid for some reason, one of several
A party requests this type of division in a other legal theories might apply. If a judge
Motion to Bifurcate Trial or a Motion for or jury first decides that the written contract
Separate Trials. If the judge schedules a was in force during the dispute, the parties
Pretrial Conference, the request may be would not have to introduce evidence and
made then, instead of in a motion. make arguments about any of the other
non-contract legal theories. And that would
save the parties considerable time and
expense.
You May Agree to a Non-
In such a case, a party may ask a judge
Unanimous Verdict
to rule that the key issue be heard and
In many court systems, a jurys vote must determined first at trial, before and hopefully
be unanimous in order to reach a verdict. instead of other issues and evidence. This
But this requirement often results in a hung request is made in a Motion to Determine
jurya jury that cant reach agreement. If Order of Trial. The motion may be made
the jury hangs, the parties must go through any time after the trial date has been set.
the trial all over again. (See Section VIII.) The request may also be made at a Pretrial
To lessen this risk and the related delays Conference, if one is scheduled.
and extra costs, some courts permit the
parties to agree ahead of time to accept a
less-than-unanimous verdict. Most judges 17. Prior to trial, can a party
approve these agreements; they usually request that the judge exclude
like any reasonable proposition that certain evidence?
decreases the likelihood of a hung jury
(and possible need for a retrial). Yes. During the course of discovery, one
party might learn a particularly damaging or
TRIAL 9/ 1 5

party who wants to introduce the evi-


dence that the other side will then be
allowed to introduce related evidence
that the jury would not otherwise be
allowed to hear, or
to wait and see how the trial develops
before deciding what to do about the
evidence.

You May Want to Dismiss Part of


inflammatory piece of information about the Your Case Before Trial
other side. For example, one party might At the beginning of a lawsuit, Plaintiffs
have evidence that the other party had a lawyer may load up the Complaint with all
previous similar dispute with someone else. kinds of Causes of Action (legal theories),
Or a party might know embarrassing (and unsure which ones the evidence will turn
irrelevant) facts about the other partys out to support. (See Chapter 3, Section I.)
personal life. In these situations, the party A Defendant might counter with multiple
against whom the evidence might be used defenses in an Answer, or numerous legal
will want to know as soon as possiblein theories in a countersuit. By the time trial
order to plan a response, if necessary rolls around, however, there might be
whether the jury will be allowed to hear insufficient evidence to support one or
that information at trial. Either party may more of these theories. Presenting these
ask the judge to decide, before trial, whether unsupported legal theories at trial may
this evidence may be presented to the jury look bad to the juryand will certainly
by filing a Motion in Limine (which means waste time and energy.
at the threshold of trial). In these situations, Plaintiffs (or Defen-
When a party makes such a motion, the dants) lawyer might drop these theories
judge may decide: from the lawsuit before trial begins. A
not to permit any of the contested Cause of Action would have to be dismissed
evidence to be introduced at the trial with prejudice at such a late date; it could
to permit all the contested evidence never be litigated again. However, if there
to be introduced, without restrictions is no chance of proving that claim to a
to place limits on the evidence, either jury, Plaintiff (or counterclaimant) has little
by permitting some parts to be admit- to lose by dismissing it.
ted but not others, or by warning the
9/16 THE LAWSUIT SURVIVAL GUIDE

18. What is a Pretrial Conference? issues for them. Before the Conference, a
judge usually requires the lawyers to submit
In the weeks shortly before a scheduled a Trial Brief or Pretrial Conference Brief. In
jury trial date, the judge may call the lawyers this brief, each party must:
in for a Pretrial Conference. (If there will spell out those facts that are uncon-
be no jury, however, the judge usually tested
skips the Pretrial Conference and handles outline the contested facts each side
matters informally on the first day of trial.) intends to prove at trial
The purpose of the Pretrial Conference is indicate what documents or exhibits
for the judge to find out what the lawyers each side wants to introduce into
expect to present at trial and to hammer evidence, and
out problems and procedural details ahead list the witnesses each side intends to
of time, rather than bogging down the trial have testify.
itself. At the Conference, the judge determines
Pretrial Conferences are more common, which facts both sides admit, so that evidence
and more extensive, in direct calendar about those facts need not be presented at
courts (including federal courts), in which a trial. The judge also determines what
single judge is assigned to handle every documentary or physical evidence may be
aspect of a case, including trial. In master introduced at the trial through stipulation
calendar courts, in which different judges (agreement between the parties) rather
hear different aspects of the case and the than requiring witness testimony. (See
trial judge is not determined until the day Question 39.) The judge might also make a
of trial, Pretrial Conferences are usually formal ruling on the admissibility of certain
held only in complex cases. Either party evidence, eliminating the need for a sepa-
might also request a Conference to sort out rate Motion in Limine. (See Question 17.)
particular procedural or evidentiary problems The judge might determine the order in
in advance. which evidence will be presented at trial.
And the judge might decide what legal
theories mayand may notbe argued to
19. What does a judge decide during the jury.
a Pretrial Conference?

At a Pretrial Conference, a judge tries to 20. What is a Pretrial Order?


streamline the trial by getting the parties to
agree on the evidence and legal theories The decisions made at the Pretrial Confer-
that will be presented to the jury. If the ence are formalized in a document called a
parties cant agree, the judge decides these Pretrial Order, a kind of blueprint that both
TRIAL 9/ 1 7

sides must follow once the trial is under- questions and, if paying by the hour, why
way. The judge usually asks one side to the lawyers bill for that period is so large.
prepare a draft of the Pretrial Order, which Because a partys own testimony is often
the other side can review, change or com- crucial to the outcome, the client, too,
ment on before it goes back to the judge to should thoroughly prepare.
be finalized.

Pretrial Conference Preparation Is 21. What legal papers does my lawyer


Expensive. If you pay your lawyer by prepare for trial?
the hour and an extensive Pretrial Conference
is held in your case, you might be shocked to On movies and television, fictional trials
see the size of your bill for attorney fees even take place entirely in the open courtroom
before you get to trial. For the Conference, lawyers question witnesses, argue with the
your lawyer has to organize almost all the other lawyers and the judge and make
evidence and legal arguments in the case and opening and closing pleas to the jury. But
present them in a brief to the judge. Because in real life, much of the business of trial
the judges rulings at a Pretrial Conference takes place on paper. Among the formal
often affect the outcome of the case, the papers a lawyer must prepare for trial are:
lawyer must do a very thorough, and therefore Trial brief. If there has not been a Pre-
expensive, job. Your consolation is that the trial Conference before the trial judge,
lawyer would have had to do most of this the lawyers must prepare a trial brief.
work anyway to prepare for trial; the fees just This document describes each partys
get to you sooner. view of the facts and legal issues in
the case. The trial judge uses these
briefs to make informed decisions
Section IV: Preparing for Trial about jury questioning, evidence
disputes and the propriety of the
A lawyers performance in front of a jury is lawyers opening statements to the
only as good as the lawyers preparation. jury. If there will be no jury, the brief
No amount of fast-talking in the middle of prepares the judge to handle the trial
a legal tussle can substitute for having efficiently.
evidence, legal papers and arguments Questions for prospective jurors. During
organized and readily available. A client must jury selection, the judge questions
understand how much work a lawyer needs potential jurors and the lawyers pose
to put in during the weeks immediately additional questions in a process
before a trial, why the lawyer may not known as jury voir dire (having
always be available to answer all the clients potential jurors say the truth). Many
9/18 THE LAWSUIT SURVIVAL GUIDE

judges require the lawyers to submit


Getting Ready But Not Too Fast
ahead of time a list of voir dire
questions they want the judge to ask. One of the most difficult things for a lawyer
And some judges also want the and client to manage in the weeks leading
lawyers to submit in advance the up to trial is the timing of preparations.
questions the lawyers want to ask Because of overcrowded court calendars,
potential jurors. Preparing these ques- trials may be postponed to weeks or
tions requires a great deal of time and months after their scheduled date. Know-
carethey are intended not only to ing this, a lawyer does not want to fully
bring out information about the prepare if much of that work would only
potential jurors but also to educate or have to be repeated months later. On the
prepare the jurors about issues or other hand, lawyers and clients cant always
facts that will come up during trial. be certain until the trial day arrives whether
(See Section VI.) the court will actually postpone the case.
Motion in Limine. Unless a lawyer has And they cant afford to be caught unpre-
already done so, the lawyer might pared should the case happen to be sent to
need to prepare a Motion in Limine trial on schedule.
asking the judge to rule at the begin- If the trial has not yet been postponed by
ning of trial that certain evidence will a week or so before the scheduled date,
or will not be presented to the jury. both lawyer and client must assume that
(See Question 17.) the trial will go ahead on that date, and
Jury instructions. Jury instructions are prepare accordingly. Nonetheless, there is
the rules of law a judge reads to the still a good chance that the case will be
jury after all the evidence has been postponed on the morning of trial. This
presented, explaining how the jury kind of uncertainty is one of the many
should apply those laws to the facts unpleasant, uncontrollable aspects of a
the jury decides are true. (See Question lawsuit.
55.) Although it may seem extremely
premature for the lawyers to submit
proposed jury instructions before any
evidence has been heard, some courts 22. What preparations does my lawyer
require it. In these courts, the judge make immediately before trial?
usually permits some changes or
additions to these proposed instructions The weeks just before trial are often frantic
once all the evidence has been for a lawyer. The lawyer and lawyers
presented at trial. assistants must organize a tremendous
TRIAL 9/ 1 9

number of people and documents. And the As Trial Nears, the Cost for Experts
lawyer must do extensive studying, thinking Shoots Up. At some earlier point in the
and rehearsing. In addition to preparing the litigation, your lawyer may have consulted an
formal trial papers, a lawyer must attend to expertfor example, an engineer regarding a
the following: construction dispute, an accident reconstruction
Witness testimony. The lawyer reviews expert about a car crash, a doctor regarding
the clients deposition testimony (see the extent of a partys injuries or a real estate
Chapter 4, Section V) as well as any appraiser about a property value. The expert
documents with which the client probably had a conversation with your lawyer,
should be familiar. Then the lawyer received some documents and provided your
meets with the client to prepare his or lawyer with a preliminary opinion about an
her testimony. The lawyer must care- aspect of the case. For that preliminary work,
fully review the deposition testimony the expert probably charged for several hours
of other witnesses as well, plus the work, an expense passed on to you for pay-
interrogatory responses and admissions ment as a litigation cost.
of the opposing party, in order to have As trial nears, however, an experts workload
key portions at the lawyers fingertips rises tremendously. So do the experts fees. If
during trial. This prior testimony is you are paying your lawyer by the hour,
used to impeach (contradict) a witness attorney fees for preparing the expert will also
who says something different at trial sharply rise.
than what that witness said during To prepare for the experts testimony, your
deposition. (See Question 48.) Most lawyer will probably give the expert more
lawyers also prepare some of the actual documents to review. Then the lawyer and
questions they will ask the witnesses, expert will meet in person to go over the
even though many questions will be experts proposed testimony. In many cases,
added or altered at trial, depending the experts deposition will not be taken until
on the witnesss answers to other close to the trial date. So in the weeks imme-
questions. diately before trial, the expert will have to
Experts. A lawyer must prepare any prepare for and testify at the deposition, then
expert witness who will testify at trial. prepare again to testify at trial. You will have
In particular, lawyer and expert must to pay for all of these preparations.
discuss how the expert can present
information a jury will understand and Visual aid exhibits. Most trial lawyers
believe. They must also discuss how agree that jurors are greatly affected
to repair mistakes the expert might by visual displays. Lawyers find it
have made at his or her deposition. easier to explain something to a jury
9/20 THE LAWSUIT SURVIVAL GUIDE

(and for the jury to understand) if the Opening and closing statements to the
lawyer can refer to a picture of some jury. Plaintiffs side of the case is
sorta diagram, blow-up photograph, presented first at trial, so Plaintiffs
mock skeleton, list of key facts, over- lawyer must prepare to give an open-
size print of an opposing partys ing statement to the jury within a day
damaging statements or any other or two after the trial date. (See Ques-
kind of visual aid. These exhibits are tion 36.) Defendants lawyer may also
often prepared with technical assis- give an opening statement at the be-
tance from a professional trial support ginning of trial, though many defense
service. lawyers prefer to give their statements
right before they begin presenting
their own witnesses in the second
half of trial.
Some lawyers also prepare a closing
argument ahead of time, as they already
know what most of the evidence is going
to show. Of course, they will have to
change the argument somewhat as the trial
progresses. But by planning their argument
in advance, they can make sure to bring
out witness testimony along the way that
specifically supports the closing points they
want to make for the jury.

How You Can Help Your Lawyer


Prepare for Trial

Depending on the complexity of the case,


your knowledge of technical matters about the
dispute, and your lawyers style in trying a
case, you might provide valuable advice to
your lawyer during the testimony of certain
witnesses. If the lawyer wants you to take that
role, you can prepare for trial by reviewing
key documents, records and witness deposi-
tion testimony on these subjects.
TRIAL 9/ 2 1

More commonly, your only active trial par- 23. How much direction can I
ticipation will be giving your own testimony expect my lawyer to give me
from the witness stand. To prepare for trial about my trial testimony?
testimony, you should review the transcript of
your deposition, as well as key points raised A lawyer must perform a delicate balancing
in other depositions about which any of the act when preparing a client for his or her
lawyers may question you. You should also trial testimony. On one hand, as a matter of
review your answers to interrogatories, legal ethics the lawyer is not supposed to
responses to requests for admissions and any tell the client what to say, even if it is the
documents that might come up during your truth. Actual testimony is supposed to come
testimony. from the litigant, not the lawyer. On the
The final step in your preparation is to meet other hand, a lawyer knows that the same
with your lawyer to practiceor at least dis- question might be truthfully answered in
cussyour testimony at trial. You will already many different ways. The difference between
have a good sense of what testifying is like one true answer and another can sometimes
from the experience of being deposed by the affect the outcome of a case.
other sides lawyer. You and your lawyer Consider, for example, a case in which
together can go over the strengths and weak- the client fell down stairs that had no hand-
nesses of your performance at that deposition rail. If there is a handrail, I always use it
and discuss questions the opposing lawyer going down stairs, sounds much better
might ask at trial that were not asked at the than, I didnt notice there was no handrail
deposition. before I started down those stairs, even if
Unless there has been a non-binding arbi- both are accurate. A key issue in the case
tration (see Chapter 7), the trial will be your might be whether the client was likely to
first opportunity to testify under the friendly have used a handrail had there been one.
questioning of your own lawyer. You and your Because such small differences can be
lawyer might practice that testimony, too, to important, a lawyer usually attempts to
get a feel for how that works. have the client understand what a very
Of course, your lawyer will emphasize good answer would include, without telling
specific factual points for you to make. But the client exactly what to say.
another important goal of your testimony is to Different lawyers approach this preparation
give the jury a positive overall impression of differently. Some play it fast-and-loose,
yourself and your conduct during the dispute. providing the client with a word-for-word
You and your lawyer should discuss the answer but then adding, but you answer
specific words you will use, the tone of your however you think best. Other lawyers are
voice and even your facial expressions, in more careful, explaining to the client what
addition to the content of your testimony. is important on a particular issue and what
9/22 THE LAWSUIT SURVIVAL GUIDE

the lawyer is trying to achieve with a specific


question, but never giving the client the exact
words to say. When lawyer and client are
preparing the clients trial testimony, the
client should pay close attention to what
the lawyer says about the key issues in the
case and keep this in mind when preparing
answers to specific questions. The client
should also feel free to ask the lawyer about
different ways the client might answer a
question. As long as the different answers
are both true and both come from the clients
mouth, there is nothing wrong with the
lawyer helping the client understand which
answer would help the clients case the most.

Sections V-VIII: Trial Section V: Getting a Judge


By the time a lawsuit finally gets to trial, the
lawyers and parties might feel that they know 24. When my case is called for trial,
everything possible about the dispute, the how is a trial judge selected?
participants and the legal rules in the case.
But they dont. Trials are always unpredict- In direct calendar courts, the same judge
able, and the outcome is usually a shock to who has handled all aspects of the case
at least one party. However, the basic from the beginning presides over the trial.
structure of a trial is well established. This In master calendar courts, however, the
section describes that structure and the roles parties dont know who the trial judge will
played in it by lawyers, parties, witnesses, be until the case is actually assigned to a
judge and jury. courtroom on the day of trial. The presiding
In most respects, a trial proceeds in the judge in a master calendar court randomly
same way whether or not there is a jury, assigns the case to a judge from a list of
though a court trial (judge only) is a bit those available that day. However, if the
less formal and usually much shorter. Where presiding judge is aware of a potential
significant differences exist between the two conflict in a particular judges calendar, that
types of trials, this section points them out. judge might be skipped.
TRIAL 9/ 2 3

25. Do I have any choice about the Before doing so, however, the lawyer must
judge named to preside over determine what other judges are available
the trial? to preside over the trial. A party has only
one peremptory challenge; the lawyer does
The parties have no say in the initial selection not want to use it to bounce little Napoleon
of a judge to preside over their trial. How- only to find the case assigned to Attila the
ever, in some courts, any party may veto Hun.
the judge by exercising what is called a In a challenge for cause, a party must
peremptory challenge (a challenge requiring demonstrate the cause for removing a
no explanation). Each side gets only one judgethe judges conflict of interest or
such peremptory challenge, which must be actual bias in favor of or against one of the
exercised immediately after the judge is parties or lawyers. Such bias or conflict of
named. In all courts, a party may object to interest is usually very difficult to prove,
a judge based on the judges bias or con- and so is not often alleged. An unsuccessful
flict of interest. Such an objection is called challenge leaves a party facing a judge
a challenge for cause. whose impartiality, and perhaps integrity,
Peremptory challenges are used when a the partys lawyer has just attacked.
lawyer believes the judge will not be fair or A lawyer might successfully challenge a
reasonable towards the client, but cannot judge for cause if:
prove any specific bias. Perhaps the lawyer the judge did legal work for the
and judge have clashed previously. Or, the opposing party before being elected
judge may have a difficult and cantankerous or appointed to the bench
personality with which the lawyer does not the judge worked in the same law
want to wrangle during trial. Sometimes a office as opposing counsel in the case
lawyer exercises a peremptory challenge someone in the judges family works
because of the judges background or views. for, or has a financial connection to,
Some judges are known to favor corporate one of the parties, or
or insurance defendants over individuals. the judge has a personal relationship
Others may have a reputation of being with one of the parties.
subtly unfriendly to lawyers and litigants of However, a judge cannot be challenged
color, or to women lawyers. And other for cause just because, as a lawyer, the
judges may be known in the legal commu- judge frequently represented clients on only
nity to have little sympathy for certain types one side of similar casesfor example,
of claims. always represented mortgage companies in
In any of these situations, a lawyer may foreclosure cases. Nor may a judge be
exercise a peremptory challenge based on disqualified because of a casual social
gut feelings rather than hard evidence. relationship with one of the lawyers.
9/24 THE LAWSUIT SURVIVAL GUIDE

Unlike a peremptory challenge, a challenge conference is likely to be brief. The judge


for cause does not necessarily have to be and lawyers will go over the Pretrial Order
made as soon as the case is assigned to the and discuss matters of timing and details of
particular judge. Instead, the party must jury selection not covered in the order. If
make the challenge as soon as that party the lawyers and judge did not discuss jury
learns that cause for disqualification exists. instructions at the Pretrial Conference, they
If a party makes a challenge for cause, will do so now. If there will be no jury, this
the case is put on hold for several days or informal conference will be much simpler.
weeks while another judge rules on the The judge might also handle much of the
challenge. Unless the challenged judge preliminary business in the courtroom
immediately decides to withdraw from the rather than in chambers.
case (recuse herself) instead of resisting the Master calendar courts. In a master calen-
challenge, a challenge for cause almost dar court, the initial informal conference on
certainly will require the trial to be resched- the morning of trial is the first time the
uled, which can delay the case for several judge sees or hears anything about the
weeks or months. case. The judge uses that conference to
become familiar with the case, listening to
each sides lawyer describe the issues and
26. What happens when the parties the evidence each intends to introduce at
and lawyers first arrive at the trial trial. If the lawyers have prepared trial
judges courtroom? briefs, the judge might read them immedi-
ately before or after this initial conference.
Before any formal trial proceedings take (See Question 21.) Similarly, if there has
place, the lawyers usually meet with the been a Pretrial Conference and order, the
trial judge in chambers (the judges office judge will discuss the orders terms with the
next to the courtroom). The scope of this lawyers. (See Section III.)
initial meeting depends on whether trial is In this first meeting in a master calendar
in a direct calendar court or a master court, the judge goes over how trials are to
calendar court. be conducted in his or her courtroom,
Direct calendar courts. In a direct calendar including how the lawyers will present
court, the judge is already very familiar questions for prospective jurors and when
with the case and with the lawyers. Much they must submit proposed jury instructions.
of the trials organizational business has The judge may even begin to discuss spe-
already been taken care of in the Pretrial cific jury instructions. If so, this conference
Conference and memorialized in a Pretrial could take quite a bit of time. If there will
Order. (See Section III.) Because the trial is be no jury, however, the initial conference
already fairly well planned, this initial trial is a much briefer affair.
TRIAL 9/ 2 5

Hurry Up and Wait Dont Rule Out a Last Minute


Settlement Offer
When the hour finally arrives for you and
By the time you walk into the courtroom
your lawyer to trudge down the courthouse
to begin your trial, you might no longer be
hallway and into the courtroom where your
thinking about settling the case. But many
trial is to take place, the lawyers almost
lawsuits are settled inside the courtroom at
immediately disappear behind closed doors
the very cliff-edge of trial. At this point,
to huddle with the judge. This informal
lawyers and clients have reached high
conference might last for hours. Meanwhile,
levels of anxiety. Either party might be
you will sit in the courtroom or hallway
eager to jump at even a slightly better
with nothing to do and no idea what is
settlement offer from the other side.
happening. Unfortunately, more of these
Right before trial, you and your lawyer
private chamber conferences will probably
should discuss the possibility of a last-
occur throughout the trial.
minute settlement offer from the other
When you first reach the trial courtroom,
side. What would it take for you to settle
potential jurors are usually not yet present.
the case at this point? Similarly, you and
Judges dont like to make jurors wait around
your lawyer might want to consider pro-
in the courtroom until the trial is actually
posing slightly improved settlement terms
ready to begin. But the other parties most
to see if the other side will bite at the last
likely will be there. One of the things you
moment, allowing all of you to avoid the
must prepare for is facing the opposing
expense and risk of trial.
parties during the many stretches of time
These last-minute settlements are some-
when you must be in the same courtroom
times brokered during the first informal
or court hallway, waiting for the lawyers,
meeting among the lawyers and the trial
judge or jury. One thing you shouldnt do
judge. Many judges will ask the lawyers if
is start a conversation. Its not a good idea
they would like the judge to make a last-
for opposing clients to talk to each other
ditch settlement try. If both sides agree, the
without their lawyers present.
judge might hold an abbreviated version of
a settlement conference. (See Chapter 8,
Section II.) With the beginning of trial only
minutes away, a judges coaxing might be
all it takes to bridge the gap in settlement
positions.
9/26 THE LAWSUIT SURVIVAL GUIDE

Section VI: Jury Selection minorities and the poor, who register to
vote in lower percentages, but the higher
courts have upheld the method. (To address
27. In a jury trial, how are the initial this under-representation, some courts
candidates for the jury selected? supplement voter lists with lists of drivers
license holders.) From the list of potential
Theoretically, every legal resident of the jurors, a certain number are randomly
United States who is age 18 or over and chosen each week and notified to appear
mentally competent may serve as a juror. in court.
Most states and the federal system add The potential jurors who appear in court
some further restrictions, however. Jurors on any given day are known as the jury
must be citizens, and be able to read and pool or jury array. From this pool, a smaller
write English (regardless of how well they groupcalled a jury venire (meaning
speak and understand it). In some places summoned)is randomly chosen and
these latter requirements tend to create sent to a courtroom in which a jury trial is
juries that do not accurately reflect the scheduled to begin. The size of this smaller
communities from which they are drawn, group varies depending on the size of a
but such restrictions have been routinely jury in that particular court and the estimated
upheld by state and federal high courts. length of the trial. The longer the trial, the
Each court compiles a list of potential more potential jurors will be excused for
jurors from voter registration lists for the personal or business hardship reasons,
county or other judicial district in which the thus requiring a bigger initial group from
court is located. This list under-represents which to choose.
TRIAL 9/ 2 7

Where Do I Look? How Do I Look? 28. How are prospective jurors sent to
the courtroom?
Once trial begins, you will be face to face
for long periods of time with the people Once the trial judge and lawyers have
who will determine the fate of your lawsuit concluded their informal conference, the
judge, jury, witnesses, opposing lawyer trial judge calls the presiding judge (or jury
and opposing party. As the trial moves commissioners office) and asks that a
along, you will no doubt have strong re- group of prospective jurors be sent to the
actions to what these various participants courtroom. Typically, 25 to 50 prospective
say. And if you are like most humans, what jurors arrive in the courtroom. They are
you are thinking will show up on your face. given an introductory speech by the judge
As all the trial activity is swirling around generally describing the case and how long
you, try to keep in mind how you appear the trial is expected to last. Then the judge
to the jury while you sit at the counsel might ask if any of the prospective jurors
table. Jurors wont expect you to be cool, needs to be excused from the case because
calm and collected all the time. But neither serving on the jury would cause personal
will they like it if you yawn or look disgusted hardship. The judge talks to those prospec-
every time the opposing lawyer speaks, tive jurors who ask to be excused, usually
sneer whenever the judge makes a ruling permitting some to leave but refusing others
against your lawyer or roll your eyes at requests. (Some judges wait until prospec-
everything a witness says. Be attentive and tive jurors are actually called into the jury
concerned, but dont act out every reaction box before discussing hardship requests.)
in a constant exaggerated pantomime. After the judge has finished these remarks,
Should you look at the jurors themselves? a panel of prospective jurors is chosen at
Avoiding all eye contact with them through- random to enter the jury box for more
out the trial is nearly impossible. You may detailed questioning about their background.
certainly look their way on occasion, and The number of jurors initially called into
smile or nod to the group of them as they the jury box is the same as the number of
file into the jury box at the beginning of jurors who will wind up hearing the case.
court sessions. But try not to stare at any of Different courts use different size juries
them. Dont expect them to react visibly. from 6 to 12 jurorsin civil cases.
And if any particular juror seems uncom-
fortable under your gaze, make a special
effort not to look directly at him or her.
9/28 THE LAWSUIT SURVIVAL GUIDE

Where in the Courtroom Do I Belong?

Courtrooms are full of barriers, benches, though some preliminary business and
tables, chairs and rows of seats. When you side-bench conferences may be off the
first enter, you might see some people sitting record (not reported) if the judge says so.
in the audience and others scurrying around clerks and bailiffs. A court clerk (and
in front. Or, the room might be empty. sometimes a bailiff) usually sits at a table
Unfortunately, there are no signs indicating immediately in front of or to the side of
where the players in the courtroom drama the judges bench. The clerks handle
are expected to sit and where some are not courtroom paperwork between the
allowed to go. Although not all courtrooms lawyers and the judge.
are exactly alike, they are all similar enough jury box. On the same side as the witness
that the picture on the facing page should box, along one wall of the courtroom, is a
give you a good place to start. separate section where the jury sits.
counsel tables. Between the judges bench
judges bench. Where the judge sits. Only in the front of the courtroom and the
the lawyers (after first asking permission) audience area in the rear are two counsel
and court clerks are permitted to approach (lawyers) tables. The parties also sit here,
the bench. Some informal conferences one side at each table. Traditionally, the
between judge and lawyers are held at the Plaintiffs side sits nearest the jury box, but
side of the bench, out of earshot of the jury. this is not true in every court. If there are
door to chambers. Behind this door is the multiple parties, there may be additional
judges chambers, or private office. During tables and chairs. Sometimes the parties sit
trial, the lawyers might be asked in for behind their lawyers rather than next to
conferences. You and the other party, them at the counsel table.
however, wont get behind this door barrier. Behind the counsel tables is a bar-
except to agree to a settlement. rierthe famous bar (lawyers take the
witness box. Immediately next to the judges bar exam in order to be admitted to the
bench is the place where witnesses sit bar)that separates the legal community
while testifying under oath. When you of lawyers, parties, clerks and judge from
testify, you will also sit here. the general public. In some courts, para-
court reporter. Immediately in front of the legals, investigators and other non-lawyer
judges bench, usually right next to the assistants must remain behind the bar.
witness box, the official court reporter public audience. Trials are almost always
records on a stenography machine any- open to the public. Behind the bar is an
thing said by anyone in the courtroom. area for the audience, including friends
Almost all proceedings are on the record and relatives. During jury selection, the
(the court reporter takes everything down), prospective jurors sit in the audience.
TRIAL 9/ 2 9

Spectator rotatcepS

Sample Courtroom
9/30 THE LAWSUIT SURVIVAL GUIDE

29. How does the jury selection giving one of the little speeches of encour-
process begin? agement. However, the lawyer for one side
or the other is likely to pick up the line of
The judge starts jury selection by personally inquiry if the lawyers are given a turn to
questioning the prospective jurors. This question the prospective jurors. (See
questioning begins what is known as jury Question 30.) If, on the other hand, the
voir dire (lawyers and judges mangle this prospective juror insists that his or her
term in a number of ways, but the most experience would make it impossible to
common pronunciation is vwaar deer). The fairly decide the case, the judge may excuse
judge usually begins by posing questions to the person from serving. (If the judge does
the panel as a whole. These questions not do so at this stage, the lawyers will
usually cover the jurors: have the opportunity to remove this
personal knowledge about the case prospective juror later in the jury selection
personal acquaintance with any of the processsee Questions 32-33.) When a
parties, lawyers or witnesses (a list of prospective juror is excused from the jury
which the judge reads aloud), and box, another is randomly called to fill that
personal experience with similar place and is asked the same introductory
disputes or lawsuits and with lawsuits questions.
of any kind. The judge might also ask more specific
Depending on a particular prospective questions of individual prospective jurors,
jurors answer, the judge may follow up attempting to draw out information about
with more questions about that jurors their personal and work lives. And the
experience. These questions are intended judge might ask questions that pertain to
to determine whether the juror can be the lawsuit itself, trying to find out whether
impartial in the present case. A judge often a prospective juror has strong opinions
combines these questions with little about the particular type of dispute involved.
speeches about how jurors must put aside (These are usually questions previously
any personal feelings and decide the case submitted to the judge by the lawyers.)
based only on the evidence that will be Other judges leave most of this type of
presented at trial. individual juror questioning to the lawyers.
Judges generally do not like to remove If any of this questioning demonstrates that
(in legal lingo, excuse) jurors. If the first a juror would have bias towards one side
few questions do not clearly demonstrate a or the other, the judge may excuse that
prospective jurors inability to be impartial, juror, whose place will be taken by another
the judge usually drops the inquiry after person randomly chosen from the panel.
TRIAL 9/ 3 1

30. Will my lawyer get to question judge excuses a prospective juror from the
prospective jurors directly? jury box during this questioning, a new
prospective juror is immediately called in to
At some point, the judge may turn juror take that seat.
questioning over to the lawyers. A few
judges do all the questioning themselves,
believing they do a more efficient job than 31. What do the lawyers hope to gain
the lawyers and/or that direct questioning from the voir dire?
by lawyers may make the jurors feel un-
comfortable. Other judges do most of the Lawyers want to accomplish several things
questioning themselves but eventually during voir dire questioning of prospective
allow the lawyers to ask a few questions of jurors. First, they try to find out whether
their own. Still other judges do only a there is anything in a jurors background or
minimal amount of questioning, then quickly attitudes that would make the juror likely to
turn the job over to the lawyers, permitting favor the other side in the lawsuit. For
them wide latitude in what they may ask. example, the Plaintiffs lawyer might want
Individual prospective jurors are usually to know if a prospective juror has ever
questioned one juror at a time. The judge been a Defendant in a previous lawsuitthe
and each lawyer ask questions of the same experience of being sued may make the
juror before moving on to the next. If the juror more likely to favor the party being
9/32 THE LAWSUIT SURVIVAL GUIDE

sued in the present case. Or the different prospective jurors about their attitudes
lawyers representing an architect, a contractor toward foul languageand even use the
and a subcontractor in a dispute over a particular nasty words several times. This
building project all might want to know if a way, the lawyer can not only determine
prospective juror has ever personally had whether any of them might be bothered
any trouble with a construction project (and but also get all the jurors so used to hear-
if so, who the juror thinks was to blame). ing the words that they will not be shocked
Lawyers will also want to know if a pro- to hear them during testimony. Lawyers
spective juror: might also question jurors about a partys
thinks people tend to ask for more use of alcohol or drugs, divorce, non-marital
money than they deserve in lawsuits cohabitation or any other subject that will
has strong feelings about corporations come up in the trial and that might offend
(if one is involved in the case), or someone.
has strong feelings about people who Finally, lawyers try, through voir dire, to
seek monetary compensation by filing get prospective jurors to like them. Lawyers
a lawsuit (if the case involves such a want jurors to trust them, to believe what
claim) rather than finding some other they say during trial and to want to decide
way to settle the matter. in their favoreven if the jurors are not
Lawyers also want to know whether there wild about the lawyers clients. Sometimes,
is anything in a prospective jurors back- a client might think that a lawyer has failed
ground or attitudes that might affect how to ask obvious follow-up questions of a
the juror would view a party or important prospective juror, has not probed deeply
witness in the case. For example, if a police enough into a jurors feelings or background
officer will be a key witness in an accident or has not responded strongly enough to a
case, does the juror have any personal hostile remark fr