1. Some Dispute or Loss

All lawsuits start with some dispute. It can arise out of an accident (tort) or because of a contractual dispute. Some claims are hybrids, and whether they are a tort or contract claim could make a big difference in the timetable for the lawsuit. Statutes of limitations are typically longer for breach of contract cases than for tort cases. For some claims it is difficult to determine if they really fall within the traditional notion of a tort or a contract claim. For example, a suit against a producer could be considered to be either. If the claim against the agent or broker is that a client paid for a particular policy which the broker did not procure, that would seem to be more closely akin to a contract action. However, if the agent/ broker failed to suggest the policy be purchased, that would be negligence. The distinction could impact on available coverage to the defendant. Although on its face it might not seem to matter what the actual cause of action is, there could be issues created by the nature of the pleading.

2. Plaintiff’s Complaint

Certain states are referred to as “notice pleading”, meaning the complaint simply has to be specific enough for the defendant to understand the claim asserted against him or her. In such states, complaints can be very vague and non-specific. For example, a pleading that indicates “On (date) the defendant operated his vehicle negligently and caused me to be injured” would be sufficient. However, other states require far more detail. Some states prohibit suit for a particular amount, while others require an amount to be included within the complaint. In those states that do not permit suing for specific dollars (except in a book account of liquidated damage situation), your attorney can request a statement of damages. This most often does not limit or otherwise bind plaintiffs to a maximum recovery equal to the amount either in the complaint or in response to a demand for a statement of damages. However, plaintiffs frequently put a highly inflated figure on their cases. If the demand is more than the available coverage, notice to the insured defendant may well result in a letter from the carrier that the suit seeks damages in excess of available coverage. The suggestion will then be made to the insured to consider retaining personal counsel to monitor the case and to protect the insured’s personal interests. Defendants will often “panic” at these excess letters, and while they do give an idea of the seriousness of the case, they should not automatically create additional anxiety.

3. Service of the Complaint

Where to File? The complaint first has to be filed with either a state or a federal court. The choice of where a case is brought is, to some extent, up to the plaintiff. Federal courts only have jurisdiction to hear civil cases under certain and limited criteria, usually when there is a diversity of citizenship of the parties (i.e., they are in different states) and the amount in controversy is over $75,000. Jurisdictional rules between state and federal courts can be complex, and your attorney will have to evaluate where to file a suit or whether to challenge the forum selected by the plaintiff. There are advantages and disadvantages to state versus federal courts. Some of these are perceived and are not objectively valid, but others are very real. Even though federal litigation can be more complicated and costly, access to a magistrate to steer cases through the discovery process and to focus the court’s attention on addressing discovery disputes can be valid reasons to seek a federal court for the dispute. This is true especially if there is a significant amount of money involved. On the other hand, routine cases can be far more expensive to litigate in federal courts than in state courts. For example, when discovery is scheduled, it is more likely to be tailored to the particular claim rather than to pigeonholing it into a timetable that may not fit. Proper Service When a lawsuit is filed, a defendant generally is not required to take any action unless properly served with a citation. Many states have rules that mandate service within a fixed time period, which may be relatively short. But the rule is ignored in many states as long as the summons and complaint is served in a reasonably prompt timeframe. Although, technically, one could elect to ignore a complaint served in this manner, from a practical standpoint, proper service is not difficult to achieve. Therefore, unless there is an overriding benefit to challenging this method, it is not worth the attempt.

4. Preparation and Filing of Answer

Time Limits Each state has its own requirement for when an answer must be made. In addition, the practice in the state could impact the answer timeframe. For instance, while New Jersey requires an answer within 35 days, the rules permit a 30-day extension (by consent of the plaintiff). By tradition, it is rare that this extension is not granted and, then, only for reasons unique to the case. Risk of Default If no answer is filed within the time permitted (or as extended), the plaintiff can enter a default. The process for entering default varies from state to state, but often involves a two-step approach. The first is to enter default and the second is to enter judgment by default. The purpose of these steps is to safeguard against defaults and to support the notion that cases should be won or lost on their merits. Even if a default is entered, there are procedures in place to vacate it. While they require showing of either a valid defense to the claim or just cause for the failure to answer, these are safety valves designed to effectuate the courts’ objective -- fair adjudication of a legitimate dispute.

5. Initial Discovery

Evidence for trial is gathered through a court-approved process called discovery. Discovery includes formal procedures for gathering information and for investigating the claim. Each information-gathering technique has different rules that have to be followed. Interrogatories Interrogatories are a series of written questions. Although they can be extremely detailed and exhaustive (federal courts and some states limit the number of these), they are a helpful tool to develop basic information, such as names and addresses of witnesses, basic data about the claim, the identities of any experts, and expert reports. They are rarely effective in determining usable facts when the case is at all complex. Document Demands Document demands can be a very effective discovery tool. Virtually any relevant document in the possession of a party, or that is reasonably likely to lead to relevant information, can be demanded. In cases with a large volume of documents, the response could simply indicate that the documents will be made available for review. Some states permit the documents either to be produced in the form and manner in which they were kept in the ordinary course of business, or by a copy of, or the identification of, the documents that are responsive to the request. This choice is designed to prevent a party from being overwhelmed by the obligation to organize documents in the way in which another party seeks them. However, disputes about the manner and method of providing the documents continue with little guidance from the courts. Obviously, the costs associated with document productions can be extensive. E-Discovery In today’s technology age, every litigator knows e-mail is discoverable. It’s also known that e-mail can be dangerous since people tend to be less formal when writing e-mails. Litigators are increasingly aware that instant messages are often archived and are likely to be discoverable, especially where they are used in the ordinary course of business. There also is an interesting question as to whether document retention policies should mandate that instant messages be archived and retained. The latest concern in Internet communications is Twitter posts, or “tweets”. Tweets are posts of no more than 140 characters that users share with -- except in some limited situations -- anyone who wishes to see them. The question for litigants and potential litigants is what to do about tweets. The answer to this question is very fact-specific, but, as a starting point, be aware that tweets may be discoverable. Corporations should make their employees, particularly those who tweet at the direction of the company, aware that their tweets may become part of future litigations.

6. Central Discovery

Depositions During the discovery period, depositions probably will be taken. A deposition involves a party or witness being questioned under oath, with a court reporter present and taking down the testimony in shorthand. The deposition can be utilized at trial and has the same effect as testifying before the judge or jury. Perhaps the most effective form of discovery is the deposition. It is often said that a case can’t be won in depositions, but that it can be lost. This probably is true because witnesses and clients who try to convince adversaries their position is correct are dangerous. As uncomfortable as it may be, providing short and direct answers is the best way to deal with depositions. It is essential to meet with an attorney in order to be properly prepared. If the attorney meets with the deponent an hour or so before the deposition, the attorney is not being very effective (unless the case is extremely simple). The attorney needs to decide if he or she wants to provide an education on the case facts of which the deposed person might be unaware. Sometimes the best approach is to prepare the witness very narrowly, focusing only on those facts directly within the deponent’s knowledge. At other times, it can be important for the witness to understand far more of the entire case. It’s a strategic decision, but not one that should be decided simply because the attorney does not have the time to meet with the deponent. As a result, if an attorney is only planning a short preparation, the attorney ought to be asked why he/ she is not going over all of the testimony. Under any circumstances, even if the attorney opts not to prepare witnesses by sharing details, they have to insist upon an overview of the case, plus the pitfalls to be anticipated, and how to deal with them. Witness Guidelines Often an attorney will try to force someone “off his/ her game” by controlling the pace of the deposition. There is no correct pace for responding to an answer except the one with which the witness is comfortable. If the questions are coming fast and furiously, and that is not okay, slow down the answers. Do not be forced into fast (or slow) answers. After a while, adverse counsel will adapt to the witness’ pace.

What’s Coming Up?

So far, we have addressed the process and what to expect in a lawsuit through fact witness discovery. In the next newsletter, we will look at other discovery tools, expert witnesses, mediation and arbitration, trial preparation, and the trial itself.

Please stay tuned . . .