One of the greatest freedoms that we have in America is access to a fair, just and equal legal system. Do you actually believe that? In a world where million dollar law suits are filed over a lost pair of pants at the dry cleaners, the abuse of the legal system ultimately ruins the chances for the little man to represent themselves in Court. Most lawyers average $100-$200 per hour. How many individuals working at a minimum wage job can afford a lawyer? The said truth is almost every lawsuit that is filed pro se, or without a lawyer, will be tossed almost 100% of the time.
I have been a legal assistant for approximately 9 years. In my years I have seen a lot of lawsuit abuse. I have also seen hard working people who aren’t given a chance to argue their case because they can’t afford a high priced lawyer from Dowe Cheetem and How. I hope this article will help anyone who is considering filing a civil action in Court. Of course, I’ll preface the information provided here by saying that I am not a lawyer and none of the information provided here shall be construed as legal advice. That being said, let’s talk law!
The law, the unknown, scares most people to death. In all actuality, if you can read and follow directions you can follow the law. Most states have developed statues, which are laws, that outline how everything must be done to be legal. Don’t get lost in the legalese. Most of the statutes can be broken down into plain English by the average person.
To understand this article, I’ll provide you with some vocabulary. This may seem juvenile, but I think this will help you.
1. Plaintiff/Petitioner-the person that files the lawsuit
2. Defendant/Respondent-the person that is being sued
3. Complaint/Petition-the written document that tells what the lawsuit is about
4. Answer-the written document filed by the Defendant/Respondent answering the allegations in the Complaint
5. Pleading Paper-8-1/2″x11″ paper with line numbers running down the left side of each page
6. Service of Process-serving a legal document
7. Default Judgement-an order issued by the Court granting judgement against the Defendant to pay the amount requested in the lawsuit
8. Counterclaim-a Complaint/Petition filed by the Defendant against the Plaintiff
9. Discovery-the formal investigation of your case
10. Interrogatories-written discovery questions
11. Depositions-recorded oral interview of witnesses
12. Request for Admissions-written statements wherein one party asks the other party to admit certain statements
13. Request for Production of Documents-written request for the production of specific documents, pictures, records, etc
The first step in filing a lawsuit is to evaluate your case. Its not wise to file a lawsuit over a bad hair cut or a lost pair of pants at the dry cleaners. Pick your battles wisely. If there has been injury to you, your personal property or real estate you might have a claim.
Once you have fully evaluated your claim, you begin your lawsuit by filing a Complaint. You should visit your local Clerk’s Office and see what form is required by the Court. Some courts have court-approved forms, some accept written Complaints, and others might accept a hand written complaint. Most lawsuits of this nature are public record. The Clerk might help you by showing you an example of a case similar to yours to use as a model. Also, some Courts require that Complaints be filed on pleading paper. Most word processing software has legal pleading templates that will number the paper for you.
When you file your Complaint you will need to summons the Defendant to make an answer to the lawsuit. The Court will issue a summons which will tell the Defendant the names of the parties, or the Plaintiff and Defendant, the case number, the address where all correspondence with the Plaintiff must be sent, and the date on which an answer to the lawsuit must be filed. Ask your Clerk what the Court’s rules are regarding serving the Complaint and the Summons. Generally you can serve the documents in person, either by the local sheriff or a disinterested person or you can send it in the mail by certified mail return receipt requested.
The Defendant is given a short time to answer the lawsuit, usually thirty days or less. If the Defendant doesn’t answer the lawsuit in the time prescribed, the Plaintiff can apply to the Court for default judgement. Depending upon the Court, you may be able to just file a written motion for default judgement. In other jurisdictions you must appear before the judge and argue your case. Most cases, unfortunately, don’t end that easily. If a default judgement is granted, the judge will enter an order and you can begin collection from the Defendant.
If the Defendant files an answer the case will move forward to the discovery phase. Additionally, the Defendant may file a counterclaim within his answer. The Plaintiff will then be required to answer the allegations made by the Defendant.
Discovery can be accomplished by many different methods. The most popular methods are interrogatories, depositions, request for admissions, and request for production of documents.
1. Interrogatories-a written document where you can ask your opponent a wide array of questions. The questions must pertain to your case. This is usually an inexpensive method of getting the answers you want.
Examples of Interrogatories:
a.State your full name, address, date of birth and current telephone number
b.Please state the name, address, and telephone number of any and all witnesses which you intend to call at trial.
c.State the subject matter that each witness will testify to at trial.
d.State whether you have been involved in a law suit prior to this. If so, state the specifics of the case.
e.State the name, address and telephone number of every individual who helped prepare these answers.
2.Depositions-oral questions answered under oath. Depositions are set at a pre-arranged time when the opponent appears, along with a court reporter who will prepare a written transcript of everything that is said. Depositions are quite costly as you have to pay the court reporter for his/her time and for the preparation of the transcript.
3.Request for Production of Documents-a written request to the opponent asking for a true and accurate copy of certain documents pertaining to the case.
Examples of Request for Production:
a.Produce a copy of each and every exhibit you intend to use at the trial of this matter.
b.Produce a copy of all video tapes, photographs and all other media in your possession that pertains to the subject matter of this case.
4. Request for Admissions-a written request to the opponent asking the party to admit, or deny, a statement under oath.
Examples of Request for Admissions:
a. Please admit that you were driving your car March 29, 2007 on Main Street, Nowhereville, USA.
b. Please admit that you struck my car while you were driving in your car on March 29, 2007.
c. Please admit that when you struck my car you were the driver at fault.
Many Courts are requiring that the parties to a legal proceeding attend a settlement conference. A settlement conference is a meeting between you and your opponent and a mediator. This is an attempt to resolve the case without the assistance of the Court. When you attend a settlement conference you should keep in mind that each side must be willing to compromise. You aren’t going to get everything that you asked for in your Complaint.
Pre-Trial motions are motions that parties make before the Court asking the judge to rule on issues of law. The most common pre-trial motions are: motion to dismiss; motion for continuance; and a motion to compel discovery.
1. Motion to Dismiss-This is a motion filed when the Defendant feels that the issues in the Complaint aren’t a valid claim.
2. Motion to Continue-This motion is filed when the Plaintiff or the Defendant wants to continue a trial or a motion hearing. These are a common filing.
3. Motion to Compel Discovery-This motion is filed when you can’t get the Defendant to give you the information that you are asking for. The judge may order the Defendant to turn the information over to you or hold them in contempt.
Sometime during the case you will attend a hearing before the judge called a pre-trial hearing or pre-trial conference. This is a meeting between the judge, you and your opponent. The purpose of this hearing is to tell the Court what issues need to be resolved and reveal what evidence will be presented at trial. Often at this hearing you will be required to submit a pre-trial memorandum. This is a written document that outlines the issues in the Complaint, who your witnesses are, and what exhibits you are going to use at trial.
Once you have completed the discovery, the settlement conference, the motions and the pre-trial conference you are prepared to present the case for trial.
In my next article I will provide the forms of several of the documents reference in this article.
