5 Things To Know if You’re a Party to a Lawsuit

Nobody asks to be a plaintiff or a defendant in a lawsuit.

Very few of us wake up and think “I’d really like to spend the next several months of my life talking to lawyers.”

But, try as you might to avoid it, the day might come when you are party to a lawsuit.

If that day comes, Bulman Dunie attorney Vi Nguyen offers 5 important things you should know.

1) Understand if You (or the Other Side) Has a Valid Legal Claim

The first step in pursuing a lawsuit is determining whether you have a valid legal claim.

When an incident happens, there are likely multiple claims that may develop. It is important to be familiar with the law and ensure all the elements of possible legal claims are met. An attorney can help you in this regard. Once you identify a legal claim, then consider what types of relief or damages may be available. Depending on the claim and remedies available, there may be different avenues to pursue the claim. Some claims may involve immediately filing a lawsuit in court – others may be resolved short of a lawsuit.

Conversely, if you learn that a claim has been filed against you, can the other side establish all of the legal elements of that claim? Have they filed or asserted their claim properly as a matter of procedure? And are there any counterclaims that you might be able to file?

2) Know Your Deadlines

The law is very clear in setting procedural time frames and deadlines for when things must be done.

Perhaps the most important deadline is the “statute of limitations”. This is the deadline for somebody to file a lawsuit after a claim arises. The “limitations period” varies by state and by legal issue, so it is important to do the proper research to ensure that you are not barred from bringing your claim because it is too late. If you file after the limitations period, your lawsuit could be forever barred and the doors of the courthouse closed to you.

Once a lawsuit is filed, there are additional deadlines for filings to ensure that you have the opportunity to present your claims or defend yourself. A defendant must respond to the lawsuit within a certain period after being served with the suit. Failure to timely respond can cost you the ability to fully defend yourself. Consequences include having a “default judgment” entered against you, which may prevent you from offering a defense.

3) You Will Be Able to Learn About the Other Side’s Case Through “Discovery”

In most cases, with the exception of small claims civil cases, there is a process called “discovery”.

This is the exchange and collection of information relating to a lawsuit. It avoids trial by surprise and offers both sides the ability to understand the strengths and vulnerabilities of their case.

The parties often issue “Interrogatories” and “Requests for Production of Documents” to each other, requesting that the other side disclose witnesses and share documents which they will rely upon in pursuing or defending the case. Parties may also subpoena third parties to collect additional information regarding the lawsuit. This may involve, for example, the collection of medical or financial records. Parties can also require witnesses (and the other party) to testify under oath in a “deposition”.

It should be no surprise that there are also deadlines related to discovery. These deadlines include how long you have to serve discovery, how long you have to respond to discovery, and how long you have to object to discovery that is improper. Once the “discovery period” closes, the court is often reluctant to reopen discovery.

If you miss discovery deadlines, you may lose out on being able to use valuable information when arguing your case at trial or having a sound understanding of the strength of your case.

4) The Vast Majority of Cases Never Reach a Courtroom

Going to court and having a trial is not the only way to resolve legal matters.

A majority of cases are resolved through Alternative Dispute Resolution (“ADR”).

One form of ADR is mediation. In mediation, the parties are often separated from each other and a mediator, who is a neutral third party, is the line of communication between them. The mediator discusses the case with each party and facilitates negotiations between the parties. A mediator does not make a decision but rather attempts to convey each party’s thoughts and desires to the other, in hopes of reaching a mutual agreement. Many courts require parties to participate in mediation before a trial date will even be set.

Another form of ADR is arbitration. Arbitration is essentially private court. A third party fact-finder hears each side’s case and the testimony and evidence from each side. The arbitrator then makes a legally-binding decision. If you look in the fine print of many consumer contracts, you will find arbitration provisions requiring that any dispute be resolved by arbitration in lieu of court. Businesses often favor arbitration because disputes are resolved much more swiftly and in private relative to the judicial process.

5) Pursuing or Defending a Lawsuit May Be Expensive – Or It Might Not

It is very important to have an attorney guide you through the process of pursuing or defending a legal claim. While it is possible to represent yourself in court (to proceed “pro se”), without the assistance of an attorney, you very well may miss deadlines or bungle the pursuit or defense of a claim.

The cost of hiring an attorney may be high. Many attorneys charge fees on an hourly basis at a fixed hourly rate. The fee that you pay will depend upon the number of hours that the attorney spends on your case, multiplied by their hourly rate.

However, attorneys may reduce the risk to the plaintiff in a lawsuit by working on a “contingency fee”. A “contingency fee” or “contingency arrangement” means that you will not be responsible for payment of your attorney during the course of your case. Rather, the attorney will receive an agreed-upon percentage of whatever he/she is able to recover for you. The attorney’s percentage often changes depending on whether the case is resolved with or without a trial. These percentages must be clearly disclosed and explained to you before you hire the attorney and will be in the form of an “engagement agreement” or “retainer agreement”. Contingency fees are prohibited in certain types of cases, chief among them being family law cases and criminal cases.  Contingency fees are more commonly used in the representation of plaintiffs in personal injury or malpractice cases.

Defending a lawsuit can also be expensive. However, you may have insurance which not only includes covering damages you might have to pay, but also includes the cost of legal representation in defending the suit. Automobile insurance and homeowners insurance are two types of insurance which regularly provide “cost of defense” coverage. If you are served with a lawsuit (or think you may be exposed to a lawsuit) consider exploring your policy to learn about your coverage.

In addition to legal fees, there are additional costs to filing or defending a lawsuit. There are often filing fees, investigation expenses, discovery costs, and trial costs. Discuss costs with your attorney at the beginning of the process to understand the projected costs of pursuing or defending the lawsuit.

Concluding Thoughts

Even the prospect of bringing or defending a lawsuit can be intimidating. Hopefully you will be in the minority of individuals who never has to consider the issues raised here. However, if you do need assistance, the attorneys at Bulman Dunie can guide you through the process. Contact our office at 301-656-1177 for assistance.