Task: To introduce some of the Concepts of Litigation
Type of Law Applicable: General Litigation
When two or more parties become embroiled in a legal dispute seeking money or another specific performance rather than criminal sanctions, civil litigation is the result. They must instead head to the courtroom for trial so a judge or jury can decide the matter.
A lawyer who specializes in civil litigation is known as a “litigator” or a “trial lawyer.” He represents clients across a broad spectrum of associated proceedings, including pretrial hearings and depositions, as well as arbitration or mediation before administrative agencies or court personnel.
Arbitration and mediation are processes that attempt to guide the parties toward settlement without the time and expense of going to court.
Types of Civil Litigation
Civil litigation encompasses a broad range of disputes, and litigators generally specialize in one or two specific practice areas. Several common areas include:
Environmental law
Landlord/tenant disputes
Product liability lawsuits
Personal injury claims
Intellectual property disputes
Construction liability lawsuits
Medical malpractice claims
Employment and labor disputes
Real estate lawsuits
Anti-trust litigation
Workers' compensation claims
Education law disputes
Divorce lawsuits
Civil litigation can be loosely defined as a legal process in which criminal charges and penalties are not at issue.
The Role of a Civil Litigation Lawyer
The role and responsibilities of a civil litigation attorney can be challenging and diverse. It is an adversarial process with two or more parties pitted against each other. The attorney is his client's advocate, obligated to fight for him to achieve the best possible outcome on the client's behalf.
Lawyers specializing in this field must be willing to assume oppositional positions, to embrace conflict and controversy, and to effectively act as human pit bulls in defense of their clients. Attorneys and litigation paralegals in this field often work long hours, especially during trial.
Certain skills and knowledge are essential to litigation practice. Key legal skills include: Knowledge of substantive and procedural law. Strong written and oral advocacy skills. Analytical and logical reasoning abilities. Ability to synthesize complex legal and factual materials. Superior interpersonal skills. Knowledge of legal research techniques and software. Client development skills Negotiation skills.
The Life Cycle of a Typical Civil Litigation
Case Civil litigation can be divided into several stages including.....
1. Investigation
2. Pleadings
3. Discovery
4. Pretrial proceedings
5. Potential settlement or trial, and even appeal.
Discovery is typically the longest and most labor-intensive stage of a case. Unlike the way they're often portrayed on television, civil attorneys spend comparatively little time in trial. Much of their time is devoted to the discovery stage -- the exchange of information pertinent to the case through depositions, bills of particulars, interrogatories, and subpoenas. The latter are demands for information or documents from third parties.
Depositions, bills of particulars and interrogatories involve questions posed to the parties in a lawsuit. Deposition involves questions that are posed orally under oath. Bills of particulars and interrogatories are written questions.
Not every lawsuit passes through each stage -- in fact, most don't. The majority of lawsuits are settled by agreement of the parties and never reach the courtroom. Parties can settle during trial, even after a jury has begun deliberating or has delivered a verdict. They can settle or "stipulate" to some aspects of the lawsuit, leaving others in the hands of the judge or jury. When a case does go all the way to trial, the entire process, from filing documents with the court to initiate the case through resolution, can take anywhere from a few months to several years.
1. How does a lawsuit begin?
An action is commenced by filing the Summons and Complaint with the Court. This is the step that stops the statute of limitations. Then, the plaintiff has a period of 120 days in order to effectuate service of process.
2. What occurs after the service of a Summons and Complaint?
Depending on the method of service, the defendant(s) will have 20 or 30 days to answer or otherwise respond to the complaint. In other words, the defendant has two options here. It can either file a document that is called an Answer or it can make a motion to dismiss, also known as a Default Motion or a Motion for Default Judgment.
3. What is an Answer?
An “Answer” is a series of numbered paragraphs that correspond to the paragraph number s in the complaint. It’s a completely legalistic document that may include such replies as: “In response to paragraph 84 of the Complaint, Defendant John Smith denies knowledge or information sufficient to forma a belief as to the truth of each and every allegation contained therein”. Or “Defendant repeats and realleges each and every allegation contained in paragraphs “1” to “100”, inclusive, hereof, with like force and effect as though set forth at length herein.
Basically, the defendant must choose between any of several responses for each paragraph: A defendant may admit all or part of the allegations in a paragraph or deny all or part of the allegations in a paragraph; may deny all or part of the allegations; may deny knowledge or information sufficient to form a belief; or a combination thereof. The answer may also set forth affirmative defenses—defenses that the defendant would have the obligation to prove such as that the case is barred by applicable statute of limitations.
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Quiz
2. What is the process that attempts to guide the parties toward settlement without the time and expense of going to court?
3. What is the longest and most labor-intensive stage of a case?
4. How many days does the Plaintiff have in order to effectuate service of process?
5. What is the series of numbered paragraphs that correspond to the paragraph numbers in response to the complaint?