Should you file a lawsuit?

Should I file a lawsuit?

We are often asked if a lawsuit should be filed. Our response is only as a last resort. Civil litigation can be time consuming and costly. The last thing most homeowners want to do is be involved in protracted litigation. Therefore, we advise you to exhaust all avenues of negotiation with the responsible parties prior to initiating a civil lawsuit. Remember DO IT IN WRITING. A civil trial consists of a pleadings stage, a discovery stage, mediation, a summary judgment stage, and then a trial stage.

I. The Pleadings Stage

This stage begins with the filing of a Complaint. The defendants as a general rule have up to 30 days to answer the Complaint and will typically take the entire time. Then they get a chance to file a motion to dismiss, which they usually do. The reasoning for this is that the defense attorney who gets paid by the hour has no incentive to dissuade his client from trying such a motion on the off chance that it works. In other words it gives them something to do and it is a way to make a plaintiff’s case more expensive and dissuade people from filing lawsuits to redress their rights.

II. The Discovery Stage

During the pleadings stage and after it has concluded, the parties are allowed to conduct “discovery.” Discovery consists primarily of interrogatories (written questions that each side is allowed to ask), document requests (each side can request the others sides pertinent documents) and depositions (each side can take the sworn testimony of the other sides witnesses, including the defendants and plaintiffs). The purpose of discovery is to learn about the other parties’ case to prepare for trial, and to assess settlement possibilities. Being the plaintiff, with the burden of proof, we usually have the job of seeking the information from the defendant. Although there is supposed to be a free exchange of information, this process also has become the source of abuse. Some plaintiff’s lawyers have sought information not specifically tailored to their case and defense lawyers have found that by claiming that this happens in every case they can avoid producing anything that the Judge does not force them to produce. It also allows a firm which is paid by the hour to justify their work on the case.

III. Mediation

Some Courts will order “mediation” after four to six months, depending on the congestion of the court dockets. The Court orders mediation in the hope that the parties will settle the case and not have to clog up the courts with a complicated trial. In mediation, a mediator, typically a lawyer who is a certified mediator, attempts to bring the parties together. Each defendant is in attendance, with their attorneys, and insurance adjusters. If the defendants do not offer the amount you will settle for, the mediator declares an “impasse.” This is legal jargon for “the case did not settle, get ready for trial”. If the case does not settle at mediation, the lawyers can continue to negotiate, but it is much more cumbersome to negotiate with one defendant at a time, typically over the telephone. You should not be discouraged if the case does not settle during mediation. We have settled dozens of cases after mediation.

IV. Summary Judgment Stage

After discovery concludes, the parties can file for summary judgment. Hopefully, you will not have to endure this stage. “Summary judgment” is a request by the defendants to have some, or all, of your case thrown out of court “as a matter of law.” The arguments are varied, but typically center on the defendants’ perceived lack of legal obligations to you. After summary judgment, the next stage is the trial stage.

V. Trial Stage

If the case does not settle, twelve jurors will hear your case. In very general terms, the plaintiffs put on their evidence first, next the defendants, and finally the jurors decide. We realize that no homeowner wants to even consider the time and expense of a trial. However, this is a reality that you must consider, short of dismissing the case, if the case does not settle. Of course, some of the best settlements come on “the court house steps” or during the trial. As a general rule, it is typically at least one year from the filing of the Complaint, before the case will be placed on a trial calendar.