| |
1. What is Civil Litigation?
Civil Litigation is a lawsuit between two or more people or entities that does not seek criminal sanctions. It is distinguishable from Criminal Litigation, wherein a government agency, such as the State of NH , or the Commonwealth of MA seeks to convict an individual of a criminal charge. The remedy sought in Civil Litigation is usually money or a judgment that requires one party to do something or to stop doing something. Civil Litigation encompasses many different kinds of cases, such as landlord/tenant cases, accident cases, breach of contract cases, discrimination cases, business disputes, medical malpractice, etc.
2. Who is the “Plaintiff” and who is the “Defendant”…Who is the “Petitioner” and who is the “Respondent”?
Plaintiff or Petitioner can be identified as the person or entity that starts the action. The Defendant or Respondent is the person or entity that defends or responds to the action. Different jurisdictions use the terms for different actions. For example, in NH, the term “Petitioner” is most often used for the person who starts the action, which is called the “Petition”. In MA, the term “Plaintiff” is most often used for the person who starts the action, which is called the “Complaint”.
3. How do I know what to do if I am served with a Summons and Complaint ?
The first thing that you need to do is to determine what you are being sued for, and when your answer to the complaint is due. The best way to understand your rights and the ramifications to you is to contact an attorney. You only have 30 days from the date you were served to respond to the complaint, so the appointment with an attorney should be scheduled immediately.
4. Why can’t I represent myself?
There is NO requirement that you have an attorney at anytime during a civil suit. You always have the absolute right to represent yourself. No one else, other than a lawyer, may represent you in a court of law. However, there is an old adage that goes something like this: “The man that represents himself has a fool for a client”. However, it is totally up to you!
5. When must I file or respond to a civil action?
Again, that depends upon the type of case. With regard to the filing of an action, there are time limits called “Statutes of Limitation” which determine the time frame within which certain actions must be filed. A Statute of Limitations is a bar to a suit in the event that the Statute is missed. Different actions are governed by different Statutes of Limitation. For example, if you are an adult suffering from what you believe is medical malpractice, you must file your action within three years of the date that you discovered the “injury”. If you have suffered injuries as a result of a car accident, you have three years from the date of the accident within which to file your action. Again, although these sound like hard and fast rules, many different circumstances may affect the length and applicability of a Statute of Limitations. Therefore, the most prudent thing to do is contact an attorney to make sure that you haven’t missed the statute. With regard to a response to a civil action, a good rule of thumb to follow is that you must answer within twenty days. However, seek the advice of counsel before filing any answers. There may be grounds for motions that could be filed to put an end to the suit before your answer is due. By answering without raising your rights at the onset, you could lose your opportunity to end the suit before it starts.
6. What should I take with me when I meet with the attorney?
The summons and complaint are absolutely necessary. There may be flaws with either of those documents that would entitle you to ask the court to dismiss the case. Aside from that, the complaint contains the factual allegations against you that your attorney will have to refute. In addition to the summons and complaint, you should take any documents in your possession that relate to the subject matter of the lawsuit. Remember that the term “documents” is not limited to pieces of paper. It includes all manner of electronic communications, including emails. Be prepared to discuss the facts of the case fully and frankly with your attorney in as much detail as you possibly can. Pay particular attention to the sequence of events. It is always tempting to rush ahead to the part of the story that you think clinches the case in your favor, but the sequence of events is at least equally important. Also, take a moment before your appointment to create a list of the names of people who know about the matter described in the complaint. Be sure to include contact information for the people you identify, because your attorney will want to talk with them in order to prepare them to be witnesses in the case.
7. What will I have to do after I meet with the attorney?
There is no definitive answer to that question since every case is unique. Your attorney will probably ask you to assemble as much additional information as you possibly can. Once you have given your information to the attorney, she will prepare the Answer to the complaint and file it with the court. She will also serve a copy of the Answer on the plaintiff’s attorney or on the plaintiff if the plaintiff has no attorney. If the facts of your case warrant it, your attorney may also prepare a “Counterclaim.” A counterclaim, sometimes referred to as a “counter suit,” asserts claims for damages that you believe the plaintiff owes you.
8. After the Answer is filed and served, what happens?
After the complaint and answer are filed, the case proceeds through a process called discovery. In discovery, the parties exchange information in order to: (1) determine whether the case can be settled without a trial; and (2) prepare for trial. Along the way there will probably be a mediated settlement conference in which a third party will review the case and discuss settlement possibilities with the parties. If settlement discussions break down, the case will go on to trial.
9. How long will all this take?
In a 2003 survey, the North Carolina Bar Association found that the one thing that causes non-lawyers the most dissatisfaction with the legal system is the amount of time it takes to complete a case. The time it takes for a lawsuit to proceed through the judicial system varies with the complexity of the issues involved, the number of parties involved and the county in which the suit is brought. In the more populous counties, like Wake and Durham, it generally takes longer to get a case called for trial than it does in Orange or Chatham, for example, but even then, it is not reasonable to expect your case to come to court quickly. Expect the wait to be one year at a bare minimum, but in very complex cases, waiting 18 months to 2 years is not uncommon.
Copyright © 1994-2006 FindLaw, a Thomson business |
|
