When most people think of the American legal system, they probably think of a courtroom where lawyers argue their cases to the jury under the auspices of a judge. The media and entertainment industry has bombarded the viewing public with dramatic images of the law in action. However, television and the sliver screen only provide a mere glimpse into the actual stages of a lawsuit. Lawsuits may take years to resolve and usually do not end with a dramatic courtroom scene. Further, many lawsuits are settled before either party ever steps into a courtroom. Given the possibilities, it is helpful for a person considering, or faced with, a lawsuit to have a broad overview of the stages of a lawsuit. The
Once you believe you are involved in a situation that requires legal action, finding a knowledgeable and experienced attorney should be your first priority. Gaining the aid of a seasoned attorney, especially one experienced in the specific area of your legal issues, is the most important thing you can do to secure a favorable result. Generally, your first contact with a potential attorney will be during an initial client interview. During this interview the attorney will ask you questions about your legal dilemma. Then, the attorney will give you his or her opinion on the issue and advise you of your options. If the attorney believes you have a viable case and you choose to hire that attorney, the lawsuit can be commenced.
In most states, the filing a complaint officially starts a lawsuit. In Nebraska Courts, such a document is referred to as a Petition. However, in Nebraska's Federal Courts, the document is still referred to as a complaint. A complaint includes the facts of the situation showing a legal right and legal wrong. If the allegations asserted in the complaint fit into some established pattern of a right, then the case can continue. However, if the facts pleaded in the complaint do not match a legal cause of action, the complaint will be dismissed and the lawsuit will die. For example, in order to sue someone for breaching a contract, you must assert the existence of a contract relating specifically to the alleged conduct of the other party.
The defendant has several options as to how to respond to the plaintiff's complaint. For example, the defendant can deny the allegations set fourth in the complaint or can introduce defenses. He can also admit to the allegations in the complaint, either by specifically acknowledging their truth or by failing to deny them properly.
After the complaint has been filed and the defendant has entered his answers, the attorneys on both sides will enter into the discovery phase of the lawsuit. During discovery, the attorneys gather as much evidence as possible about the situation. The discovery phase of litigation serves several important purposes: it can be used to preserve evidence of witnesses who may not be available at trial; to reveal facts; and, to aid in formulating the issues to be litigated. Discovery should aid in crystallizing the trial. Depositions are probably the most useful discovery device. A deposition is a sworn pretrial testimony taken out of court in response to oral or written examination and put in writing for use in court. The other party has the opportunity to cross-examine the witness who was deposed during the questioning at trial.
Furthermore, during the discovery phase parties can obtain access to documents and other items not in their possession. Discovery rules are liberal, allowing a great deal of evidence to be revealed. Depending on the complexity of the suit, the discovery phase may last a year or more.
The case comes together at the pretrial conference. At the pretrial conference, the attorneys talk informally with the judge and agree as to what are the disputed issues. Then, the attorneys share the evidence they intend to present and the witnesses they plan to call to testify during the trial. The judge and the attorneys are then able to plan the course of the trial. In complex litigation, many conferences may be required to give structure to the trial.
Resolution Without Trial
Many cases are disposed of before going to trial. Today, the trend is to settle the disputed issues without the use of a long, drawn out, unpredictable trial. For the settlement to officially end a lawsuit, both parties must agree to be bound by the terms of the settlement. Settlement is the favored way to resolve a legal dispute because parties are able to secure their own interests by taking an active role in designing the resolution. In Nebraska, several different types of alternative dispute resolution (ADR) techniques are available to litigants. Of these, mediation is the most popular. Mediation is a process whereby both sides come together in a forum that is moderated by non-biased third party. This third-party attempts to bring the two sides to an agreement resulting in resolution of the case before trial. This format is very popular in domestic and personal injury cases.
Another way to end a lawsuit prior to trial is through the use of summary judgment. Upon motion of one of the parties, a judge will enter a summary judgment in favor of the motioning party when that party shows there is no genuine legal issue that needs to be placed before a court and that the party can prevail solely on the facts of the case. A case can also be terminated by the court's use of voluntary and involuntary dismissals. All judicial systems provide some means by which the plaintiff (the person who initiated the lawsuit) can voluntarily dismiss the case without the court's approval. This may occur when, upon further investigation, the plaintiff realizes that she does not really have a claim worth pursuing. A court can enter a involuntary dismissal upon a defendant's motion for dismissal on grounds that the plaintiff has not taken the appropriate steps to move the case to trial, such as not showing up at scheduled hearings or meetings. Involuntary dismissals are granted sparingly and only when a plaintiff has been particularly negligent and the delays have put the defendant at a disadvantage.
Assuming the case has proceeded through discovery and survived any pretrial motions, it will be placed on the court docket and a trial date will be assigned. With exception of the time spent picking a jury prior to trial, jury and non-jury trials follow the same general rules of order. Generally, the trial proceeds as follows. The plaintiff's attorney followed by the defendant's attorney each make opening statements, explaining what he or she intends to prove. The plaintiff's witnesses and evidence are introduced, examined and cross-examined. Then, the defendant's witnesses and evidence are introduced, examined and cross-examined. Finally, both the plaintiff and defendant are allowed to introduce rebuttal evidence. After all the evidence has been submitted, each side presents a closing argument summarizing the evidence most favorable to their party. The plaintiff makes the first closing statement and has a right of rebuttal after the defendant's closing argument
If it is a jury trial, the judge will instruct the jury as to the law that is to be applied. Generally, the judge requires the parties to submit possible jury instructions. While some states have standard instructions that must be used, other states allow the parties some input as to how the instructions will be worded. In Nebraska, Courts primarily used what are termed Pattern Jury Instructions. The jury then retreats to the jury room where they deliberate until a verdict is reached. In the case of deadlock, the judge must send the jury back to deliberate and if that does not break the deadlock, the judge must declare a mistrial. If the jury returns a verdict, the judge generally will enter a judgment on the verdict.
Once a judgment is entered, the winning party is entitled to the amount of the judgment. However, the actual amount the prevailing party receives and when they receive the money, is dependent upon many factors. For example, in personal injury cases, the prevailing plaintiff's attorney may be entitled to 1/3 of the monetary award depending on the attorney's specific agreement with the plaintiff. Further, additional costs incurred by the plaintiff's firm, such as expert witness expenses, may also be deducted from the award. Prevailing parties may also encounter problems when trying to recover the money from the losing party. The prevailing party may be forced to commence collection proceedings against the losing party. Therefore, the monetary damage award set out in the judgment does not necessarily reflect what the prevailing party will actually receive.
Appealing the Court's Decision
Trial decisions are not final. If a party is not satisfied with the results of his or her trial, an appeal of the judgment can be made. Although a party usually has the right to an appeal, there are usually strict time deadlines in which the appeal must commenced. Once a party files for appeal, the party will not be required to comply with the court's decision because an appeal acts like a freeze on the judgment. When considering an appeal, consult with an experienced appellate attorney, who will secure your appeal rights and your interests. Lawsuits in Nebraska
Civil Litigation in Nebraska is controlled by a variety of statutes and case law. For example, the procedure for filing a Petition, as well as the procedure for moving the case forward to trial, is controlled by Chapter 25 of the Nebraska Revised Statutes. In addition, the rules of evidence, which govern what evidence or testimony is or is not admissible at trial, is governed by Chapter 27 of the Nebraska Revised Statutes. Finally, discovery, discussed above, is controlled by the Nebraska Discovery Rules for All Civil Cases. These three subjects, procedure, evidence and discovery, are the backbone of any civil litigation commenced in Nebraska District Courts.
Today, many people are turning to legal system to help them settle disputes. However, much more time and procedure is involved in bringing a lawsuit than most people realize. The stages of a lawsuit can continue for year and even longer if the decision is appealed. Because the process is so complex, it is necessary to enlist a knowledgeable and experienced litigating attorney who has ample experience with your legal issues.
*article courtesy of Mark Alan Forehand, firstname.lastname@example.org.