You were seriously injured due to someone's negligence. You picture yourself walking into court with your lawyer demanding justice. You imagine the trial and you picture a jury siding with you. You can even imagine the satisfaction you will feel knowing that justice has been served. Somehow the thing you never imagined is that the justice you see dispensed in a matter of hours on television takes months and even years in the real world.
Why Does It Take So Long to Receive Justice?
Contrary to what you see on television, it is unlikely that you can walk into a lawyer's office one day and expect to be in trial the next day. Even if you could, such expediency would not be desirable. Careful preparation is the key to success in a lawsuit. And, you may also be surprised to learn that when your case is properly prepared, it is more likely to settle than go to trial.
Most cases begin with the assertion by one party that he or she has been wronged in some way. This first phase might be thought of as the investigative phase. When you walk into your attorney's office, expect to spend some time explaining in detail the reasons you believe you have been wronged. Your lawyer will want to review any materials you feel will bolster your claim. If you have documents or other pieces of evidence that relate to your claim, bring them with you to your initial meeting. There may be additional materials such as medical, tax or employment records. If you do not have these records or materials in your possession, your attorney will request them from the appropriate sources. It can take a month or more before your attorney receives a response to these requests.
While waiting for answers to the requests mentioned above, your attorney will investigate your claim by interviewing potential witnesses for and against you, photographing locations such as the site of your accident if you are making a claim for personal injury, and consulting with experts whose opinions might be called upon to strengthen your claim. Your lawyer may also need to do legal research to determine what laws are applicable to your claim and to see whether claims like yours have been successful in other jurisdictions. Your attorney will also determine who the potential defendants are in your case. If your claim is for an injury, your attorney may need to wait to see whether your medical condition is permanent.
After all your records are obtained, they are forwarded to the defendant's lawyer/insurance company for the purpose of negotiating a settlement. This process can take 2-5 months based on the complexity of legal issues and size of money damage claimed. If your claim cannot be settled a lawsuit will be filed.
The complaint will list a number of theories under which you may recover or win. The complaint is served either personally or by mail on every person named as a defendant in the lawsuit. A copy will also be filed with the court. The defendants will then have a number of weeks to respond to the complaint. The answers usually deny the substance of the complaint. The defendants may also allege defenses, such as lack of jurisdiction, the running of the statute of limitations, or the failure to state a claim on which relief may be granted. Sometimes defendants will bring in additional parties who will also be allowed a number of weeks to respond. Where necessary, the court may hear motions relating to certain defenses raised. When such motions are heard, time is allowed for each side to prepare written arguments and responses before the hearing.
Once the complaint has been answered and the preliminary motions heard and decided, many courts will call all the attorneys together to set a schedule for discovery and trial and also to determine whether some form of alternative dispute resolution is appropriate. Discovery is the part of the case where each side learns what information the other side has about the case. Discovery is done through written questions called interrogatories and written requests for the production of documents and other items. Each party to the case is allowed to request that the other party answer such questions and provide such documents or other items as are relevant to the case. When your attorney sends written discovery to an opponent, the opponent will generally have about a month to answer it.
In addition to the written discovery, your lawyer will probably want to do discovery by way of deposition. In a deposition, the attorneys involved in the case ask the person being deposed (the witness) to answer questions relating to the case. The witness is sworn in as in a trial. The answers are taken down by a transcriber and made into a transcript, a booklet that looks much like a script. Occasionally, the deposition will also be videotaped. The purpose of the deposition is generally the same as other types of discovery, to learn more about the case. Because all of the lawyers involved in the case will want to be present at the deposition, and because a transcriber and perhaps a video person will have to be scheduled, depositions often take a number of weeks and sometimes even months to complete. In addition, as the attorneys learn more about the case through the use of the various discovery devices, additional depositions may be scheduled. This will again extend the length of the discovery phase of your case.
Once your attorney is satisfied that he or she has learned everything possible that there is to know about your case, he or she will begin to prepare for trial. At this point you may face motions for summary judgement. These motions are basically saying that you cannot win your case. As with the other motions mentioned above, your attorney will be allowed a length of time to respond in writing to the motion. Your opponent will then be given a certain length of time to reply to your response. Often times you will have to wait weeks or months for the decision.
If your claim survives summary judgement, you may proceed to what is collectively known as alternative dispute resolution. Alternative dispute resolution includes mediation and arbitration. The goal of alternative dispute resolution is to resolve the case without a trial. Maybe you are asking yourself why you would want to avoid a trial, since a trial is the very thing you went to a lawyer for. Basically, trials are expensive and often time cumbersome ways of achieving the goals that set you in the direction of your local attorney's office. If you went to your attorney's office looking for justice, you may find it sooner through alternative dispute resolution than you would through a trial. If you are unable to settle your claim through alternative dispute resolution, your case will be placed on the trial schedule.
Once on the court's trial schedule, you will be given a date on which your trial is supposed to begin. Do not, however, be surprised if the date is changed. If the case ahead of yours runs long, your case may be delayed. And even when your day finally comes, your trial may drag on for days or weeks due to conflicts in the judge's schedule or illness of attorneys, witnesses or jury members. Once all the evidence is presented and the closing arguments are made, you have to wait again, this time for the jury's decision. When the jury comes back with your verdict and you finally have the justice you sought, be prepared to wait once more, for the defendant's notice of appeal that will certainly follow.
Conclusion
When you feel you have been wronged your impulse is to want justice immediately. But, in order for justice to prevail, your case needs to be clearly and strongly presented. A clear and strong presentation rests on diligent investigation, and aggressive discovery. Such diligence in investigation and discovery takes the time and skill of an experienced trial lawyer. If it is done correctly, often time you can achieve your goal of justice without the time and expense of a trial. But, in the event that a trial is necessary you want an attorney with ample trial experience representing you.
*article courtesy of Harvey L. Walner, walner@walnerlaw.com.