Litigation is the method of resolving disputes through our court system. When one person has a dispute with another, that person becomes the Plaintiff by filing a formal Complaint with the clerk of court. The Defendant is notified of the proceedings and given an opportunity to contest the statements in the Complaint. The factual and legal issues are framed by the original court documents prepared by the parties, and the case proceeds according to established court rules.
Most contested cases involve some form of Discovery. The court rules provide a number of ways to find and present evidence for trial. Written discovery includes Interrogatories (questions to be answered), Document Requests (lists of documents to be produced for inspection and copying), and Requests for Admission (factual statements to be admitted or denied). Depositions provide a method for direct questioning of a party or witness under oath before trial. Inspections and Physical/Mental Examinations permit one party to learn things that may be controlled by the other party (e.g., the condition of land, personal property or a person).
Regardless of its form, discovery should be relevant to the proceedings in a way that really matters. Unless a legal privilege prevents disclosure of the requested information, most requests are answered without involving the court in the information-exchange process.
Motions may be filed to limit, expand or terminate the proceedings, in whole or in part. In general, motions are written requests for court action. They state the grounds for the request, the relief requested and any other factor that may bear on the court’s decision.
If the case proceeds to Trial, fairly significant time and effort will have been devoted to discovery and motion practice, and more time and effort will be needed to prepare the actual case for a persuasive and orderly presentation to the judge or jury who will decide it.
Please Note: This does not apply to divorce or custody matters. For jury trials, the first step at trial is Jury Selection. The lawyers and judge work together to reduce the risk that actual prejudice, not the merits of the claims and defense, will determine the outcome of the case.
In every case, the parties are allowed to make an Opening Statement, highlighting their theme for the case, what really happened, why it happened and why their client should win. When witnesses testify, the first examination by one attorney is usually a Direct Examination (i.e., open-ended questions), followed by a Cross Examination (i.e., leading questions). When one side is done calling witnesses, the other begins. Motions may be made during the trial to admit or exclude evidence or to direct a verdict as a matter of law.
At the conclusion of the case, the parties are allowed to present a Closing Argument. The evidence and law are argued, the Instructions are read to the jury, and the jurors leave the courtroom to address which case was more convincing and worthy of the respective relief requested, all behind closed doors. When they reach their final decision, the jurors report back to court with their Verdict. (For cases tried to a judge, the judge may issue his decision orally from the bench or may take the matter under advisement and prepare a written opinion.)
A deposition is a method for questioning a party or witness under oath before trial. The specific questions should be relevant to the facts underlying the claims and defenses of the parties and should not infringe on any of the witness’ legal privileges to keep certain matters confidential.
There are 3 reasons for taking a deposition. First, the party may wish to discover information (e.g., finding out facts that are otherwise unknown, confirming agreement with one version of the facts, and probing how well a specific theory of the case may work). Second, the party may wish to preserve a witness’ testimony (e.g., for use in motions, in place of testimony at trial, or to impeach a witness who changes his or her story). Finally, the party may wish to promote the likelihood of settlement.
In preparing for your deposition, you should understand the 3 basic rules for witnesses:
- 1. Tell the truth.
- 2. Listen to the question and make sure you understand it.
- 3. Just give the shortest correct answer to that question.
All the other advice-and there is much more-that may concern your testimony is founded on these principles. Simply put, if you understand these 3 principles in the context of your case, you are well-positioned for testifying at a deposition.Your job as a witness is to place yourself in the time of the events being discussed. Your attorney should identify your role in the proceedings and some of the specific areas of anticipated questioning. At the deposition, your attorney will handle any problems and procedural issues that may arise, including any unfair questions that are asked. You will be given an opportunity to correct any mistakes that you might make. And you can ask for clarification or an opportunity to talk with your attorney if you become confused during the deposition.
The other important area to discuss with your attorney is logistics. You should know who will be present, where you are to go, when you should appear, when the deposition will begin, and what to bring with you.
If you have any questions or concerns, you must raise them with your attorney well before the day of deposition.
While the specific questions are determined on the basis of the case and discovery strategy, the basic topics at a deposition include:
For A Fact Witness:
- Understanding the context
- Recreating the critical events
- Placing exhibits in the proper context
- Refuting specific claims and evidence
- Explaining the results and damages, if applicable
- Personal background
- Any special education, training, experience or expertise
- Personal knowledge and observations
For An Expert Witness:
- Work done
- Work not done
- Theory differentiation
Alternative Dispute Resolution (“ADR”) refers to the process of settling a dispute without going to trial. So what’s wrong with litigation and trials? In the larger context, nothing. Our system of justice is the finest in the world and resolves a tremendous amount of disputes fairly, finally and without much social unrest. In the context of your particular dispute, however, ADR and settlement may be the most effective and efficient means of achieving the best possible result for you.
The various methods of ADR, each with its own variations, include:
- Facilitative mediation
- Early neutral evaluation
- Case evaluation
- Summary trials or proceedings
- Settlement conferences
- Direct negotiation
There are 3 essential elements favoring settlement, sometimes called “the 3 C’s”: Cost, Control and Certainty. A timely settlement can substantially cut your costs and eliminate large amounts of attorney fees, expert charges and litigation expenses. A settlement will give you control over the final result, rather than allowing the judge or jury to control the final outcome. And a settlement will afford you the certainty of a result with which you can live. Trial, on the other hand, is inherently uncertain, and the final result may or may not be the “justice” you had originally intended.