About Lawsuit
Anatomy of a Lawsuit presents basic information on
the procedures followed in a lawsuit. We are in the process of drafting,
so please be patient. Information will be added from time to time. If you
have a particular issue which you would like us to address, please drop
us an email. When complete, Anatomy of a Lawsuit will carry you from commencement
of a lawsuit until completion.
How a lawsuit begins. Investigation and Dialog. A
lawsuit is formally commenced by service (or filing) of a summons and complaint.
But before a lawsuit formally begins, a lawyer typically engages in fact
gathering and research to make sure that the lawsuit is on a sound footing.
Commonly, a lawyer contacts the adverse party, or its insurance company,
to discuss the claim. By contacting the opposing party, the lawyer serves
two purposes. First, the lawyer enhances the possibility of settlement
before expenditure of substantial fees and costs. Second, the lawyer learns
much about the strengths and weaknesses of the case by listening to the
opposing party's side of the dispute. Sometimes a lawyer urges a client
to discontinue a case, based upon information received from the opponent.
Sometimes a lawyer obtains valuable new information strengthening the case.
In major cases, at the request of the client, the lawyer may draft a pre-litigation
advice memorandum discussing the prospects of success.
Prospects of Success. In considering whether to
bring a lawsuit, a lawyer commonly weighs (a) the potential that the defendant
will be found liable at all; (b) the likely damages awarded in the event
of a favorable decision; (c) whether the defendant has insurance or personal
assets available to pay the verdict. Many otherwise strong cases are turned
down because the lawyer believes that the claim will not be covered by
insurance. The lawyer will also evaluate whether the defendant may have
a claim against the plaintiff. Starting a lawsuit causes the defendant
to consider whether he has claims in return. For this reason, the lawyer
asks whether the defendant may respond with a claim of his own.
Which Court? The plaintiffs lawyer will give careful thought about what court should hear the plaintiff's case. He will want, of course, to choose a court with subject matter jurisdiction, that is power to hear cases of this kind. He will need to sue in a state which can have personal jurisdiction over all necessary defendants, that is the power to subject those persons to a lawsuit. He will consider the appropriate venue, that is, which county court or judicial district should hear the case. The lawyer's decision regarding choice of court will involve convenience to the plaintiff and lawyer. Plaintiff's lawyer may consider the particular judges presiding in that court; may consider how fast the particular court system disposes of cases.
Summons and Complaint. A summons and complaint
initiates a lawsuit. In the federal courts, a lawsuit is formally commenced
with the filing of the summons and complaint in the Court itself. In Minnesota
and many other states, a lawsuit is formally commenced with service of
process on the defendant. Minnesota is unusual because a lawsuit most lawsuits
may be commenced without filing of papers in the Courts. That means that
a lawsuit may move forward without any court file at all. The Courts may
not be aware of the suit at all. In Minnesota, the lawsuit must be filed
if a party wants a court ruling on some matter of the case.
Defendant's Answer. A defendant responds to a summons
and complaint with an answer. If the defendant does not answer, the plaintiff
will win by default. In Minnesota, in most cases, the defendant must serve
an answer in twenty days, although the time to answer may be extended by
agreement. Marriage dissolution answers are due in thirty days; the parties
often agree to suspend the requirement to answer while they negotiate.
Insurance Defense. When the summons and complaint
have been served, the defendant should provide a copy to his insurance
company at once. The insurance company will review the allegations of the
complaint to determine if any aspect of the complaint may be covered by
insurance. Plaintiffs' attorneys commonly grant the defendant additional
time to answer while the insurance company conducts this review. The insurance
company will respond by (a) rejecting the tender of defense in writing,
stating reasons; (b) accepting a full defense of all claims presented by
the complaint; (c) accepting the defense of some or all of the claims under
reservation of rights. This latter occurs when the insurance company believes
that some claims are covered and some are not covered, or that coverage
depends upon disputed facts or facts yet uncovered.
Effect of reservation of Rights. Whe a defense
is accepted under reservation of rights, a potential conflict exists between
the insurance company, which hires the defense lawyer and the defendant.
The defense counsel must make strategic decisions regarding the defense
of the case which may effect which claims are successful and which are
not. A common difficulty arises when the plaintiff offers to settle a case
within the policy limits (or on the covered claims), but threatens to seek
in excess of the policy limits if the case goes to trial. During the litigation,
the defense counsel may need instructions from the insured and from the
insurance company, and at times the two may differ. For this reason, the
defendant may well be advised to consult with another attorney for advice
on issues related to the uncovered claims. Also, at times it may be in
the defendant's interest to commence a declaratory judgment action
to establish coverage. If there is a dispute about coverage, it may be
preferable to resolve that dispute before completing the main litigation.
At other times, it is preferable to delay resolution of the suit.
Insurance policies require prompt notice of claims. If
you have an insurance policy which might cover the claim, you should notify
your carrier right away; failure to notify may result in denial of coverage.
Jump to:
Pre-Trial Proceedings
Discovery
Ten Rules for Deponents
Alternative Dispute Resolution
Trial Begins
Objections
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