Part One: What is a lawsuit? “X” Marks The Spot
By John J. Pawloski, Esq.
By now, everyone has seen a court room drama, served on jury duty, or unfortunately, been a litigant in the American legal system. However, most cases (more than 95%) are resolved before trial. Some are resolved by a motion adjudicating one party as the winner (this is particularly true in employment litigation), but even more cases are settled.
What are the steps between meeting with a lawyer and trial? First, there is an initial phase where clients meet with their lawyer to devise a game plan. I always advise clients that the true measure of a good lawyer is the accuracy of his or her predictions in the first few meetings as to how the case will turn out. A lawyer who tells you that you have a winning case, only to implore you to take a less than desirable settlement has done you no favor by her representation. Usually, this experience can best be explained by an attorney that either created unreasonable expectations in the client’s mind, or some unexpected event occurred. Well-prepared lawyers suffer few surprises at trial, and experienced trial lawyers are well-versed at responding to the unexpected. Less experienced lawyers, however, are prone to get out of sorts over a new piece of evidence or nuance in the case. You should always err on the side of telling your lawyer too much, rather than too little.
After suit is filed, the defending party files an answer, or a motion challenging the suit or its venue. Thereafter, the parties will, after establishing the pleadings (the lawsuit and its allegations against the defendant) and venue (the place where the lawsuit has been brought), will exchange written discovery. These are requests for documents, photos, witness statements, records of relevant transactions, and questions known as interrogatories. These requests are voluminous and invasive of the client’s privacy. Some lawyers will simply forward these to their clients to answer, but the better practice is to ask the client to gather the relevant materials and to sit down with the lawyer to formulate responses. What appears to be an overwhelming burden can be managed with the oversight of a capable lawyer or paralegal.
Once the written discovery is completed, parties often take depositions of the parties and sometimes additional witnesses. Depending upon the nature of your case and the amount in controversy, expert witnesses may be needed (such as a doctor, accountant, engineer, etc.) to establish proof that is not readily discernible by a lay witness. In my experience, the impact of experts (particularly when each side has their own expert) is limited because the jury discounts the testimony from hired guns. When possible, I try to solicit the opinions of treating physicians and others who were actually involved in the events at issue, but only if their opinions are helpful. These non-hired guns generally carry some sway with the jury, particularly if they are personable and appear knowledgeable in their field. Your attorney should spend several hours with you prior to your deposition to advise you of questions that will likely be asked and how to respond. It is usually advisable to practice with actual questions and answers.
In addition to these formal means of discovery, there are additional avenues to explore. Internet searches, witness interviews (of those not represented by an attorney or a party to the case), going to the scene (particularly in auto accident and premises cases), and a review of other legal files involving the same plaintiff or defendant at the courthouse are measures that are inexpensive, but critical steps to learn important background for your case. These same investigation techniques can be applied to experts and other witnesses. You can glean a lot of information from a person’s Facebook posts or website. At trial, information is leverage.
Not every case warrants the use of each of these available measures. Depending upon the amount in controversy and the financial position of the client, an affordable approach to litigation can usually be achieved. Clients often request a budget or proposal of work and projected expenses. Ask your attorney if he offers alternative arrangements for legal fees, such as flat fee (one set fee regardless of the hours worked on the case), contingent fee contract (where the lawyer takes a percentage of the recovery), or some other kind of arrangement.
Skilled attorneys can usually hone in on the pertinent issues in the case, and formulate a litigation plan that suits your needs. A good lawyer can distill your case into a one minute or less narrative. If this is not possible, usually this means your case is either too complex or your version of events and your claims or defenses are too strained to be believed. Good lawyers can advise their clients that this case hinges upon “X.” If your lawyer is unable or unwilling to explain to you where “X” marks the spot in your case, be advised that you always have the right to seek other counsel.
The decision on selecting an attorney is an important one, and should not be based solely upon advertising, articles, public relations, or marketing. This article is intended for informational purposes only, and is not intended as a substitute for legal advice. No attorney-client relationship is intended by this writing.
John Pawloski is a trial lawyer with over twenty years of litigation and trial experience in Missouri and Illinois. He is the managing member of The Law Office of John J. Pawloski, LLC. His website is Pawloskilaw.com. His practice focuses on the litigation and business needs of small businesses and individuals.
