- Can I recover attorney’s fees (such as the cost of suit) if I win my case?
- Answer: Ordinarily, no, you can not recover your attorney’s fees. Before you initiate a lawsuit you should consider whether or not the proposed cost is worth risking for the results of a successful lawsuit.
- Can I recover special damages, such as punitive damages, if I win my case?
- Answer: Ordinarily, no, you can not recover special damages, such as punitive damages, if you win your case. In order to obtain punitive damages, you must have suffered harm from an action the commission of which was so egregious that the court finds it necessary, in its discretion, to punish the offender for the offense – punitive damages are sometimes not awarded in even the clearest and most egregious of fraud or malpractice actions.
- Can I recover damages for tangentially related losses, such as the costs of refinancing a project due to embezzlement of project funds or the costs for increased medication for an ailment that has progressed due to medical malpractice?
- Answer: Yes, but not unless: (1) you can prove that the primary cause of action is the sole cause in suffering the damages and (2) the damages were reasonably foreseeable by the defendant. Ordinarily, there is enough doubt in the causation and foreseeability of tangential related damages that they will not be awarded except in extraordinary circumstances.
- Can I recover any damages through litigation?
- Answer: Yes. You can recover a monetary amount sufficient to cover the harm directly attributable to the cause of action and which was reasonably foreseeable by the defendant. For example, someone who steals $5,000 from you would be ordered to return the $5,000. You can also obtain interest on certain damages, which in Pennsylvania is limited to six percent (6%) non-compounding simple interest.
- How long will it take to go to trial?
- Answer: Most litigation never goes to trial. For those cases that do go to trial, most take a minimum of two years to reach a state of trial readiness. Cases can be settled much earlier, but it is not uncommon for settlement to be delayed until the day before trial.
- Can you guarantee success?
- Answer: Success is never guaranteed by any attorney, as many factors can undermine any successful evaluation of a litigant’s chances. However, any attorney should be willing to speak candidly to a client about the strengths and weaknesses of a particular case and how the attorney intends to manage the case.
- Can I be sued for suing someone?
- Answer: Yes, but you can only be successfully sued for bringing a lawsuit if you lied about the facts you represented to the court or brought a frivolous action (which your attorney should not let you do).
- Do I have to pay attorney’s fees if I am a defendant? If so, can I sue the other side and obtain representation on a contingency fee basis?
- Answer: Yes, you have to pay attorney’s fees if you are a defendant in a civil case, and, no, you can not obtain representation on a contingency fee basis ordinarily even if there is a counter-suit to be brought.
The Civil Process
Civil Litigation is a process. As a process, litigation takes place in stages. Depending on the type of litigation, these stages may not take place in the standard order, or may take place after additional stages. It is an all too common misconception that litigation is a process whereby two attorneys enter a courtroom and have an argument, after which the judge and/or jury determines who wins. In truth, litigation is a series of actions and counter-actions, as litigants engage in intellectual and procedural sparring to obtain results for their clients.
The following is the standard process encountered when litigating most civil claims:
I. PLEADING – THE FIRST STAGE
The pleading stage consists of the initiation of the action, service of notice of the action by the plaintiff upon the defendants, and the response of the defendants to the initiation of the action. Ordinarily, this means that the plaintiff will file a document, called a Complaint, which will state certain facts that the plaintiff alleges support a cause of action (a problem that the court can address) against the defendants.
It is fairly typical for defendants in civil litigation to respond to a complaint with a document called Preliminary Objections. Preliminary Objections are legal arguments made against the Complaint that do not serve to deny the statements alleged within the complaint, but rather argue that the Complaint is deficient due to some procedural defect.
After a response is filed to Preliminary Objections, and arguments are heard on the same, one of three things will happen: the plaintiff will file an Amended Complaint, the defendant will be required to file an Answer (a responsive pleading) to the complaint, or the complaint will be Dismissed (thrown out).
After preliminary objections have been resolved, and assuming that the action has not been dismissed, the defendant will file an Answer to the Complaint. Answers are usually paragraph by paragraph responses to the statements made in the Complaint, either agreeing with such statements or denying them. A defendant must file an Answer following preliminary objections or risk having a Default Judgment entered. A Default Judgment is an automatic judgment declaring the plaintiff the winner of the action.
Answers are usually accompanied by additional allegations of the Defendant’s own, which collectively are referred to as a New Matter. The New Matter raises defenses on behalf of the defendant and raises new factual allegations that the plaintiff must respond to. Plaintiffs respond to New Matters by filing a Reply to New Matter in which the Plaintiff addresses each paragraph of the defendant’s new matter individually. It is possible (however rare) for a plaintiff to file Preliminary Objections to a Defendant’s Answer and New Matter. If this occurs, the same process for Preliminary Objections to a complaint are followed, but with only two predictable outcomes: the defendant will either have to file a new Answer and New Matter or the plaintiff will have to file a Reply to New Matter.
Once the Reply to New Matter is filed (i.e. received by the court), the Pleading stage is considered closed. Of course, if there are multiple defendants, pleadings are not closed until after the last required pleading is filed.
II. DISCOVERY – THE SECOND STAGE
The second stage is the discovery stage, perhaps the most vital stage of litigation. Litigation is often won or lost in the discovery stage. Discovery is the process by which attorneys obtain information from their opponents in litigation. When proper discovery documents are delivered to counsel for a party, that party MUST answer the discovery document or risk preclusion of their cause of action and possibly sanctions (loss of money or imprisonment) ordered by the court. There are three common forms of discovery that litigants will employ: requests for documents, interrogatories, and requests for admissions.
There is no particular order that these three common forms of discovery must be employed, but all will usually have to be employed in a certain period of time (the discovery period) or be lost.
Requests for documents require the party subject to the request to turn over any documents they possess as such documents may be described by the requesting party. These requests are usually broad and all-encompassing. There is a time limit, usually thirty days, for the party facing the request to respond to it.
Interrogatories are questions that counsel ask each other. These questions must be answered honestly and within a certain time frame.
Requests for Admissions are statements made from one counsel to another. Counsel who receive such requests must agree or disagree with the statements within a period of time or have the court conclude that counsel agrees with all of the statements.
In addition to these common forms of discovery, there exists the fairly common Deposition. Depositions are hearings held by counsel outside of court where the parties or their witnesses may be questioned. Parties to a lawsuit must expect to be deposed and should expect that their witnesses will be as well.
There are other, less common forms of discovery that can be taken as well, including requests for inspection of certain objects subject to litigation and requests for entry upon real property, allowing opposing counsel to enter onto any property that is the subject of the dispute.
III. PRE-TRIAL – THE THIRD STAGE
Often referred to as the Summary Judgment stage, at this point the discovery period has run and the parties may now seek to move the court for a number of remedies, including Summary Judgment. Summary Judgment is the stage at which the facts have been fully developed and the parties will attempt to argue that under the facts as presented, one or the other party deserves judgment as a matter of law (i.e. without a trial or a jury’s involvement). Summary judgment motions are granted more frequently than the less common Motions for Judgment on the Pleadings (which can be filed in the discovery stage if the pleadings make it clear from the start that a judgment can be made – this is very, very, rare). Most actions are either dismissed at the summary judgment stage or settled, although certainly not all actions end this way. It is also possible that Protective Orders or Motions in Limine will be filed during this stage. These are special motions to try and limit what each side may present at trial. This is also the stage during which jury selection occurs. There will likely be at least one pre-trial hearing to try to resolve the matter before it goes to trial.
IV. TRIAL – THE FOURTH STAGE
Once all pre-trial motions have been disposed of and the parties are ready to proceed to trial, the Trial Stage has begun. The attorneys for the parties going to trial usually present a Trial Brief before trial begins. As one might imagine, during the trial stage the court will conduct a trial and the parties will be given an opportunity to present their evidence in an orderly and controlled manner. Trial is not, despite television shows to the contrary, the time to engage in theatrics or scream at the other side. It is a time for careful, reasoned discussion of each side’s position. Certainly it is understandable that people are emotional during trial, but that emotion should be tempered with courtesy and dignity.
Trials may take one or more days to complete. They are often, at the very least, all day affairs.
V. POST-TRIAL – THE FIFTH STAGE
After a trial has ended, parties may be allowed or required to submit Post-Trial Briefs, explaining the position of the parties following the trial. Whether or not such briefs are required, the court will enter a Judgment Order, possibly after the jury has entered its opinion (certainly if it is a jury trial). Following the entry of any Judgment, the losing side will likely file any number of Post-Trial Motions (such as, but not limited to, motions for reconsideration and motions for new trial).
VI. APPEAL – THE SIXTH STAGE
The Appeal Stage can occur earlier in the process, as any dismissal of an action during any of the prior stage could leave the case open to appeal. However, if the other side has lost utterly, you can expect them to appeal. Once an appeal is initiated, your action is suspended until after more motions, briefs and arguments have been made in a higher court. Once all appeals have been exhausted (usually after an appeal to the highest court), the action usually is resolved.
Alternative Dispute Resolution
If you have read this far, you now have an understanding of how time-consuming and difficult litigation can be. This is part of the reason that it is strongly recommended that you have competent counsel represent you throughout every stage of an action. This is also why it is recommended that you should not seek to resolve a dispute through litigation unless the value of the dispute to you is at least as great as the cost of the litigation. There are several alternatives to litigation including Mediation and Binding Arbitration. In mediation, a mediator (middle-man) is called in to try and resolve the conflict with the parties in a way that makes financial sense for both sides. In binding arbitration, an arbiter or panel of arbiters is called upon to resolve the conflict through a short hearing with presentation of evidence; this process is swifter and more certain than mediation, but it is very hard to appeal from the result of a binding arbitration. Attorney Brando provides both mediation and arbitration services for parties seeking to resolve non-family conflicts before they go to trial.