Anatomy of a Lawsuit

1. Anatomy of a Lawsuit Law and Higher Education

2. Overview • The court cases you will be reading all began in similar fashion. Well, not necessarily identical, but each began generally the same way. • The following slide graphically illustrates the steps.

3. An incident Plaintiff Gets Attorney Plaintiff files petition; serves defendant Defendant hires an attorney Settlement Negotiations Defendant files answer, crossclaim, and/or counterclaim. ADR Pre-trial hearing Discovery Trial Appeal Click to continue

4. Now let’s examine each part • The incident • While the graphic used a car wreck, it can really be just about anything. • Fired from job • Arrested • Slipping on a grape in a grocery store • Bit by a neighbor’s dog • Expelled from school • Contractor failed to do the work as promised • Informed that you cannot hold a rally in front of the student union • As you can see, the list can go on and on. • For purposes of this continued illustration, we will use a car wreck.

5. What’s next • Plaintiff hires or retains an attorney • Who is the plaintiff? The plaintiff is the person injured who is bringing the lawsuit. • The method of hiring depends on the nature of the case. • If there is a type of injury that can result in monetary damages, then many attorneys will work on a contingency fee basis. This means they do not get paid a fee unless the client receives payment for their injuries. • The client may still have to pay for other costs. • Constitutional issues, contract claims, employment issues, may require hiring an attorney at a fixed hourly rate.

6. After hiring an attorney • Plaintiff files a petition and serves defendant • The lawsuit papers that are filed are not called a petition in every state. But the petition is simply the papers that begin the lawsuit. • Simultaneously or shortly after the petition is filed with the appropriate court, the defendant is “served.” • The defendant is the party or parties being sued by the plaintiff. • Not dinner, but papers of their own informing them of the lawsuit. This puts the defendant on notice of the nature of the claim and the first date of appearance.

7. So when you get served . . • Defendant retains an attorney • A defense attorney rarely works on a contingency fee basis, unless the defendant has a really good counterclaim (see below). As a result, the defendant usually has to pay an attorney by the hour. • Files Answer, Counterclaim, and or Crossclaim • The answer is the response to the claim by the plaintiff. • A counterclaim is where the defendant becomes like a plaintiff, and is suing the original plaintiff for doing wrong. • A crossclaim is where the defendant sues another defendant.

8. Crossclaim/Counterclaim The orange car hit the red car and the red car hit the yellow car. So Y sues both O and R because she does not really know who was at fault. Crossclaim—R sues O for her own damages because O hit her. Counterclaim—O sues R for faulty brake lights. If R sues Y for faulty brake lights, what type of claim would that be? Counterclaim

9. After everybody sues each other • Pretrial • Most jurisdictions require a pre-trial meeting to gather the parties and discuss the process and the case. • Discovery • A part of this discussion is the discovery process. • Discovery is the term used when attorneys want to “discover” facts about the case. There are numerous methods used. The most common are: • Depositions • Interrogatories • Request for documents • Physical examinations • Request for admission

10. Discovered everything there is • Trial • A trial can be by a judge only or by a judge and jury. The judge determines the applicable law. If a jury trial is selected, the jury determines the facts and then applies those facts to the law. A judge does both if no jury is used. • Appeal • If one or both sides do not like the outcome of the trial, they have the opportunity to appeal the case to the next higher court.

11. What is happening in the background • In the illustration, there were two words on the sides that came out at different times. This is the behind the scene activity. • Settlement Negotiation • In many cases, the moment the defendant retains counsel, settlement negotiations begin. In other words the defendant is deciding what is the most they will pay to avoid trial, and the plaintiff is deciding what is the least I will take to avoid trial. This process can continue until just before the actual trial begins.

12. ADR • Alternative dispute resolution • ADR can be either a court enforced method of trying to settle a case before trial to keep the court docket from getting too full, or an agreed upon method of settlement negotiation where they use a disinterested third party to determine the merits of the case. Notice that ADR came out during the pre-trial hearing. In many jurisdictions, judges will encourage or even require parties to attempt ADR before going forward with a trial. • Specific methods of ADR include mediation, arbitration, private judging, and settlement conference.