What to Expect as a Defendant in a Civil Suit
|
For most people, this is a new experience. The only frame of reference you may have comes from movies, television and books. The reality is a little different. Below are answers to some frequently asked questions we hear from defendants in civil cases.
How long does a civil lawsuit take?That depends on how much you are willing to offer in settlement. As a defendant, unless you have strong counterclaims against the person who sued you, settling out of court generally means you will pay something. If you do not settle the case, you should know that most civil cases take one to two years to get through trial.
What do I have to do to answer the complaint?Usually the first step for the defendant in a civil lawsuit is to file an answer to the complaint. The time limit for filing an answer is 20 days from when you are served with the summons and complaint. In practice, this deadline is frequently extended, but it is important to secure counsel immediately to make sure the deadline is not missed.
An answer is a relatively simple document that simply admits or denies the facts claimed in the complaint. If you have claims against the plaintiff, your lawyer will include those counterclaims in this document. |
Need Help With a Civil Lawsuit?OR
|
What is discovery?
"Discovery" is the process by which the plaintiff and defendant gather information relevant to the case. People are often surprised by how broad the scope of discovery is. In both federal and state court the rules of civil procedure allow parties to ask questions about anything reasonably likely to lead to the discovery of admissible evidence.
You should remember that while you are answering questions you don't necessarily want to answer, the other side has to do the same. Here are the kinds of discovery that usually happen:
Requests for documents. The documents from both sides are key to resolving the claims. You should expect to provide any letters, emails, notes, reports or other business records relevant to the claims in the lawsuit. This will include things that are helpful to your defense and often things that are not. They all must be provided to your lawyer. Your lawyer can object to certain requests if they are overbroad, irrelevant, or ask for privileged information. It is important, however, to share all relevant documents with your attorney even if they will not all be produced to the other side.
Interrogatories. These are written questions that you must answer under oath. Your attorney will ask you for information then help you write the responses. Again, your attorney can object to certain questions or try to limit the answers if appropriate.
Requests for admissions. This is a document that sets forth specific facts and asks you to admit or deny them. Sometimes these are straightforward and involve facts that are not really in dispute. In this case, the requests for admissions save time in discovery by establishing baseline facts. Other times they are a more strategic effort to get you to admit facts that are harmful to your case. Your lawyer will review these carefully with you and object where appropriate.
Depositions. These usually happen after all of the written requests above are answered. A deposition is a form of testimony, but happens outside of court. If it is your business that has been named in the suit, you can expect a deposition of a representative of your company, as well as any individuals with important knowledge of the facts.
Depositions are extremely important to your defense, so you should plan to spend time with your lawyer preparing for it. The deposition itself usually happens at the office of the other side's attorney. You can expect to be in a conference room with their lawyer, your lawyer, and the court reporter. You should plan for the deposition to last all day, though sometimes they are shorter.
You should remember that while you are answering questions you don't necessarily want to answer, the other side has to do the same. Here are the kinds of discovery that usually happen:
Requests for documents. The documents from both sides are key to resolving the claims. You should expect to provide any letters, emails, notes, reports or other business records relevant to the claims in the lawsuit. This will include things that are helpful to your defense and often things that are not. They all must be provided to your lawyer. Your lawyer can object to certain requests if they are overbroad, irrelevant, or ask for privileged information. It is important, however, to share all relevant documents with your attorney even if they will not all be produced to the other side.
Interrogatories. These are written questions that you must answer under oath. Your attorney will ask you for information then help you write the responses. Again, your attorney can object to certain questions or try to limit the answers if appropriate.
Requests for admissions. This is a document that sets forth specific facts and asks you to admit or deny them. Sometimes these are straightforward and involve facts that are not really in dispute. In this case, the requests for admissions save time in discovery by establishing baseline facts. Other times they are a more strategic effort to get you to admit facts that are harmful to your case. Your lawyer will review these carefully with you and object where appropriate.
Depositions. These usually happen after all of the written requests above are answered. A deposition is a form of testimony, but happens outside of court. If it is your business that has been named in the suit, you can expect a deposition of a representative of your company, as well as any individuals with important knowledge of the facts.
Depositions are extremely important to your defense, so you should plan to spend time with your lawyer preparing for it. The deposition itself usually happens at the office of the other side's attorney. You can expect to be in a conference room with their lawyer, your lawyer, and the court reporter. You should plan for the deposition to last all day, though sometimes they are shorter.
How much does litigation cost?
Most often as a defendant in a civil suit you will have an hourly fee agreement with your lawyer. This means the actual cost can vary widely depending on the time needed.
It is a good idea to check in with your lawyer on a regular basis for an estimate of what is coming up. You can also discuss with your lawyer a budget for the different pieces of discovery. There are some things the attorney simply has to do in order to meet his or her professional obligations, but they should be open to a conversation about how much time is spent.
There are also out of pocket expenses involved in a civil suit. If your case requires expert testimony (uncommon in the cases we handle), the expert will need to be paid.
The other main expense is for deposition transcripts. For your deposition and any others that are taken, the court reporter will charge for the transcript. This cost varies depending on the length of the deposition, but generally ranges from $300-$900 per deposition.
It is a good idea to check in with your lawyer on a regular basis for an estimate of what is coming up. You can also discuss with your lawyer a budget for the different pieces of discovery. There are some things the attorney simply has to do in order to meet his or her professional obligations, but they should be open to a conversation about how much time is spent.
There are also out of pocket expenses involved in a civil suit. If your case requires expert testimony (uncommon in the cases we handle), the expert will need to be paid.
The other main expense is for deposition transcripts. For your deposition and any others that are taken, the court reporter will charge for the transcript. This cost varies depending on the length of the deposition, but generally ranges from $300-$900 per deposition.
How often should I hear from my lawyer?
Any time you have questions or concerns, you should be able to reach your lawyer or someone on their team. You also have a right to expect to hear from your lawyer any time there is a development in the case or a settlement offer.
You should understand that there are sometimes stretches of time in a civil lawsuit in which nothing is happening. For example, after you serve discovery requests on the plaintiff, they usually have 30 to 45 days to respond. It is common for lawyers on both sides to agree to reasonable extensions of these deadlines. Also, when motions are filed and opposed, neither side can control how long it takes for the court to take action on a motion.
You should understand that there are sometimes stretches of time in a civil lawsuit in which nothing is happening. For example, after you serve discovery requests on the plaintiff, they usually have 30 to 45 days to respond. It is common for lawyers on both sides to agree to reasonable extensions of these deadlines. Also, when motions are filed and opposed, neither side can control how long it takes for the court to take action on a motion.
How do I know whether I should settle the case?
97.5% of civil cases settle before going to trial. There are a lot of reasons for this. One is that you or the other side may learn something in discovery that changes the strength of your claims. Another is that you see value in making an initial expenditure in a known amount rather than continuing to pay legal fees and risk owing the plaintiff money anyway.
Settlement means compromise. If you settle your case, you will be paying more than you want and the plaintiff will likely be accepting less than they wanted. Whether a settlement offer is reasonable is both a subjective and objective question.
Subjectively, you have to decide if it is something you are willing to consider. It may not be what you want or feel is fair, but it may get you what you need to move on.
Objectively, your lawyer should be looking at the amount you may have to pay after trial and their best analysis of your chances of defending the claims and not owing the plaintiff anything. For example, if your exposure at trial would be $50,000 and your attorney believes the plaintiff has a 50% chance of winning, they may tell you that a $25,000 settlement is reasonable. As a defendant, you will also want to factor in your own legal expenses.
Settlement means compromise. If you settle your case, you will be paying more than you want and the plaintiff will likely be accepting less than they wanted. Whether a settlement offer is reasonable is both a subjective and objective question.
Subjectively, you have to decide if it is something you are willing to consider. It may not be what you want or feel is fair, but it may get you what you need to move on.
Objectively, your lawyer should be looking at the amount you may have to pay after trial and their best analysis of your chances of defending the claims and not owing the plaintiff anything. For example, if your exposure at trial would be $50,000 and your attorney believes the plaintiff has a 50% chance of winning, they may tell you that a $25,000 settlement is reasonable. As a defendant, you will also want to factor in your own legal expenses.
Will a judge or jury decide my case?
Depending on the type of case, both parties usually have a right to a trial bu jury. Sometimes it makes more sense to bring your case before a judge instead of a jury. This is often called a "bench trial," because the trier of fact is the judge from the bench. Usually it is best practice to demand a jury trial in your initial pleading, and assess later whether it makes sense to waive that right.
How we can help
If you have questions about your civil case, we can help you assess the case and understand your options going forward. You can use the button below to schedule a call back from a member of our team, or give us a call at 781-784-2322.
