The Good, Bad and Ugly,
By Charles Kleinbrook, P.C., a Michigan professional corporation, © 2012, All Rights Reserved
If you’re in a lawsuit, or even considering a lawsuit, it will serve you well to thoroughly read and understand the following bird’s eye view of what’s to come. This summary paints with a broad brush, and each set of facts creates its own strategy and motivations that drive the order and outcome of the process. Keep in mind that: A. this summary condenses nearly an entire year in law school called the rules of civil procedure, B. it is this writer’s contention that lawsuits are NOT about ultimate fairness or righteousness, only due process and “legal” justice, and C. at some point many people put principle behind them and try to settle for less than they want. Given the potential stress load detailed in the laundry list below, the emotional cost must be weighed at all times as well as a sincere soul searching to weigh your long term best interest. Usually, the other side will use every option available to explore every possible facet and in doing so can inflict intense stress. So much so, that depending on your tolerance level, you might be willing to cut your losses without going to trial. Even if you prevail through a potentially arduous trial you may well find yourself dragged through an even more arduous appeal which can take years more. Courtrooms may well be the land of faulty planning, and probate courtrooms, the land of broken dreams. A healthy dose of skepticism should put the process in perspective and you ought to at least weigh all the options outside of a courtroom at all times. Each case has its own facts, law and reality, but here is a thumbnail.
Prologue: Due to the public nature of lawsuits, everything that is public about you may well be available to a judge or jury. Anything listed in any public place, like another courthouse, like Facebook or Linked-In, or like electronic bulletin boards or online chat rooms could be used against you. Wisdom in today’s day an age requires that you discuss this with your attorney. You should discuss whether you should suspend or limit your online use during the lawsuit.
1. Initial Pleadings
The pleadings, or the papers filed under strict procedural rules in Michigan, called the Michigan Court Rules, is where it starts. The injured party typically the “plaintiff” or in probate the “petitioner” files a complaint with the court. A complaint is the written document that starts the whole affair and alleges things against the other party, the “defendant” or in probate court the “respondent”. The complaint also describes what the plaintiff seeks to recover in the lawsuit. Once the complaint is filed and served upon the defendant, the defendant is required to respond to the allegations and provide defenses in an answer. There are all kinds or court rules about how the papers are to be served. The plaintiff then files a reply to the defenses contained in the answer. Then, the pleadings stage evolves into the areas listed below, and the initial pleadings may even be amended for good cause if further facts become known. A word to the wise, if you file a complaint, you must know up front that the other side could equally counter-sue, so use caution.
General Timeline: 3-6 months.
2. Summary Judgment Motions
Often after completion of the pleadings, and often before discovery phases, one party will feel such confidence in the facts that a trial is unnecessary. That party will ask the judge to decide the case under the limits prescribed in the Michigan Court Rules before trial. A summary judgment motion explains why the evidence alone should result in a judgment, and is asking for a judgment without a trial as if no facts are in dispute. If the judge grants the motion, judgment is entered and the case is over. Summary motions are granted or denied based on the facts of the case. If not granted, then the case proceeds to arbitration or trial.
General Timeline: Anytime.
3. Discovery
After the pleadings stage, the parties may engage in discovery in order to prepare for arbitration or trial. Discovery allows each party to learn about the other’s case, including what witnesses will be called to testify and have their sworn testimony before trial called a deposition. Each party can be asked what documents or other evidence exists. The discovery process helps ensure that there will be no surprises at trial. Each party can send written questions to the other side (interrogatories) and ask that the other party provide copies of relevant documents (requests for production). Witnesses can be subpoenaed for depositions and either party can issue subpoenas for relevant documents from people other than the opposing party. It is very important to emphasize that your personal life can be made very, very public. Once you file or once your testimony is involved, credibility and damages are always an issue. As such, you will very likely to be asked very personal questions.
Once the pleadings, discovery, and summary judgment motion phases are complete, the lawsuit is ready to go to mediation or trial.
General Timeline: 1-3 years.
4. Case Evaluation and Settlement Discussions
Case evaluation is similar to that of a trial. However, instead of a judge or jury deciding the value of a case, a panel of three local court-appointed attorneys put a dollar value on your case. Their average dollar amount is the award. If dissatisfied with the award, either party can file a rejection, which in turn frees the case to go to trial in front of a judge or jury. However, and this is a huge, however, refusal to accept the award has strict limits and penalties under certain circumstances. As such, be very, very careful on rejecting an award. Very few cases proceed beyond this point due to the onerous and often draconian penalties for rejection. So in all likelihood in Michigan, unless you have unlimited money to pay attorneys, [or in the alternative nothing to lose in a later bankruptcy] your case will end with a decision of 3 lawyers, humans all; or at least arguably human. The panel often seeks to target a dollar amount where each party can walk away from the table. The Michigan Supreme Court engaged this process to clear court dockets generally, not to award justice in every case. The Michigan Supreme Court wanted a mechanism to resolve disputes without a burden on already overflowing case dockets.
As to settlement discussions, you should always keep in mind the following: First, the client is always ultimately in charge of accepting or rejecting offers of settlement. This is not to say the lawyers cannot negotiate preliminary windows that open options for the client.
Second, while you might be within your rights to make a limited settlement offer under applicable rules, human psychology is always an element because every case involves human behavior. Let’s say you offer to settle your case for $10,000 in January, and it is a “limited” offer good only through January. It is rejected; then comes November. While it may be technically permitted to offer $20,000 in November, it will be nearly impossible, to the point of herculean, to get over the prior bar you set back in January, absent exceptional circumstances. So, a word to the wise: Your settlement offers should never go up, only down.
Lastly, attorneys may often paint a rosy picture when they file your case. They may offer reassuring statements about how the law is on your side. Later, after the course of discovery and threatening demands by the other side, the lawyer’s tenor changes. They may well be pressured by the judge to encourage you to settle for much less than what you or they originally thought. The swing of the pendulum may take huge swaths. So, be prepared for the emotional toll in this process. It is often nerve racking. While the material facts about your case may not change, the context or circumstantial nature of various facts may well interplay with each side’s posture and willingness to continue to trial.
General Timeline: Anytime but often 1-3 years after filing.
5. Trial
Trial can take place in front of a judge or jury. Generally, there are six phases of a jury trial: (1). jury selection; (2). opening statements; (3). testimony and evidence; (4). closing statements; (5). jury charge; and (6). verdict. In the case of a trial in front of a judge only (a bench trial), the procedure is the same except that there is no jury selection or jury charge.
In a jury trial, the first phase of the trial begins with jury selection. Attorneys for both parties ask the jurors questions to determine if they know any of the parties, attorneys, or witnesses involved in the case, or if they have had any experiences with or have strong feelings about certain issues which preclude them from being unbiased and impartial. Once the questioning is complete, each attorney can request that certain jurors be stricken from the jury pool “for cause” due to a disclosed bias or prejudice. Each party may then strike a set number of other jurors (usually around four) who they think would likely favor the other side.
After jury selection, opening statements are presented to the jury. The plaintiff’s opening statement should give the jurors a “roadmap” of the trial – to describe what the plaintiff intends to prove and how the attorney will prove it, outlining the facts of the case, and identifying the witnesses and important evidence. The defense can give an opening statement or defer the statement until after plaintiff presents testimony.
After opening statements, the parties present their testimony and evidence. The plaintiff goes first by calling witnesses and offering exhibits into evidence. The defense may cross–examine each witness. Next, the defense may call witnesses and introduce evidence to support its defenses. Thereafter, the plaintiff may present witnesses or evidence in rebuttal to the defense case.
Once all testimony is complete, the attorneys deliver closing arguments. During the closings, the attorneys argue why the facts and applicable law should lead the jury to decide in favor of their respective clients. The plaintiff goes first. After plaintiff’s closing argument, the defense presents its closing. Finally, after the defense closing, plaintiff’s attorney usually presents a brief rebuttal argument.
After closing arguments, the judge must give the jury charge. In the charge, the judge explains to the jury all of the law applicable to the case so that the jury can reach a proper verdict. The jury verdict itself marks the conclusion of the trial.
General Timeline: 2-4 years after filing.
6. Post Judgment Action
Once a judgment is entered and no appeal is taken, usually within 21 days, then the parties must comply with the judgment. Many times one party will not honor a court order and your attorney may need to enforce the judgment. It can be very frustrating to be in this situation because there may be difficulties in enforcing orders, especially if a defendant is uncollectible. To spend tens of thousands of dollars in attorney fees and costs is hardly worth it. So, ideally, one would want to properly evaluate any case before filing to be sure the debtor can truly pay.
General Timeline: 2-5 years after filing if no appeal.
Get it in writing! Be sure you have a written retainer agreement with your attorney that (1). details all the rights and obligations between you and the attorney, (2). defines the various charges, fees, costs, and how they are to be calculated, (3). defines when the representation ends, (4). my general recommendation on contingency fee arrangement is that the law firm hires experts and support personnel, not the client. On hourly fee agreements, my general recommendation is the reverse, and (5). read it, unhurried, with your attorney present before you sign.