Author’s Note: The article below is a chapter or excerpt from the book “Law, Lawyers and Your Case: A Dollars and Sense Examination” (2003, Graduate Group). Please also be sure to read the very important and limiting disclaimer at the end of this article. David Dixon Lentz, Author. It is being republished here because much if not most of it remains valid and true today. This article/blog appearing in www.reasonandbalance.com is subject to Copyright 2021 and 2003. David Dixon Lentz. All Rights Reserved.

COURT CASES: Understanding Civil Cases Part II.

The author, David D. Lentz, is an attorney who practices law in Richmond, Virginia. You can find out more about him at http://www.davidlentzlaw.com

This is the second part. With the third and final part to follow.

[This article is only for very generalized informational purposes and is not intended to provide and does not provide particularized legal advice to anyone in a particular case. In part, this is because this article may not cite current law in all jurisdictions. All readers must consult a licensed lawyer in his/her jurisdiction in order to obtain proper legal guidance.]

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The Defendant’s Duty to Respond in Lower Court.

In some states, especially in the Lower Courts, instead of requiring the defendant to file a responsive pleading such as an answer, applicable procedural rules require the defendant to appear in person at the court on a specified date which is sometimes called a “return date” (or a “docket call” date).

Usually, if the defendant does not appear on the return date, a default judgment will be entered against him. Thus, if a plaintiff has sued a defendant in small claims court for $4,000 and the defendant does not appear on the return date, the court may grant the plaintiff a judgment for this amount. Similarly, in a child custody case, if the defendant doesn’t appear on the return date the court can give the plaintiff what he wants (that is, custody of the child).

Many times the case is not tried on the return date. Instead, on the return date, the court is only interested in determining whether the defendant is going to contest the suit. If the defendant appears and indicates that he will contest the suit, the court, on the return date, will schedule the case for trial on a future date. On the return date, the court may also ask the parties if they want to exchange pleadings in the case. If they do, then the parties must, within the time specified by the court, exchange pleadings setting forth the nature of their claims and defenses against one another and file them with the court. These pleadings usually act much the same as the complaint and answer described in the sections above dealing with Courts of Record.

Alternatively, instead of appearing in person on the return date, applicable procedures may require the defendant to file a written response in a timely manner with the clerk of the Lower Court. This is much like the procedure in the Courts of Record and it may mean that the defendant will be required to file an answer. Naturally, the special pleas and objections relating to failure to state a claim, jurisdiction, service of process and venue are also available to the defendant in the Lower Courts. (See the discussion in the preceding section.)

In any event, it should be strongly emphasized that clients should seek the advice of a lawyer in order to determine the proper means of responding to a lawsuit in a Lower Court. Moreover, clients are best served by assuming that they must appear and be ready to put on all of their evidence on any court date (even if it’s the first court date) unless they learn otherwise from a lawyer; otherwise they risk being unprepared and having adverse judgments rendered against them.

All Pleadings Must Be Served on All Other Parties.

After service of the original complaint, any time one party or another is required to file a pleading with the court a copy of the pleading must also be given to all parties to the lawsuit. This is true in both the Courts of Record and in the Lower Courts. Thus copies of all pleadings, motions and objection must be mailed or hand-delivered to the opposing party or, if he’s represented, to his lawyer. Moreover, a certificate stating that this has been done must usually be attached to all pleadings, written motions and objections.

The Defendant’s Counterclaims, Cross-Claims and Third-Party Practice.

In his answer, the defendant may not only deny any liability to the plaintiff, but he

may also assert any claim for monetary damages or other relief that he has against the plaintiff. In other words, many times not only does the plaintiff have a claim for monetary damages against the defendant, but the defendant may also have a claim for damages against the plaintiff. Moreover, most of the time the defendant desires to have his claim against the plaintiff tried at the same time as the plaintiff’s claim against the defendant. Claims for damages or other relief that are sought by the defendant against the plaintiff are referred to as “counterclaims” if the defendant files a pleading labeled as such. Breach of contract cases and business disputes often involve counterclaims by defendants against plaintiffs. Any case, however, can involve a counterclaim. For example, a defendant in a custody case will also typically ask for custody of the child in question. By the same token, if two cars collide and both parties are injured, but fault is unclear, it would be possible for the defendant (after he has been served with the plaintiff’s complaint) to sue the plaintiff for the defendant’s personal injuries. Moreover, if the defendant does this in a counterclaim, his counterclaim will be heard and considered at the same time as the claims set forth the plaintiff’s original complaint.

In addition to the defendant’s ability to file counterclaims, if the plaintiff names two or more defendants in his original complaint, each of the defendants may, within the context of the plaintiff’s original suit, sue their co-defendants for all or a portion of the damages that the plaintiff seeks. This is called “cross-claiming”. Moreover, defendants may elect to bring total strangers into the lawsuit and file lawsuits against third parties who they believe are liable or responsible for all or part of the damages that may be owed to the plaintiff. This is called “impleading” or third-party practice and the person sued by the defendant is called a “third-party defendant”. If the defendant sues such a third person, he must serve that person with process so that the court has jurisdiction over him. In any event, all of the foregoing counterclaims, cross-claims and third-party claims are heard and tried along with the plaintiff’s original complaint.

Before moving to the next section, it should be noted that some courts (such as the federal courts) have rules relating to “compulsory” counterclaims. Where the compulsory counterclaim rules apply, a defendant who has a “compulsory” counterclaim must file that counterclaim in the plaintiff’s suit. If the defendant fails to do so he will be forever barred from thereafter bringing it. In other words, a defendant failing to raise a compulsory counterclaim in the plaintiff’s original suit will not be allowed to sue the plaintiff in a later proceeding. Usually, however, the compulsory counterclaim rules apply only when the defendant’s potential counterclaim arises out of the same event or the same transaction and occurrence as the plaintiff’s claim. Thus, defendants having possible counterclaims against plaintiffs are well advised in most instances to immediately file those claims after they have been served with process in the plaintiff’s case.

Responsive Pleadings to Counterclaims and in Multiparty Litigation.

It should also be noted that if counterclaims, cross-claims or third-party claims are filed by a defendant, the party having a claim filed against him must, in a timely manner, file a responsive pleading or an answer. Thus, if a defendant files a counterclaim against a plaintiff in a case demanding that the plaintiff pay the defendant money damages (or that the plaintiff be ordered to do something else), then the plaintiff must file a responsive pleading or a “reply” to the defendant’s counterclaim. Similarly, if one defendant is sued by another defendant, then the defendant who is being sued must also file an answer to his co-defendant’s cross-claim. Moreover any third-party who is sued by a defendant must also respond in a timely manner. In short, anyone who is being sued or counter-sued must file a responsive pleading in a timely manner in the case or suffer the possibility of a default judgment being entered against him.

Discovery.

After a case is filed and the defendant has responded, the parties will often use discovery to learn facts about the case. They can learn these facts from each other and from third party witnesses, experts and other people who hold documents or other evidence. There are several discovery procedures that can be used for this purpose. They typically include interrogatories, requests for admissions, requests for production of documents, requests to inspect, depositions and requests for independent medical examinations. All of these discovery procedures, which are discussed below, occur prior to trial, during the trial preparation phase of the case. As has been previously noted, these discovery devices are normally available only in Courts of Record. Significant pretrial discovery is usually not available in the Lower Courts. Clients should, however, question their lawyers about the availability of any of the following discovery devices in any case, even if it is to be tried in a Lower Court.

Discovery tends to lengthen the time it takes to prepare cases for trial. Discovery can also add to the costs and expenses that a client will incur in having his legal matter resolved. Nevertheless, these discovery procedures also afford the parties a better opportunity to prepare for trial. They also let both parties know what the other side intends to into introduce into evidence at trial. This greatly reduces the chances of surprise.

The Scope of Discovery.

It is very important to note that the questions that the parties can ask each other during discovery are usually broader than can be asked at trial itself. This is also true of questions asked to non-party witnesses. Moreover, the parties can request documents that may not be admissible at trial. Generally, any question or request for a document that is reasonably calculated to lead to the discovery of other admissible evidence is permitted. Thus, a party cannot typically object to a question or a request for production of a document on the basis that the question or request seeks irrelevant information or an irrelevant document. The request or question must only be a reasonably calculated to lead to the discovery of admissible evidence in order for it to be deemed proper.

It should also be noted, however, that lawyers can object to the other party’s discovery requests for various reasons, such as the request seeks information protected by the attorney-client privilege; that the request seeks the attorney’s “work product”, that the request is not reasonably calculated to lead to the discovery of admissible evidence or for a limited number of other reasons. If the lawyers cannot resolve their disagreements about discovery, they may have to schedule a special court hearing to resolve any disputes that arise during discovery. This can be fairly costly, especially to clients who are paying their legal fees on an hourly basis. If one side is found by the court to have arbitrarily or in bad faith failed to comply with the other party’s discovery requests, the court can order that party to pay the other party’s attorney’s fees. It can also impose other sanctions and penalties.

Sanctions and Penalties for Failure to Comply With Discovery.

A party who has been served by the other party with any discovery requests must usually respond within a certain time period (typically 20, 21 or 30 days), unless an extension is granted by the court. If a party upon whom a discovery request has been served does not properly respond within the time required, the court may impose penalties or “sanctions” on that party. The sanctions that the court can order against an infringing party include requiring that party to pay the other party’s attorneys fees. The court can also prohibit the infringing party from introducing certain important evidence at trial or it can take certain allegations that are unfavorable to the infringing party as being admitted (which means that the court will not hear evidence on the admitted issues but will merely assume that the admitted unfavorable facts are correct). In short, these sanctions can be devastating to the infringing party’s case and may cause him to lose it. Therefore, clients are well advised to take discovery matters seriously and to promptly respond to all questions and requests for information promulgated during discovery.

Discovery Devices and Procedures.

It is important to note that, for purposes of the following discovery discussion, the term “party” means the plaintiff, the defendant or any third-party defendant in a lawsuit. It does not include non-party witnesses or strangers to the suit.

Interrogatories.

Interrogatories are written questions that one party asks to another party in a lawsuit. Interrogatories cannot be submitted to independent witnesses who are not parties to the lawsuit. Interrogatories may ask, for example, who the opposing party’s witnesses are and where certain evidence is located. The questions may also ask for specific information regarding the other party’s claims or defenses. This is done before trial. Although no court reporter or court official is present when interrogatories are answered, all interrogatories must be answered in writing and under oath by the party upon whom the interrogatories are served. For this reason, clients, in answering interrogatories, should be careful to review their answers with their lawyer before putting them in final form. They should also review them again immediately prior to trial. Many clients have learned the hard way that if there are differences between the answers that they have submitted in their answers to interrogatories and the answers that they give at trial, that the other side will use these differences to try to show that the client in question is not a truthful person.

As with all discovery, clients should be careful to answer all questions fully before they are returned to the opposing counsel. Mistakes or a failure to answer questions fully can seriously hamper the chances for obtaining a successful result in a case. For example, if a party, does not identify his favorable witnesses in response to an interrogatory requesting that he do so, he may not be permitted to call them to testify on his behalf at trial.

Requests for Admissions.

Requests for admission are written requests submitted by one party to another party to a lawsuit wherein one party requests the other party to admit to the truthfulness of certain facts. Any such request that is admitted by the other party permits the judge or the jury to assume, at trial, that the fact admitted is true. This is done to shorten the trial, reduce the number of witnesses and narrow the issues. It is also sometimes aggressively used to shift the cost of establishing certain facts to the other party. For example, if one party asks another party to admit a fact, and the other side denies it, the court may assess the denying party the attorney’s fees and costs that were incurred by the requesting party if the requesting party, at trial, is able to prove the existence of the fact that he had originally asked to be admitted. If requests for admissions are not admitted or denied in a timely manner (usually within 20, 21 or 30 days), the admissions are taken by the court as admitted for trial purposes without any further proof on the issue. Therefore, it is crucial to deny, in a timely manner, requests for admissions that allege unfavorable facts.

Requests for Production of Documents and Things and to Inspect.

Requests for production of documents and things and requests for permission to inspect allow one party to see, copy or inspect the other party’s documents and evidence. It is extremely important that clients produce all records and documents requested by the adversary unless the client’s lawyer makes the appropriate request for a protective order. Clients who do not disclose the existence of records run the risk of having penalties or sanctions imposed against them. They may even be guilty of perjury in some instances. In this regard, a client who fails to produce records in response to a request for production of documents can be prohibited from introducing these records at trial even if they are favorable to his case. This could mean the difference between victory and defeat. In short, never fail to notify your lawyer of the existence of any records or documents that are subject to a request for production of documents.

Before leaving this section, it should be noted that clients should never send documents directly to the other party. They should be sent to the lawyer first so that he can review them and make a determination as to whether they can be protected under the attorney-client, work-product or some other evidentiary privilege.

Depositions.

Unlike interrogatories (which are written questions that must be answered in writing) when a deposition is conducted, it is usually conducted “live” and usually in person. Depositions are conducted orally. (Although some courts do have a procedure for written depositions, they are rarely used.) In a deposition, a witness is placed under oath, and asked questions about the case. The witness must then answer the questions posed to him under penalty of perjury. The lawyers for both parties and a court reporter are present. A verbatim record is thus kept of the deposition. Neither the judge nor the jury, however, is present at a deposition.

Unlike interrogatories and requests for admissions which can only be asked to another party (such as a plaintiff or a defendant), depositions can be conducted on any witness regardless of whether he is a party to the lawsuit or not. In this sense, depositions allow the parties to broaden their investigation about the basic facts of the case. Thus, for example, depositions can be used to ask non-party witnesses about the location and existence of other independent witnesses. They can also be used to discover the location of any other relevant document or evidence.

Depositions are an effective discovery device because the lawyer can assess how effective a party or a person is as a witness. In addition, because the lawyer is present and is able to get immediate answers to his questions, they permit the lawyer to ask follow-up questions and are, therefore, a more flexible form of discovery than most other discovery devices.

Depositions are also used by lawyers to pin down the other party for purposes of trial. For example, if a party or a witness testifies differently at trial than he did during depositions, a lawyer can then use the inconsistency to show that the witness cannot be trusted. This is called impeachment. A client should always remember that mistakes in statements of fact given at a deposition will be used to impeach his credibility at trial. Cases can be lost because of mistakes clients make at depositions. For this reason, it is usually very wise for any party to a lawsuit to study and prepare for his deposition before the deposition is conducted.

Normally, depositions do not take the place of oral testimony at trial. The parties and witnesses still have to appear and testify at trial. There are exceptions however. Sometimes depositions are taken de bene esse. This means that the deposition itself will be read to the judge or the jury at trial. De bene esse depositions are frequently used in personal injury cases to depose doctors so they do not have to appear at court and have to wait to testify. This keeps the cost of expert witness fees down.

For all of the advantages of depositions as a fact-finding device, one disadvantage is cost. Depositions can be costly because the parties have to pay the court reporter. Court reporters typically charge both for appearing at the deposition and for transcribing the testimony taken at the deposition. Moreover, depositions normally consume a lot of the lawyer’s time. In this regard, they can have the effect of increasing legal fees for clients who pay by the hour.

Must Mandatory Unrequested Disclosures Be Made? The Federal Court Example.

Under Rule 26 of the Federal Rules of Civil Procedure, the parties have a mandatory duty, when the case will be tried in a federal court, to disclose certain information to one another even though the opposing party has not requested that they do so. In other words, a plaintiff in a federal case must disclose the required information even if the defendant doesn’t request it. Similarly, the defendant must disclose the required information even though the plaintiff hasn’t requested it. Thus, all parties must automatically disclose the required information within a certain period of time after a pretrial conference. In this regard, pretrial conferences are held quite soon after the case is filed and therefore, all Rule 26 discovery disclosures must be made early in the case. If a party fails to comply with Rule 26 all or some of the sanctions set forth in the preceding sections can be imposed.

In this regard, Rule 26 generally requires the parties to disclose to each other the names and addresses of any person who is likely to have knowledge of discoverable matters. It also requires that the parties provide each other with a copy or a description of all documents likely to be used to support any claim or defense that they have in the case. Plaintiffs also must provide a computation of their damages and any documents necessary to support their damages claim. Moreover, all parties must disclose the identity of any expert witnesses that they intend to use and they must state the nature of any expert opinions that will be rendered at trial. Finally, in addition to the disclosure requirements of Rule 26, federal courts permit the parties to utilize the other discovery devices set forth in the preceding sections.

Naturally, unless a state has a rule that is the equivalent of Federal Rule 26, the automatic disclosure requirements set forth above would not apply to a case in state court.

Subpoenas and Summonses.

Parties are able to have subpoenas (sometimes also known as summonses) issued for witnesses in both the Lower Courts and in the Courts of Record. Subpoenas and summonses generally have the legal effect of a court order, even though, in some jurisdictions, clerks of court or attorneys can issue them. Subpoenas and summonses command a person to appear at trial, at a deposition or at some other proceeding. Usually this is for the purpose of testifying as a witness (but it can also be for other reasons that are set forth in the subpoena or the summons). Failure to comply with a subpoena or a summons could subject the person subpoenaed to contempt or other sanctions if he fails to appear at the place and time specified. Subpoenas and summonses can also be issued, however, in connection with discovery depositions. In other words, a witness can be compelled to attend a discovery deposition if he is first subpoenaed.

It is very important to note that many courts have time deadlines for the issuance of subpoenas, summons and subpoenas duces tecum (which are discussed below). Thus, if a subpoena or summons is not issued and served within the required time before trial, a witness may not be required to appear. The significance of this, of course, is that vital testimony or evidence in a case may not be heard or considered by the court when it renders a judgment if the subpoena or summons is not issued in a timely fashion.

Subpoena Duces Tecum.

A subpoena duces tecum, which again is available in both the Lowers Courts and in the Courts of Record, allows a party to a lawsuit to subpoena documents and other tangible items held by anyone, including independent persons and witnesses. Sometimes the subpoena commands the holder of the records to deposit those records with the court for trial. At other times, however, those documents must be sent or delivered elsewhere, such as to the requesting attorney’s place of business as part of pretrial discovery. Again the subpoena duces tecum has the effect of a court order and must be obeyed, otherwise the non-complying party can be held in contempt of court.

Objections to Discovery and Subpoenas.

A person (even a nonparty) who has been served with a subpoena or subpoena duces tecum must obey it. If he doesn’t he runs the risk of being held in contempt of court. If he objects to the subpoena or the documents requested by a subpoena duces tecum, he generally must do so, in writing, before the date on which he is scheduled to appear or to deliver the documents. A court hearing must then be held to determine whether the subpoena must be obeyed.

Similarly, parties and nonparties objecting to any interrogatory, request for production, request for admission or to any question asked during any deposition must generally express their objection, and the reasons for it, in writing, before the time for responding to same has expired. It is not sufficient for the objecting person to merely refuse to respond. If an objection is made to a question asked during a deposition it must usually be done at the deposition on the record with a court reporter present. If the lawyers on the opposing sides are not able to resolve the objection, then a hearing must again be held by the court to determine whether the information sought is proper. Sometimes deposition objections are resolved by a telephone conference with the judge during the deposition itself.

Independent Medical Examination.

In cases where a party’s health, physical or mental condition is at issue, the opposing party may, for good cause shown, obtain a court order requiring that person to submit to a physical or to a psychological examination by an independent and duly licensed medical professional, such as a doctor or a psychiatrist. The medical professional conducting the examination is not, under such circumstances, deemed to be a treating physician or a treating psychiatrist of the person being examined. The medical professional conducting the examination must, after the examination, file a report with the court containing the results of that examination. The party that requested the examination must typically pay the medical professional’s fees. The report is not necessarily read into evidence, unless the person being examined desires this to be done. Nothing prohibits the party requesting the examination, however, from calling the medical professional to testify at trial. This procedure is often used by defense lawyers in personal injury cases, especially if the plaintiff’s injuries are serious or if there is some question about the cause of the injuries. This procedure is usually employed only in the Courts of Record.

Pretrial Orders Regarding Discovery: Local Rules of Court.

Many Courts of Record, as standard procedure, issue pretrial orders that address a myriad of issues. These orders typically set forth time deadlines for the completion of discovery. This means that in addition to the normal time deadlines for responding to discovery, the parties must also comply with the deadlines set forth in the pretrial order. Thus, not only must lawyers and clients be aware of the normal time deadlines to respond to discovery, they must also be fully aware of any discovery “cut-off” dates. Sometimes these dates require that discovery requests and responses be completed by a certain date notwithstanding the regular deadline for filing responses. For example, it is not unusual for courts to require each side to list and designate their expert witnesses by a certain date, which many times is 30, 60 or even 90 days prior to trial. A party failing to meet this deadline may not be allowed to have his expert testify. Moreover, parties who ask interrogatories or request admissions or the production of documents after a date that would allow the other party sufficient time to respond thereto before a cut-off date may not be able to obtain valuable information in order to prepare for trial.

In addition, the same types of deadlines may be set forth in local rules of court. The “local rules” are the rules promulgated by city, county or other local courts. They are separate from the rules promulgated for all courts within the state. Federal courts also have local rules for their particular federal districts that are separate from the regular or nationwide federal rules. Many times these local rules also impose deadlines that differ from district to district. All of this can, of course, make managing a lawyer’s calendar quite complex and can create significant traps for the unwary.

Strict Adherence to Deadlines Required.

In most jurisdictions, the judges and clerks complain about being overloaded with cases. This is especially true in urban areas and larger suburban counties. In order to effectively handle large caseloads, judges and clerks must have procedures in place that permit them to handle cases as quickly and efficiently as possible. Much of that efficiency is lost, however, if lawyers and their clients do not strictly comply with deadlines that assist in the orderly processing of cases. State laws, rules promulgated by various state and federal courts as well as local rules of procedure set forth a multitude of deadlines that are intended to permit courts to handle as many cases as possible in an efficient yet fair manner. These deadlines, when taken together, can become fairly burdensome on litigants and can create quite a bit of pressure. Courts prefer to dispose of cases one way or the other so that they do not languish on the docket and consume a lot of administrative time. Increasingly, courts, especially the federal courts, insist that parties keep their cases moving towards trial. Clients make the mistake, therefore, of assuming that lawyers can merely agree to delay the case and that courts will not object. This is not always true, especially if a trial date has been set, and courts are less tolerant of requests for continuances and for extensions of time when it comes to procedural matters than they once were. This can have a significant effect, one way or another, on the outcome of a case.

Special Points to Consider Regarding Multiparty Litigation.

At this point, it is perhaps helpful to briefly consider situations where there is more than one defendant or where cross-claims, counterclaims and/or third party claims have been filed. In these situations it must be remembered that copies of all motions, pleadings, discovery requests and responses must be provided to every other party (or, more properly their lawyers). This greatly increases paperwork and the time requirements of a case. It also adds complexity to the internal file management of the firm. Moreover, multiparty litigation adds considerably to scheduling difficulties because getting multiple parties to agree on the scheduling of hearings for motions, depositions and other matters can be a complicated and time-consuming task. The simple act of getting continuances or rescheduling depositions under such circumstances can be extremely difficult. Naturally, all of this has the potential of greatly increasing the cost of litigation. It also makes it more likely that clients will have to be flexible in their own scheduling.

Summary Judgment.

If the pleadings and certain discovery responses of the parties indicate that no material facts are in dispute, a court can grant summary judgment in favor of the party who, as a matter of law, should prevail in the case. The court can do this without conducting a trial. In considering a motion for summary judgment, the courts consider the pleadings and the discovery responses of the parties in a light most favorable to the party against whom summary judgment is sought. Moreover, in considering a motion for summary judgment, courts do not consider disputed facts if those facts are irrelevant to the determination who should win or lose given the legal theories that are set forth by the parties in their pleadings. If, on the other hand, the pleadings and the responses of the parties to discovery requests clearly establish what all of the undisputed material facts are and those facts indicate that one party, as a matter of law, should win, then the court may grant summary judgment to that party without requiring a full trial.

For example, if a plaintiff sues the defendant for failure to pay a promissory note and if the defendant admits during the course of discovery that he signed the note and that he failed to pay it according to its terms then a court will probably grant the plaintiff’s motion for summary judgment on the outstanding balance of the note. It would not matter in such a case that the only disputed fact was whether the plaintiff executed the note on January 25^th or January 26^th. (This assumes that there is no statute of limitations question involved.) Similarly, if the plaintiff, during the course of discovery, admits that he was pointing a loaded gun at the defendant’s head when the defendant signed the note, the defendant can obtain a summary judgment dismissing the plaintiff’s case. This is because the undisputed evidence would probably prove that the defendant was under duress when he signed the note. Again, however, it would be irrelevant if the only point of contention was whether the gun was a shotgun or a pistol.

Obtaining summary judgment, however, is often difficult because the party desiring summary judgment has to show that there are no material facts that are in dispute. This is usually very difficult to do because, if the pleadings and discovery responses indicate that there is conflicting evidence regarding any material fact, then that fact is in dispute and summary judgment cannot be granted. Thus, in the above example, if the pleadings and the discovery responses indicate that the plaintiff and the defendant will introduce conflicting evidence as to whether a gun (any gun) was pointed to the defendants head when he signed the note then there is a genuine dispute regarding a material fact and summary judgment will not be granted.

It should be noted that, in some jurisdictions, discovery depositions cannot be used to establish that there are no material facts in dispute. Thus, in some jurisdictions, discovery depositions cannot be used as a basis to establish the grounds for obtaining summary judgment. Other discovery devices can, however, normally be used to obtain summary judgment, especially responses to requests for admissions.

In order to obtain summary judgment a party must request it, usually by written motion. A hearing is then held. If a motion for summary judgment is denied then the court will conduct a full trial on the merits of the case.

The Rules of Evidence.

A discussion of the rules of evidence is beyond the scope of this book. Suffice it to say that the only evidence that a court will consider in rendering a judgment is the admissible evidence. Collecting and presenting admissible evidence can be time-consuming and therefore costly, particularly if a lot of witnesses or documents are involved. This is also true if the witnesses or documents are widely dispersed in different locations or states. In fact, if the admissible evidence is too costly to collect and present to a court it can affect the feasibility of instituting or defending a case. Moreover, in some instances, admissible evidence simply cannot be found or it has perished. For example, if there is only one witness to an event and he either dies or can’t be found then the party who would rely on that witness at trial may be out of luck.

There are two rules of evidence that are worth briefly mentioning because they affect the time and cost that will be involved in collecting admissible evidence. The first is the rule against hearsay testimony. It applies in both civil and criminal cases. Under the hearsay rule, only witnesses who were actually present and saw the events to which they will testify can give admissible testimony regarding those events. Witnesses cannot generally testify about what they heard other people say about an incident if they did not see it themselves. Moreover, even written documents and letters can constitute inadmissible hearsay under certain circumstances.

There, of course, several exceptions to the hearsay rule. For example, the friend of a defendant who did not see the accident (which is the subject of the plaintiff’s suit) can testify that the defendant admitted to him in a separate conversation that he (the defendant) knew that the brakes on his car were faulty before the accident. This is called an admission. Moreover, a written contract that is the subject of a lawsuit is also admissible under an exception to the hearsay rule. The point, however, is that a lawyer may have to search for additional witnesses if the only witnesses he has will give hearsay testimony. Thus, the hearsay rule affects the search for admissible evidence. Therefore, it can affect the cost and feasibility of a case.

Another rule that affects the cost of putting on evidence is the rule that prohibits opinion testimony by witnesses who are not experts on the subject on which they will testify. While nonexperts can give opinion testimony about some matters, expert testimony is required on many subjects in order for one party or the other to prevail in a lawsuit. Naturally, this is particularly true in medical matters and in any situation where there is a question about whether a person in any profession has adequately performed his duties when he rendered a service. Many times expert testimony is also required where there is an alleged defect in any product, equipment or mechanical device.

Expert Witnesses.

As noted, it may be necessary for one party or the other to call upon an expert witness in order to prove his case. For example, it is unlikely that a plaintiff can win a medical malpractice case unless he can call a doctor as an expert witness to testify as to what the acceptable medical procedures in a community are and whether the defendant violated those procedures. In the vast majority of situations a layperson simply isn’t qualified to render an opinion as to whether a doctor violated a standard of care for doctors.

In other cases, dentists, psychologists, chiropractors, physical therapists, engineers, physicists, chemists, architects, economists, accountants and other people, including those without advanced college degrees, may also be called as expert witnesses provided that they are shown to have sufficient expertise in the subject on which they will testify. In this regard, expertise can be demonstrated through a witness’s education, training or practical experience as long as the court is confident that the witness is an expert capable of rendering an opinion on a subject that is relevant to the case.

The list of possible uses of experts is endless. If, however, a lawyer deems it necessary to retain an expert in a case there are at least two immediate consequences. The first consequence is that the costs of the litigation will increase. This is due to the fact that the expert must be paid and the client is usually ethically responsible for paying him. The second consequence, especially in cases in Courts of Record, is that it will generally lengthen the time it takes to get the case to trial. There are a myriad of reasons for this including the fact that the lawyer has to hunt down and find someone who is willing to be an expert. The lawyer then has to reach an agreement with the expert as to how much the expert is going to get paid. Finding an expert is not always easy. For example, sometimes doctors are not willing to testify against other doctors. The difficulty in finding experts is not, however, limited to medical malpractice cases.

War Story: Charla retained an attorney, Rufus, to handle her case. Charla had a nasty accident involving a multi-speed bicycle that she purchased from a local bicycle store. Charla brought the bike home and took it out for a test ride. During the ride the chain derailed. As a result, Charla lost control, fell, crushed her skull, broke her neck and suffered other serious and permanent injuries. Rufus thought the case was worth millions of dollars, but he needed to find a bicycle mechanic and a design expert to testify that the bike had not been properly assembled or prepared for delivery to Charla. This seemed like it would be an easy task.

After Rufus took the case, he made numerous telephone calls to find an expert who would be willing to testify. Rufus also searched the Internet, lawyer trade publications and various other sources. Despite his efforts, Rufus could not find anyone who was both willing and qualified to testify in the case except individuals who were located hundreds of miles away. Realizing that this would greatly increase his expert witness fees, Rufus continued to look in his own state for an expert.

Finally, after a year of looking, Rufus gave up and hired an expert from a state over 500 miles away. The expert charged Rufus $8,000 for his services, $4,000 of which was payable in advance.

One aspect of the cost of expert witnesses that is often overlooked involves situations where the opposing side has hired an expert to testify at trial. Under these circumstances, clients have to decide whether to take the deposition of the opposing expert prior to trial so that the attorney knows what the opposing expert will say on the witness stand. If an election is made to depose the opposing side’s expert, the fee charged by the expert for the deposition is borne by the party who requested the deposition not by the party who originally hired the expert to testify on his behalf at trial. Again, this can be costly. Thus, in a case where both sides hire an expert a client may find himself not only paying his own expert, but also of paying for the cost of the opposing expert if he wants to depose that expert prior to trial.

(Part III will conclude this article next week.)

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DISCLAIMER

The article above is an excerpt from the book “Law, Lawyers and Your Case: A Dollars and Sense Examination.” (LLYC) Published by the Graduate Group in 2003. The publisher is now out of business and the book is now out of print.

The article above is to provide the reader with only a very general legal framework or reference point—a mere “starting point” to permit the reader to engage in further analysis. It is not the “final word” so to speak and is not designed to give anyone legal advice. As such, the foregoing article MAY NOT be relied upon by anyone to resolve his/her/its legal matter. Readers must consult their own lawyer and/or take responsibility for doing their own independent legal research/representation beyond merely reviewing this article.

Please keep in mind that laws do change over time and that laws differ amongst the various states, territories, nations and locations. So the rules and laws stated herein may not apply to the reader.

Any similarities in names, descriptions or accounts of persons, entities or events is purely accidental and all person/characters, entities and events herein are fictional and not intended to depict or describe any actual person, event or circumstance.

Despite the passing of many years most of this book is still relevant today. It is still helps very useful in terms of explaining the how legal problems get handled, the attorney-client relationship, trial and testifying and very importantly the general manner in which the legal system and the courts operate. Important concepts like discovery, summary judgment and a host of other terms are explained and defined. Civil, criminal, family law, personal injury and a host of other types of cases are discussed in remarkable detail.

If you live in Virginia, in the Commonwealth’s (that is, the state’s) court system, the Lower Courts are the General District Court and/or the Juvenile and Domestic Relations District Court. The Circuit Court is the Court of Record. The Virginia Supreme Court and the Virginia Court of Appeals are appellate courts. The United States District Court in the federal system is a Court of Record and the U.S. Fourth Circuit Court of Appeals (much like the United States Supreme Court) is an appellate Court.

Dollar amounts for costs, expenses, attorney’s fees, damages etc etc are probably very different because this book was published in 2003 and costs and dollar figures can vary widely depending on the location of the legal matter. This naturally would also include changes and new jurisdictional dollar limits for most cases before any given court.

There have been extensive changes to the Bankruptcy Code since LLYC was first published. As such, any references to bankruptcy rules, laws and/or legal requirements could be out of date and/or incorrect.

Since the LLYC was written there have been changes in the way third party costs and expenses (such as for experts and court reporters etc) may be funded and/or paid for—often making it somewhat easier for the client and his/her lawyer to carry a plaintiff’s personal injury/product’s liability case.

If a client has been damaged or lost money because of the ethical violations of his/her lawyer (for example, if the lawyer has stolen or misappropriated funds from the client or the client’s escrow account) many state bar associations have established separate trust funds to reimburse clients for the wrongs of their lawyers.

With regard to “property law” matters, this book has been written largely from the perspective of someone living in a state with English “common law” origins (which is most of the United States). However, folks who live in “community property” or “civil law” jurisdictions my have different rules regarding discussions pertaining to divorce property settlements, real estate law, inheritance and/or other property law matters.