Do You Have a Case?

Generally, there are two ways to employ a lawyer: (1) through retainer with hourly fees; and (2) through a percentage of the judgment if you win (contingency fee). Generally, if you are suing someone for an accident they caused or an insurance company, the lawyer you hire will be fitting all the costs up front. This means you aren’t charged at all. They’ll have taken your case because they believe in your cause and hope to win. The risk is theirs.

A civil action is basically any legal action that is not a criminal in nature. Civil actions are between private individuals, companies, entities or estates. Examples of civil actions are claims for debt, for damages arising from motor vehicle accidents, insurance disputes, wrongful death actions, divorces, adoptions, matrimonial property actions, foreclosures, and administration of estates following a death. The persons involved in a civil action are known as the “parties.”

Have you been in an accident, has a family member been killed, is there an insurance company not willing to pay you what they owe, do you have a contract dispute…? The list can go on. Call and talk to the attorneys at McLuskey, McDonald & Hughes, P.A. Getting a lawyer on the phone immediately to answer your questions will help you feel better.

If the document you receive is a notice of suit, you are being sued and you should take quick action if you want to dispute the claim. Instructions on what to do next should come with your service papers but they can be confusing.

Do not ignore any of these documents. You may get a judgment or order made against you if you fail to reply to any of these documents within the required time and in the required form. You should seek legal advice if you receive any legal documents.

Your lawyer can advise you of the time limits which apply to your case. Note that different deadlines may apply as there are different courts in Florida.

The formal process by which a party named in a legal action receives a copy of the legal documents filed to start or to defend a legal action is called “service” or “being served”. There are specific rules in the Rules of Court and certain statutes which prescribe how court documents must be served. Sometimes, for example, proper service requires that you deliver documents to the other party personally; sometimes, the rules allow delivery to be made by mail. Failure to serve documents in the required manner may result in the service being found invalid.

To put this as generally as possible, there are three stages to most civil actions: the filing and serving of the pleadings, the discovery process, and the trial process. There are certain critical deadlines which apply to each of these stages.

Briefly, pleadings are the formal written claims (what you say they did OR what they say you did) and defenses used to start a lawsuit. The discovery process is the time period from which investigations are launched/completed, depositions (witness interviews) are taken, expert advice is sought and much more. A good lawyer’s advice through this process is critical in being successful with your case. The discovery process allows one party to obtain admissions from the other party and to learn more about the other party’s case to decide if it is worth going to trial, or if a settlement should be offered. If the parties cannot reach an agreement, the court will set the case for trial and the dispute will be decided by a jury (typically, although there are exceptions).

There are different elements to the discovery process. For example, each party can be required to disclose to the other party all documents and information relevant to the case. In addition, each party can be required to attend a deposition and be questioned under oath concerning the claim. The questions and answers are recorded, and then produced in written form, in a transcript, and they can be used by the opposite party at trial. Your lawyer will help you prepare for this procedure.

During this time, your lawyer can file motions concerning a wide range of topics. These permit your lawyer to advocate on your behalf (before the trial) and are all strategically designed to narrow the issues of your case. A good lawyer with a strong motion practice can often win your case before it goes to trial.

The trial process involves the preparation for trial, the trial itself, picking a jury (Vior Dire), arguing through objections, the verdict/judgment, the filing of the order. An Appeals process or other motions may follow.

Any appeal of a court order must be filed within a specified period of time or the right to appeal may be lost. Your lawyer will know these deadlines.

Normally, you do not need a lawyer to handle a claim in criminal court or small claims court. There, it can be argued that the procedures are simpler. (Although, you should always have a professional lawyer).

In most other courts the issues and procedures are typically more complicated. There are more rules and time limits. Failure to comply with these could mean the action will be dismissed, that it will go ahead in your absence, or worse, costs and attorney’s fees could be awarded against you.

There are rules about the time in which you must bring a claim against someone else. These deadlines are called limitation dates, and they apply to all civil actions. If you do not start your civil action within the required time, you may not be permitted to do so after that time has passed. Your lawyer can advise you about the limitation date that applies in your case.

Every court has a set of rules to guide its proceedings. It is your lawyer’s task to know these rules and to ensure that the parties comply with them.

The Rules of Court are regulations set out in Florida and Federal Statutes. In addition, each court and each Judge may do things a little differently. Your lawyer may have had certain experiences with your particular Judge which could help you and your claim.

The various general court rules were enacted to ensure that the process is fair, that each party gets proper notice about proceedings and a chance to respond to the claims, and that the proceedings cannot be delayed excessively.

An order that one party pay some, all, or none of the other party’s costs must be made properly. Some fees and costs can be awarded according to Florida Statute. Others, based upon the outcome of the trial. Other orders for costs are made only in special circumstances.

Winning a law suit or an order for costs does not always end the matter. Some orders do not require the co-operation of the other side; others, like those for payment of a sum or money or the transfer of property, do. If the losing party does not cooperate, you will have to start enforcement proceedings to collect on the judgment.

There are a variety of enforcement proceedings. They include: garnisheeing wages or bank accounts, seizing property owned by the other party/entity/company, registering the judgment against property, and contempt of court. Your lawyer can advise you of the most appropriate method in your case.

You must choose the proper court to deal with your specific claim. If an action is started in the wrong court, it will be invalid or you may incur fees by having it removed or dismissed. The choice of court will depend on the reason for the law suit and, sometimes, the amount of money involved.

Even where you intend to handle your own legal proceedings, it is recommended that you first talk with your lawyer. This step might help you better protect yourself from concerns about limitation dates or any complications that may arise in the law suit. Your lawyer is your advocate who will conduct matters with your best interests in mind.

• Any limitation dates that might affect your right to proceed with a civil action;
• The proper court and documents needed to start the action;
• Your legal position and any claims or defences that should or must be made;
• The time limits at each stage of the process;
• Any interim orders needed to protect your interests;
• The need for any expert evidence;
• Your chances of success or failure, and whether settlement should be accepted;
• Whether an appeal should be taken;
• Ways of enforcing your court order.

• Draft the pleadings;
• Draft, attend and argue hearings and motions
• Arrange for the proper filing and service of the documents on the other party;
• Take necessary steps to protect your position until a judgment is made;
• Conduct necessary searches and retain experts to assist your case;
• Help you to obtain documents and admissions from the opposing party and to prepare your documents and admissions for disclosure to the other side;
• Prepare you for questioning/depositions and testimony at trial;
• Conduct depositions of the other party;
• Pick a jury & present your evidence at trial;
• Draft court orders.