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| Copyright ©2006 by Deming, Parker, Hoffman, Green, Campbell & Daly, L.L.C. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include the above copyright notice. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. |
Green, Campbell & Daly, L.L.C. |
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| Civil Litigation |
PLAINTIFF: The person or entity filing the lawsuit. DEFENDANT: The person or entity being sued. . |
ATTORNEY: Often, attorneys only represent Plaintiffs or Defendants. For
example, in personal injury cases, e.g., a car accident case, the Plaintiff's
attorney always represents Plaintiffs; the defense attorney, who is hired by the
Defendant's insurance company, only represents Defendants who are insured by
that particular insurance company.
JUDGE: The judge is charged with the responsibility of ensuring that the parties
receive a fair trial. He/she decides if the questions asked of the witnesses are
appropriate and if the documents offered are admissible under our rules of
evidence. The judge also instructs the jury as to the applicable law, so it can
apply the law to the evidence it has heard and seen. If neither party requests a
jury trial, the judge will also decide who wins.
JURY: The jury serves as the fact-finder. The jurors decide the credibility of the
witnesses and the weight to be given to any documents introduced as evidence.
They apply the applicable law to the evidence to reach their verdict. The jury also
decides the amount of any damages to be awarded.
THE COURTS:
THE COMPLAINT: The Plaintiff, or his/her attorney files the "Complaint"
(statement of grievances and request for relief, usually a money judgment). The
Complaint must usually be filed in the county of the Defendant's residence. The
Complaint has to state a "cause of action" (claim) against the Defendant and
recite the facts which support that claim.
THE ANSWER: The defendant, or his/her attorney has 30 days from the date the
Defendant was served with the Complaint (usually by the Sheriff), to file the
Answer. The Answer should deny all allegations the Defendant believes are
untrue. The Defendant may also file a "Counterclaim" against the Plaintiff, if
warranted.
DISCOVERY: The first 6 months of the case in the State or Superior Courts is
dedicated to the discovery of the evidence available to the parties. As noted
previously, the parties may send interrogatories, requests for the production of
documents and take depositions of the other party, and of witnesses. The
purpose of discovery is to promote the possibility of settlement (if the parties
know the evidence to be offered by the other side, the parties can make better
decisions about their likelihood of success at a trial) and to prevent surprise at
trial.
ADR (ALTERNATIVE DISPUTE RESOLUTION): Because so many suits are
being filed, other methods of dispute resolution have become common. Many
judges require the parties to submit to some form of alternative dispute resolution
before being allowed to go to trial. There are three principal methods of dispute
resolution:
THE TRIAL: The first part of the trial, provided there will be a jury, is "striking" the
jury. The judge will ask questions of the potential jurors to determine their fitness
for service. The attorneys will then ask questions designed to learn of their likely
biases against, or sympathy towards their respective clients. For example, an
insurance defense attorney in a personal injury case, will strike from the jury
anyone who has had a similar injury to that of the Plaintiff, for fear that the juror
will sympathize with the plaintiff and explain to the other jurors how painful such
an injury is. There will be 12 jurors, unless the suit is filed in State Court and the
amount in controversy is less that $50,000.00, in which case there will only be 6
jurors.
After a jury is impaneled, the attorneys describe to the jury what the case is
about; these are called "opening statements". Then the Plaintiff calls his/her
witnesses and submits any documents necessary to prove his/her case. After the
Plaintiff has "rested", the Defendant's attorney can call witnesses and introduce
documents.
If the Defendant has called witnesses or submits documentary evidence, the
Plaintiff's attorney will be allowed to present his/her final "arguments" to the jury
by "sandwiching" the Defendant's closing argument between his/her arguments.
Usually, the Plaintiff's attorney waives his/her right to make 2 arguments and just
waits until the Defendant's attorney is finished before making a closing argument.
DAMAGES: The jury (or judge, if no jury) calculates the damages, if any, based
upon the evidence. This is a fairly simple matter in contract cases. The judge
instructs the jury on the law to be applied in the calculation of damages to be
awarded, if any. The jury's task is more difficult in personal injury cases, since
one element of damages in these cases is "Pain and Suffering". The judge will
instruct the jury that there is no method to measure these damages, except the
use of their "enlightened conscience". The jury is asked to determine the amount
of money which fairly compensates the Plaintiff for the pain he/she has endured
due to the negligence of the Defendant. That is quite a task!
The jurors must reach a unanimous verdict.
JUDGMENT: When one party wins a money judgment against the other party,
the winner gets a piece of paper that is really an IOU; the court does
automatically enforce its judgment. The winner has 3 courses of action to collect
the money:
The winner can use any combination of these procedures to attempt collection.
The winner can also use the same "Discovery" tools employed in the early stages
of the case, e.g., interrogatories, requests for production of documents, and
depositions, to learn where the loser's assets are.
ATTORNEYS' FEES: In almost all cases, except personal injury lawsuits, the
party hiring the attorney pays his/her attorney by the hour. Usually, the client is
required to pay the attorney a "retainer" (deposit). The retainer serves to insure
that the client is serious about pursuing the case and allows the attorney to
proceed with the case without having to worry whether he/she will be paid. In
personal injury lawsuits, it is customary for the Plaintiff's attorney to take the case
on a "contingent fee" basis. This means that the client will owe the attorney
nothing for his/her time spent on the case, unless the client wins a money
judgment. The client, however, is still responsible for all the costs incurred to
prosecute the case, e.g., filing fees, deposition costs and costs of obtaining
records.
It is unusual in this State for the court to order the loser to pay the winner's
attorney's fees. Normally, the winner has to show that the loser acted in "bad
faith" or was "stubbornly litigious" in order to win an award of attorney's fees.
Historically, this has been a high threshold requirement. New legislation, however,
has made it more likely that attorney's fees may be awarded, even to a loser in
personal injury cases. In 2005, the legislature passed a law that allowed the court
to order either party to pay the other party's attorney's fees if the party rejected a
"fair offer" to settle. A fair offer is defined as one that is within 25% of the amount
actually awarded at trial. The appellate courts have not yet decided whether this
law conflicts with the Constitution of the State of Georgia, which provides that all
persons should have equal access to the courts of this State.
example, in personal injury cases, e.g., a car accident case, the Plaintiff's
attorney always represents Plaintiffs; the defense attorney, who is hired by the
Defendant's insurance company, only represents Defendants who are insured by
that particular insurance company.
JUDGE: The judge is charged with the responsibility of ensuring that the parties
receive a fair trial. He/she decides if the questions asked of the witnesses are
appropriate and if the documents offered are admissible under our rules of
evidence. The judge also instructs the jury as to the applicable law, so it can
apply the law to the evidence it has heard and seen. If neither party requests a
jury trial, the judge will also decide who wins.
JURY: The jury serves as the fact-finder. The jurors decide the credibility of the
witnesses and the weight to be given to any documents introduced as evidence.
They apply the applicable law to the evidence to reach their verdict. The jury also
decides the amount of any damages to be awarded.
THE COURTS:
- Magistrate Court - Small claims (up to $15,000.00) may be brought here.
Most parties do not retain an attorney in this court, since the rules of
evidence are more relaxed. Even corporations can represent themselves
without an attorney here. The trial is more like "People's Court" in that each
side tells his/her story and the judge makes a decision. Even though the
rules of evidence are relaxed, you may still need to bring original
documents and witnesses. The primary advantage in this court is that it is
quick and convenient; trials are usually conducted within 90 days and held
at night, unless both sides agree to do it during the day. The primary
disadvantages are that either side can appeal and start the process anew
in State or Superior Court, and there is no formal procedure (called
"Discovery) for learning about the other party's case before trial. - State Court - All metropolitan counties have these courts, which preside
over all cases except divorces, and those involving title to real estate.
Attorneys are recommended here (and required for corporations), because
the rules of evidence can be tricky for the uninformed and inexperienced.
There is a 6 month "Discovery" stage, during which the parties may send
each other written questions (Interrogatories), requests for documents, and
force the other party to submit to a deposition (give sworn testimony).
Depending upon the complexity of the issues, the judge and the county
where the suit is filed, a trial may occur 18-30 months after the suit is filed. - Superior Court - Every county in the State has one of these courts, which
has jurisdiction over all civil cases, including divorces. The rules and
procedures are essentially the same as in State Court. - Appellate Court - The appellate courts in Georgia are the Court of
Appeals and the Supreme Court of Georgia. These courts do not hear
from witnesses; they only review the evidence submitted in the trial court
and decide if the judge made any legal errors, e.g., admitting or excluding
evidence improperly.
- THE STAGES OF LITIGATION:
THE COMPLAINT: The Plaintiff, or his/her attorney files the "Complaint"
(statement of grievances and request for relief, usually a money judgment). The
Complaint must usually be filed in the county of the Defendant's residence. The
Complaint has to state a "cause of action" (claim) against the Defendant and
recite the facts which support that claim.
THE ANSWER: The defendant, or his/her attorney has 30 days from the date the
Defendant was served with the Complaint (usually by the Sheriff), to file the
Answer. The Answer should deny all allegations the Defendant believes are
untrue. The Defendant may also file a "Counterclaim" against the Plaintiff, if
warranted.
DISCOVERY: The first 6 months of the case in the State or Superior Courts is
dedicated to the discovery of the evidence available to the parties. As noted
previously, the parties may send interrogatories, requests for the production of
documents and take depositions of the other party, and of witnesses. The
purpose of discovery is to promote the possibility of settlement (if the parties
know the evidence to be offered by the other side, the parties can make better
decisions about their likelihood of success at a trial) and to prevent surprise at
trial.
ADR (ALTERNATIVE DISPUTE RESOLUTION): Because so many suits are
being filed, other methods of dispute resolution have become common. Many
judges require the parties to submit to some form of alternative dispute resolution
before being allowed to go to trial. There are three principal methods of dispute
resolution:
- The parties and their attorneys can come to an agreement without the
input of third parties. This is the most common form of "settlement" and
usually occurs even before a lawsuit is filed. Once suit is filed, the next best
opportunity for settlement is after the discovery process is completed. - The parties can submit to "Mediation". In this process, a "neutral", so-called
because he/she has no stake in the outcome, tries to move both parties
towards middle ground. The mediator may, or may not, be an attorney.
He/she is trained to help people move away from intransigent positions and
listen to the merits of the other party's case. - "Arbitration" involves the use of an arbitrator who will conduct a "mini-trial",
and actually decide the case. Both sides must agree to submit the case to
arbitration, if the arbitration is to be "binding", i.e., enforceable by the
courts.
THE TRIAL: The first part of the trial, provided there will be a jury, is "striking" the
jury. The judge will ask questions of the potential jurors to determine their fitness
for service. The attorneys will then ask questions designed to learn of their likely
biases against, or sympathy towards their respective clients. For example, an
insurance defense attorney in a personal injury case, will strike from the jury
anyone who has had a similar injury to that of the Plaintiff, for fear that the juror
will sympathize with the plaintiff and explain to the other jurors how painful such
an injury is. There will be 12 jurors, unless the suit is filed in State Court and the
amount in controversy is less that $50,000.00, in which case there will only be 6
jurors.
After a jury is impaneled, the attorneys describe to the jury what the case is
about; these are called "opening statements". Then the Plaintiff calls his/her
witnesses and submits any documents necessary to prove his/her case. After the
Plaintiff has "rested", the Defendant's attorney can call witnesses and introduce
documents.
If the Defendant has called witnesses or submits documentary evidence, the
Plaintiff's attorney will be allowed to present his/her final "arguments" to the jury
by "sandwiching" the Defendant's closing argument between his/her arguments.
Usually, the Plaintiff's attorney waives his/her right to make 2 arguments and just
waits until the Defendant's attorney is finished before making a closing argument.
DAMAGES: The jury (or judge, if no jury) calculates the damages, if any, based
upon the evidence. This is a fairly simple matter in contract cases. The judge
instructs the jury on the law to be applied in the calculation of damages to be
awarded, if any. The jury's task is more difficult in personal injury cases, since
one element of damages in these cases is "Pain and Suffering". The judge will
instruct the jury that there is no method to measure these damages, except the
use of their "enlightened conscience". The jury is asked to determine the amount
of money which fairly compensates the Plaintiff for the pain he/she has endured
due to the negligence of the Defendant. That is quite a task!
The jurors must reach a unanimous verdict.
JUDGMENT: When one party wins a money judgment against the other party,
the winner gets a piece of paper that is really an IOU; the court does
automatically enforce its judgment. The winner has 3 courses of action to collect
the money:
- The judgment can be filed in the real estate records so that it acts as a lien
against the loser's real estate; - It can be given to the Sheriff to "levy" upon (seize) the loser's personal
property; - It can be used as the basis for a garnishment of the loser's wages or bank
account.
The winner can use any combination of these procedures to attempt collection.
The winner can also use the same "Discovery" tools employed in the early stages
of the case, e.g., interrogatories, requests for production of documents, and
depositions, to learn where the loser's assets are.
ATTORNEYS' FEES: In almost all cases, except personal injury lawsuits, the
party hiring the attorney pays his/her attorney by the hour. Usually, the client is
required to pay the attorney a "retainer" (deposit). The retainer serves to insure
that the client is serious about pursuing the case and allows the attorney to
proceed with the case without having to worry whether he/she will be paid. In
personal injury lawsuits, it is customary for the Plaintiff's attorney to take the case
on a "contingent fee" basis. This means that the client will owe the attorney
nothing for his/her time spent on the case, unless the client wins a money
judgment. The client, however, is still responsible for all the costs incurred to
prosecute the case, e.g., filing fees, deposition costs and costs of obtaining
records.
It is unusual in this State for the court to order the loser to pay the winner's
attorney's fees. Normally, the winner has to show that the loser acted in "bad
faith" or was "stubbornly litigious" in order to win an award of attorney's fees.
Historically, this has been a high threshold requirement. New legislation, however,
has made it more likely that attorney's fees may be awarded, even to a loser in
personal injury cases. In 2005, the legislature passed a law that allowed the court
to order either party to pay the other party's attorney's fees if the party rejected a
"fair offer" to settle. A fair offer is defined as one that is within 25% of the amount
actually awarded at trial. The appellate courts have not yet decided whether this
law conflicts with the Constitution of the State of Georgia, which provides that all
persons should have equal access to the courts of this State.
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