Practice Areas
Civil Litigation
    THE PLAYERS:

    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:

  1. 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.
  2. 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.
  3. 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.
  4. 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:

  1. 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.
  2. 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.
  3. "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:

  1. The judgment can be filed in the real estate records so that it acts as a lien against the loser's real estate;
  2. It can be given to the Sheriff to "levy" upon (seize) the loser's personal property;
  3. 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.
Deming, Parker, Hoffman, Campbell & Daly, L.L.C.
Attorneys At Law Since 1974    
770-564-2600 Metro Atlanta  912-527-2000 Savannah
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