CIVIL LAWSUITS 101
Written by Donald B. Hoyt
What is a civil lawsuit? A civil lawsuit is a claim brought by one party – called the plaintiff or plaintiffs when more than one person is involved. A plaintiff can also be a corporate entity of some kind. The other party is the defendant – or again defendants if plural. And again it can be a corporate entity.
The plaintiff states that as a result of some action – or inaction – by the defendant the plaintiff has been harmed. The conduct – or failure of conduct by the defendant must arise out of a situation that brought the parties together. That situation must be direct between plaintiff and defendant. It could be an agreement of some kind – written or oral. Or the situation could be a relationship that creates a duty. An example could be the plaintiff performing services for the defendant. Or the Plaintiff could have been in a car that was struck by the defendant.
The plaintiff claims that as a result of the defendant’s action or inaction the plaintiff has been harmed and is entitled to compensation or damages. That is only what the plaintiff is entitled to. No jail or punishment is inflicted on the defendant. Just the award of compensation. That is why it is called civil litigation, not criminal.
The First Conversation
When a client walks into our office we start with the story that tells us the background that led to the current situation. Occasionally we will direct questions to get details accurately such as names, addresses, dates and other pertinent information. Of course the challenge is to assemble a set of facts that is clear to us and the client before we can begin to explain how the law would deal with the matter. It is also critically important to advise that we would have to perform a “conflicts check” to ensure the firm has no conflict of interest in the matter.
There may be a timeline issue in terms of either responding to a letter, a complaint, a summons, or deal with a statute of limitations.
When all of the important information is developed, and our office considers the legal framework of the problem, we mutually decide on whether or not to take action. In other words, not all problems can be solved with legal intervention. There can be jurisdiction or venue possibilities to discuss; there could even be a choice of law question, depending on what the documents are or what state boundary issues there might be. There could also be a need to discuss or consult with others such as witnesses, experts or police officers. There might be a need to obtain documents and possibly insurance policies. Or the matter could just be a personal squabble that does not warrant legal action, just some calm advice.
Lastly, the matter of cost needs to be addressed. We need to advise what our fee structure is and how we expect to be compensated for our efforts. Additionally there could be court costs, experts, retainers or outside investigators that would be explained.
Legal Insights
Due to the myriad possibilities of scenarios it would be impossible to list all circumstances that might be involved in a first meeting. Just to name a few, there could be issues such as breach of contract matters consisting of sales, performance issues, compensation issues, or payment disputes. There could be negligence claims, insurance, injury claims, assault and battery, defamation, land disputes or employment matters. Each one of these categories carries with it a separate analysis.
The result of the initial consultation is an engagement letter which spells out what we are doing for the client and what the client can expect regarding all of our actions, including ongoing communications and the clients cooperation and other responsibilities.
If you are involved in a situation that you are concerned about, we can help. The first step is to contact us for a no cost consultation. At that time we will be happy to listen and see if you have an issue we can help you with.