A lawsuit starts with the filing of a complaint. The complaint states the essential facts, and outlines the reasons why you should prevail. It is not intended to state all the details. Those will come up later. The facts stated in the complaint, however, must be accurate. Review them carefully and make sure they do not overstate — or fail to state — what happened. Your lawyer will determine the laws you will use to advance your claims. You do not need to be an expert on them, but you should ask questions until you have a good general understanding of what they are and how they apply to your case.
Once the complaint is written and filed with the court, it must be served on — that is, formally delivered — to the opposing party. Generally, this must be done by a law enforcement officer, or by an authorized process server. Your opponent has 20 days from receipt of the complaint to file a response. If he fails to respond, you can ask the court to enter a default. The opponent then has an additional 10 business days to file his response. If he fails to do so, the court will give you judgment against him for those things you asked for in your complaint.
If your opponent responds, the case enters the “discovery” phase. The purpose of this phase is to allow the parties to acquire as much information about each other’s position as possible. It begins with both sides exchanging disclosure statements. All evidence that you or your opponent intend to use must be disclosed to the other side. If there are documents, statements, witnesses or other evidence that supports your claims, you must timely disclose it. Your opponent must do likewise in support of his defenses. The penalty for nondisclosure is harsh. Evidence that is not properly disclosed cannot be used at trial. It is simply excluded. If you fail to disclose the “smoking gun” that lays waste to all your opponent’s defenses, the jury will never see it, and will decide case as though it never existed. The practical rule, then, is to disclose anything and everything you can about your case, as soon as you can, or as soon as it comes to mind.
In addition to disclosure statements, the parties can ask each other written questions (“interrogatories”), request that an opponent make admissions of facts not in controversy (“requests for admission”), or request that an opponent deliver copies of documents or things that might support his claims or defenses (“requests for production”). Parties can also compel people or businesses outside of the lawsuit to provide evidence or testimony by having subpoenas issued and served on them. Unless information is protected by law (such as confidential communications between doctor and patient or attorney and client, for example), a subpoenaed party generally has to produce what the subpoena requests.
Another common discovery tool is the “deposition.” A deposition is a proceeding where the opposing party, usually through his attorney, asks a party or a witness questions, and the party or witness must respond under oath. It is the same as testimony that would be given in court. Typically, the deposition takes place in the office of the attorney who will be asking the questions. A court reporter attends the deposition, and writes down the questions and answers as they are spoken. The written record is compiled in a booklet, and given to the witness to make any corrections or additions that the witness deems necessary to make his testimony accurate and complete. What was said in the deposition then becomes testimony that can be used at trial to the same extent as if it were given in front of the jury.
Depositions are particularly useful because they are more spontaneous, and give all sides an idea of how the trial testimony may be delivered. You can see how the witness reacts under pressure, and the questions can cover much more ground in a shorter time than with written questions. Witnesses also frequently volunteer useful information during a deposition, often in reaction to unexpected questions. Depositions can often make or break a case, and because of that, we take extra care in preparing for them. If you are required to give a deposition, you require special preparation. That will be the topic of our next installment. Stay tuned.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Starting Your Lawsuit, or any other litigation matter, please feel free to contact us at 480.461.5300, log on to udallshumway.com, or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.