Elawyers Elawyers
Virginia| Change
Visitors: 27

Lawyers and Legal Process FAQs

Pursuing a lawsuit or fighting a lawsuit against you can be a daunting task. You probably should hire an attorney to handle the case if it involves high stakes, as long as you have adequate resources. Otherwise, you will want to gain an understanding of both the substantive law governing the dispute and the procedures involved in the litigation. Each case is different, but these are some answers to questions commonly asked by first-time litigants.

When should I sue?

You should try to resolve a dispute outside litigation if possible. This may involve writing a demand letter to the potential defendant, telling them that you will sue if they do not address your grievance. Or it may involve pursuing a resolution through mediation, arbitration, or another less adversarial forum. However, if you have no real alternative, you may need to file a lawsuit. You should make sure that you have a strong case by reviewing the elements of your claim and determining whether you have evidence to prove each of them. Also, you should consider whether you will be able to collect a judgment if you win. If a defendant lacks the resources to pay, winning a lawsuit may not mean much in reality.

When is it too late to sue?

The statute of limitations determines the time in which you can bring a lawsuit. (Additional rules known as statutes of repose also may have an impact in unusual situations when the statute of limitations has been extended.) Statutes of limitations vary according to the state and the type of case. As soon as you think that you may have a claim, you should check the relevant statute and make sure that you do not miss the deadline. These rules have very few exceptions, and failing to comply with the statute of limitations usually will result in the dismissal of a case, regardless of its merits. As a practical matter, you also will not want to let a long time pass before you sue because this can hinder your ability to gather the evidence needed to prove your claim.

Where should I sue?

To hear and resolve a dispute, a court will need to have personal jurisdiction over the defendant. If the defendant resides in the state or does business in the state, a court will have jurisdiction over them. If the defendant does not reside or do business in the state where the plaintiff wants to sue them, the plaintiff still may be able to establish jurisdiction in limited situations. They can serve the defendant with the summons and complaint while they are in the state, or they can show that the defendant has some minimum contact with the state, such that it would be fair for a court in the state to have jurisdiction. Special rules apply to car accident cases, which always can be filed in the state where the accident happened.

When do I sue in federal court?

You can bring almost any lawsuit in state court. By contrast, you can sue in federal court only if your case involves a question of federal law or the Constitution, or if it involves diversity of citizenship. This means that you are suing someone from a different state or a foreign country, and you are seeking at least $75,000 in damages. (Sometimes a plaintiff will deliberately sue for less than $75,000 to avoid proceeding in federal court.) If there are several parties, diversity must be complete for diversity jurisdiction to apply. In other words, no plaintiff can be from the same state as any defendant. If you file in state court when your case qualifies for federal court, a defendant can get the case removed to federal court or sometimes get it dismissed without prejudice. This can cause problems if the statute of limitations is expiring soon.

How do jurors get chosen?

The attorneys for each side (or the parties if they are unrepresented) will go through a jury selection process known as voir dire. This involves identifying possible biases that could affect a juror’s perspective on a case. For example, someone who recently has been fired might be naturally sympathetic to an employee bringing a wrongful termination case against their former employer. If one side or the other believes that a juror would be biased against them, they can ask the judge to exclude the juror for cause. If there is no basis to exclude a juror for cause, the parties or their attorneys still have a limited number of “peremptory strikes,” which allow them to exclude certain jurors without cause. Peremptory strikes cannot be used in a way that discriminates against jurors based on race or gender.

Do I need a lawyer?

This depends on the significance of your case and its complexity. If you are pursuing a claim after a minor car accident, and liability is clear, you might be able to work out a favorable settlement without hiring a lawyer. If you are fighting for custody of your children, you might want to hire a lawyer to make sure that you preserve your relationship with them. Or if you are suing a company based on a defective product that injured you, you might want to hire an attorney who understands the technical aspects of these cases and can hire an appropriate expert. If you want to hire a lawyer, but your only concern is that you cannot afford the cost, you can contact local legal aid organizations or the state bar association to see whether you can find free legal assistance.

What should I expect from a lawyer?

Your lawyer should promptly and courteously respond to phone calls, emails, and other communications. They should be able to give you a general overview of your case, including its current status as well as the likely next steps and any challenges that may arise. While a lawyer does not come with a guarantee of excellence, they should not make egregious errors that a reasonable lawyer in their position would not make. (You can sue for malpractice if this happens.) Lawyers have certain basic ethical obligations under the rules of their state bar, such as keeping client information confidential, avoiding conflicts of interest, refraining from self-dealing, and providing zealous advocacy. Also, a lawyer should be able to clearly explain how their fees will be calculated and provide you with a written fee agreement upon request. They cannot change a fee agreement without getting the client’s consent.

How do I find a lawyer who will work on a contingency fee?

Lawyers often work on a contingency fee when they handle personal injury cases, employment discrimination and harassment cases, and other cases that may lead to a substantial settlement or verdict. If you are pursuing one of these cases, you should be able to easily find a lawyer with this type of fee structure. You can get referrals from friends and family members, consult the state bar and online referral networks, or simply search online for a lawyer in your area. When you meet an attorney who will be handling your case on a contingency fee, you should ask them about the value of your case, your probability of success, and the percentage that will constitute their fee. Be aware that you will receive only general estimates regarding the value of your case and its prospects, since a lawyer cannot promise specific outcomes.

What do I do if my lawyer does a bad job?

You can follow up with your lawyer and ask to review your case file. If they are unresponsive, or if the case file shows that they have not followed up properly on your case, you may want to fire your lawyer and get another lawyer. This will involve getting your file from the original lawyer and transferring it to the new lawyer. If time is running out on your claim, you may want to learn about the law governing your case in the event that you need to proceed on your own as a last resort. Meanwhile, you can consider reporting the attorney to their state bar association if their conduct was especially incompetent or egregious, and you can sue for malpractice if you suffered losses because of it. However, legal malpractice cases are complex and often hard to win.

Does the other side pay attorney fees if I win?

In general, the U.S. legal system provides that each side pays their own attorney fees, regardless of the outcome. This is only a default rule and does not apply if a contract or a statute provides that the losing side will pay attorney fees in a certain situation. Courts also have general authority to order one side to pay the other side’s attorney fees in the interests of justice and fairness. For example, if someone brings a clearly meritless lawsuit to harass someone else, the court might order the plaintiff to pay the defendant’s attorney fees.

How do I collect a judgment?

If the judgment debtor fails to pay the award promptly, you can contact them and demand that they pay it. Most people and institutions in a viable financial condition will pay a judgment willingly to get it off their records. If the judgment debtor in your case is struggling to make ends meet, you can try to satisfy the judgment by seizing their assets. This may mean garnishing their paychecks, putting liens on their property, taking money out of their bank account, or attaching assets of their business. If you suspect that the judgment debtor may have more assets in the future, you should make sure to keep renewing your judgment so that you can collect from their future assets. Sometimes a debtor will hide assets in an effort to shield them from collection, so you may need to hire an expert to locate them. You should be aware that certain key assets will be at least partly exempt from collection.

Do I pay tax on a judgment?

You will not need to pay tax on damages awards arising from physical injuries or illnesses. In other words, awards in most personal injury cases will not be taxed. However, awards in other civil cases are taxable, such as damages in a breach of contract case or lost income in an employment discrimination case. Punitive damages, which are damages that go beyond compensatory damages to punish a defendant, are generally taxable as well. Since a judgment counts as income in most cases, you also may rise to a higher tax bracket. As a result, your tax obligations may increase overall.

From Justia  

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer