Understanding a Lawsuit, From A to Z

Stages of a Lawsuit

Filing

Every lawsuit begins with the filing of a complaint and the payment of a filing fee. The complaint in Illinois, which is a "fact-pleading state," must state specifically what happened, who did what to whom, the basis of their alleged liability, and a request for damages and other relief.

For example, if you are involved in an auto crash, a complaint would allege that on such and such a day you were proceeding northbound on Elm Street, the Defendant was also northbound on Elm, that the Defendant failed to stop for traffic, and crashed into your vehicle, and that as a result of those negligent actions, you were hurt.

In most cases, you simply ask for more than $50,000 or less than that amount. You hear a lot of times in the news about a suit filed asking for millions of dollars. While this gets attention and sounds impressive, in fact, it is legally useless to do that. In all "prayers for relief" in Illinois, you only need to allege damage of "more than $50,000" or "less than $50,000." You are limited to what evidence you can prove anyway. A case filed seeking $10 million might never even get to the jury while a case seeking "less than $50,000" can be amended prior to trial and procure a record setting verdict.

Cases alleging the higher number are filed in the Law Division, while smaller cases are in the Municipal Division. Just because you allege a specific amount does not mean you are entitled to that (or any) amount. You must prove your damages, as well as the liability of the responsible parties.

Service

Once a lawsuit is filed, it must be served, along with a summons, on all named defendants. There are differing rules for service depending upon the type of case, but in most situations, a defendant must be served personally. Typically, when the case is filed, a summons is issued by the Clerk of the Court, and the Sheriff is then assigned to serve the legal papers upon the defendant(s). If the Sheriff goes to that person’s home and finds no one home, several more attempts are made.

However, after about 30 days, the summons usually turns "stale," meaning a new one must be filed and issued—this is known as an Alias Summons. If the Sheriff does find the person, he or she simply hands the complaint and summons to that person, who now has a limited amount of time to file papers formally submitting to the Court’s jurisdiction. There are also situations where the person may not be home. However, the Sheriff can simply hand the papers to a member of the household who is 18 or older, such as a spouse or child. This counts as legitimate service. In some cases, as with corporations, service can be made at the office of the Registered Agent, in which case any agent of that office who takes the papers acts as that company’s agent, and thus is served adequately.

Appearance, Answer; Motion to Dismiss

Depending upon the type of case and summons used, there is a limited amount of time in which the served party (Defendant) must file an appearance with the Clerk of the Court, which is usually around 30 days after service. Appearing formally submits that person to the jurisdiction of the Court (there are some exceptions) and requires the payment of an appearance fee. There is an additional charge if a demand for a jury trial is made.

Once the Defendant appears, he or she must either answer the complaint by filing an Answer and serving it upon the Plaintiff/Plaintiff’s attorney within a specific time period, often just a few weeks, he or she must file a motion to dismiss the Complaint. There are several types of motions to dismiss. Some are based upon the failure of the complaint to properly state a cause of action (not enough specifics, not a recognized cause of action). Others are based upon some sort of a legal defense, such as immunity from suit, an affirmative defense, or the like. In addition to a motion to dismiss, a Defendant may also file an answer and file affirmative defenses instead of a motion to dismiss. It can get complicated. If a motion is filed, it is heard by the judge and the complaint may be dismissed. In many cases, a legally inadequate complaint may be replead. If so, the case remains pending. However, some motions alleging the cause of action does not exist or there is a legally recognized defense to such a suit might be granted, causing the case to be "tossed out of court" permanently.

At Issue

Once the motion practice is over and the Defendant has answered the complaint, the case is considered "at issue." This now leads to the next stage, which is known as "Discovery."

Discovery

There are two types of discovery available; written and oral. Except in very limited types of matters (small claims matters), there is discovery allowed in almost all cases.

Written Discovery

Usually written discovery is first. This involves written questions, requests for documents, and names of witnesses. Written discovery is made up of Interrogatories, Requests for Production, and similar documents. They are nothing more than written questions from one party to the other asking for things that the other party does not have/know. For example, in an auto crash case, one typical thing a defendant will ask the plaintiff is for all of the medical records and bills for the injuries claimed. A plaintiff may ask the defendant for the disposition of his or her traffic court ticket.

Written discovery is divided further into that governed by Illinois Supreme Court Rule 213 (f)(1), (2), and (3). Section (1) deals with lay, or fact witnesses. These would include the drivers involved and any witnesses. Section (2) would involve the treating medical providers for the plaintiff, the opinions they will likely provide about the treatment provided, the reasonableness of same, and the prognosis of the plaintiff’s recovery. Section (3) is what is known as "expert witness" discovery. Experts who are "controlled" (usually paid by a party) and expected to render opinions are included in this category.

An example of this might be an accident reconstructionist expert who opines that the defendant was intoxicated and operating too fast based upon the presence of skid marks at the scene. Both parties must "seasonably update" discovery. In other words, if you get to trial and you have not revealed witnesses or opinions to the other party in advance, you can expect that testimony to be disallowed by the judge.

Oral Discovery

Depositions are what composes oral discovery. Depositions are nothing more than questions asked of a witness in the presence of a court reporter/notary public. All parties and their attorneys are entitled to be present at a deposition. Each deposition can last up to 3 hours (more, with leave of Court). Depositions serve multiple purposes. They allow each side to weigh the credibility of witnesses, assess how they will "play" to a jury, and call attention to weaknesses in their own cases. They also lock the deponent into a story. The statement given at a deposition cannot be changed at trial. If testimony at trial changes or disagrees with that witness’ deposition, expect impeachment. For example, if the Defendant in a car crash case states at her deposition she was moving 20 miles per hour at impact, but at trial claims to have been going "no faster than 10," expect the Plaintiff’s attorney to read back her statements at the deposition (or, better yet, play back the videotape of her deposition to demonstrate body language and words) and essentially point out to the jury that she was lying either then or now. Impeachment attacks a witness’ credibility, and can be key in ruining a great case. For that reason, all good attorneys prepare witnesses prior to depositions.

Expert witnesses are particularly important and their depositions often make or break a case. For instance, in a medical malpractice trial, let’s say the claim is that the Defendant doctor failed to properly monitor the fetal heartrate, and the baby was born with brain damage. If the Plaintiff retains an expert physician who offers the opinion that the Defendant doctor should have monitored the fetal heart rate every minute, but the medical records indicate that this was only done every 10 minutes, you can see how strong such testimony would be in convincing a jury that malpractice was committed.

Now What?

There is usually one more step before trial. In some cases, there is another opportunity to file a motion, usually for Summary Judgment. This must be filed in advance of trial. The basis of a Summary Judgement motion is that there exists "no genuine issue of material fact" left for the jury or judge to decide. This might mean that in a deposition a plaintiff admitted he did not notice any contact between the defendant’s car and his. How would he prove his case in that situation? A judge may very well review all of the pleadings, depositions, and other statements on the records and dismiss the case on that basis.

Finally

Lawsuits are detailed, complex, and demand strict adherence to the rules. As shown above, there is a lot more to it than what the television legal dramas portray. It is not something that should be done without an experienced lawyer.

Schedule a Free Consultation

If you are considering suing someone or being sued, consult a lawyer immediately to determine what rights you may have. Attorney Stephen Hoffman has been representing injured parties for over 25 years. Contact the Law Office of Stephen L. Hoffman today to schedule a free consultation: call (773) 944-9737 or email stephen@hofflawyer.com.