Sunday, October 17, 2021

A Lawsuit Primer


Participation in a lawsuit can be frightening. Even involvement as a witness can involve uncertainty. Part of the fear is based on the unknown, and attorneys often do a poor job of explaining what is going on. This column will be an effort to help those poor souls who get stuck in the litigation machine and do not know what the attorneys are talking about.

A civil lawsuit in Florida is generally started with filing a complaint or a petition requesting the court grant some type of relief. A complaint is filed in most cases, seeking relief at law or under statute. In matters which were traditionally equitable at common law, or when required by statute, a petition is filed. There is really no difference between a complaint and a petition, other than the name, as both seek relief from the court. The remainder of this column will generally refer to both as complaint.

The person filing a complaint is known as the plaintiff. The person filing a petition is known as the petitioner. A plaintiff is suing a defendant while the petitioner is suing a respondent.

The initial filing includes a summons. A summons orders the person on the other side of the case to serve a response within the time required by statute, which is usually 20 days. The Clerk of Courts accepts the filing, executes the summons and the summons and complaint (or petition) are then ready to be served.

Service, also known as service of process, is the procedure by which someone authorized by statute delivers the summons and complaint to the defendant. The summons and complaint must be served by the sheriff of the county where the person to be served is found, or a private process server qualified by the sheriff or court (designated as special process servers).

Individuals are the most common defendants. An individual may be served by leaving summons and copy of the complaint with the person to be served, or at that person’s usual place of abode with any person residing therein who is 15 years of age or older and informing the person of the contents. In some cases, such as landlord/tenant evictions, the summons and complaint may be served by posting on the door if no one is home.

The defendant generally has 20 days within which to serve a response to the complaint. Most common response is an answer in which the defendant admits or denies the claims. The defendant may also file affirmative defenses, which are legal excuses for performance. An example of an affirmative defense is the statute of limitations, which bars claims if not filed within a certain period of time. If the time has passed, the defendant can raise the statute of limitations as a defense to payment, even if the defendant actually owes what is claimed in the complaint.

If affirmative defenses are filed, the party against whom the affirmative defenses are filed has opportunity to serve a reply and avoidance. Just as the affirmative defense provides a legal excuse for performance, a reply provides an excuse for why the affirmative defense should fail. Using the statute of limitations as an example, the person suing to collect payment could argue that the reason suit was delayed was because the defendant repeatedly promised to make payment if suit was not filed. It will later be up to the judge or jury to determine if the excuse will succeed.

The defendant can also file a claim against the plaintiff or a third party that is not yet involved in the lawsuit. Defendant’s claim against a plaintiff is known as a counterclaim, and it is virtually the same as a complaint. Claim against a third party is known as a cross claim. If a counterclaim or cross-claim is filed, the party on the other side responds as a defendant.

As the lawsuit continues, the attorneys seek to learn everything they can about the opponent’s case. That is done through a process called discovery. Discovery has 4 major options. The party can file a request for admissions, in which the opponent is requested to admit various facts. If the opponent does not deny the request within time allowed by rules, the matters are deemed admitted. A request for admissions is usually limited to technical matters to avoid delay and cumbersome evidentiary proceedings at trial, but can be a dangerous tool if used for more substantive issues and the opponent fails to respond.

A party can also serve interrogatories on an opponent. Interrogatories are questions that must be answered under oath. Usefulness of interrogatories is somewhat limited by the fact that the attorneys write the answers for their clients.

A request for production asks the recipient to produce documents and records. Scope of the request can be quite broad, as the rules define the scope of discovery to include any matter that is relevant to the subject of the pending action and appears reasonably calculated to lead to the discovery of admissible evidence.

The last discovery tool is the deposition. A deposition is a proceeding wherein attorneys ask a witness questions under oath, similar to a courtroom, but instead of being with a judge it is with a court reporter that can transcribe the entire process. The witness is under oath and the hope is that the answers will be truthful.

Subpoenas are issued to compel action of a non-party. That action can include attendance at trial as a witness, attendance at a deposition or to produce documents. In Florida, attorneys can issue subpoenas and they do not have to be issued by the court. They carry the weight of the court and failure to comply with the subpoena can be contempt of court. Contempt of court can be punished by incarceration or other sanctions.

As a lawsuit continues, motions may be filed. Motions request the judge order someone to do something or not do something in the lawsuit. Typical motions include motions to force answers to questions or provide documents, or conversely asking the court to limit discovery or proceedings. Motions are not pleadings and generally do not require a response, but they do require a decision by the court to get the requested relief. In some cases, the judge refers the matter to a magistrate to decide the issue or issues in the motion. A magistrate is not a judge but an attorney hired by the courts to conduct hearings when the parties allow it. If either party objects to a magistrate, a judge will hear the matter.

Due to funding constraints, there are limited judges and limited judge time. To push cases to conclusion without trial, judges invariably order the parties to mediation or nonbinding arbitration, which must be completed prior to trial. Mediation is a process by which the parties attempt to negotiate settlement through a third party mediator, who has gone through training and been certified by Florida’s Supreme Court. If the parties settle their dispute, the matter is ended and if not, it goes to trial.

Non-binding arbitration is a process by which the attorneys submit a summary of their case to an arbitrator and the arbitrator actually renders a decision. If either party is unhappy with the decision, that party can request a trial as if the arbitration never happened. Requesting a trial after arbitration is not without risks. If the plaintiff requests trial and gets judgment at least 25 percent less than the arbitration award or the defendant asks for trial and judgment is at least 25 percent more than the arbitration award, that party can be assessed the other party’s arbitration costs, court costs, attorney’s fees and other expenses incurred after the arbitration hearing.

If the matter is not resolved, the ultimate resolution is by trial. Trial can be jury or non-jury. Either party can request a jury trial. If a jury trial is requested, the jury renders a verdict on the facts and the judge applies the law. In a non-jury trial, the judge determines both the facts and applies the law to those facts. At conclusion of the trial, a judgment is entered awarding or denying relief requested in the case.

A case is not necessarily over when the judgment is entered. Either party can file an appeal, asking an appellate court to reverse the trial court based on an error or mistake. Even if no appeal is filed, a judgment does not automatically transfer money from the loser to the winner. Collection of a judgment can be difficult and expensive.

William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations and real estate. The information in this column is general in nature and not intended as legal advice.

William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations and real estate. The information in this column is general in nature and not intended as legal advice.

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