B. Starting an Action

A civil lawsuit must be commenced (i.e., filed) within a certain period of time after the dispute arose to avoid dismissal on the basis of being untimely (called the statute of limitations). Each state and federal court has its own rules concerning the maximum amount of time you can wait before a lawsuit must be filed; it is crucial to know how much time you have before contemplating litigation, If you wish to join others in one suit (called a class action), it is necessary to contact the law firm representing the class within the required period of time to be able to join and be included in the lawsuit.

A lawsuit is started by preparing and filing a summons and complaint with the court. A summons is a single piece of paper typically accompanied by the complaint that, when served on the defendant (e.g., an employer), notifies the defendant of a lawsuit. A complaint is a legal document that starts the lawsuit. It alleges pertinent facts and legal causes of action that the plaintiff will rely on in her attempt to collect damages. For a lawsuit to proceed, it is necessary that the summons and complaint be served on the defendant either in person (typically with the help of a process server or sheriff) or by certified mail, return receipt requested, in states that permit mail service. If the defendant is not notified of the existence of the lawsuit or if the complaint is not drafted accurately and fails to state a legally recognized cause of action, the case may be dismissed. If a lawsuit is dismissed without prejudice it may be started over; lawsuits dismissed with prejudice may never be brought again.

Once the summons and complaint is served on the defendant, it must be filed with the proper court together with the payment of the initial filing fee (which can be as much as $250 in some states). Filing these documents is rather easy. At the courthouse, a clerk accepts the fee and documents, stamps the papers to indicate the date and time received, and issues a receipt. The documents then become part of a file, which is stored at the court. The file is given to the presiding judge of the case when appropriate (such as during oral arguments before trial and at the trial). A judge is randomly assigned to preside over every filed case. The judge will rule on various pretrial motions, move the case along to the trial, conduct the trial, and render a judgment based on the evidence when a jury is not involved.

After the complaint is served, the defendant has a period of time (usually no more than 30 days) to submit an answer. An answer is the defendant's reply to the plaintiff's charges in a civil lawsuit. Properly drafted answers typically deny most of the plaintiff's charges, list a number of legal reasons (called affirmative defenses) why the case should not proceed, and may or may not contain counterclaims. A counterclaim is a claim asserted by the defendant in a lawsuit. Sometimes the plaintiff loses her case and the defendant wins the case through its counterclaim.

Each case is decided by its unique facts. The fact that you are the plaintiff means only that you filed the lawsuit first; it does not guarantee success of the matter in any way. However, if the defendant fails to respond to the lawsuit by filing an answer, it may lose the case by default. (Note: If you are sued, always consult an attorney after receiving a complaint to ensure that a timely answer will be filed.)

Kinds of Damages

Damages are compensation or relief awarded to the prevailing party in a lawsuit. Damages can be in the form of money or a directive by the court for the losing party to perform or refrain from performing a certain action. The following briefly describes various forms of damages.

Compensatory damages.This is a sum of money awarded to a party that represents the actual harm suffered or loss incurred. To collect compensatory damages, one must prove what the actual out-of-pocket losses are since damages cannot be presumed. For example, projections of future lost profits will not be awarded unless they are definite and certain.

Incidental damages.Incidental damages are traditionally direct out-of-pocket expenses for filing a lawsuit and related court costs (such as process server fees). These direct costs of litigation are sometimes awarded to the prevailing party in a litigation as part of the party's loss.

Liquidated damages.This is an amount of money agreed on in advance by parties to a written contract to be paid in the event of a breach or dispute. If it is not possible to compute the amount of the loss, a judge may uphold the amount specified. However, in many circumstances, when the amount specified has no actual basis in fact, a judge may disregard it, viewing the amount merely as a penalty.

Nominal damages.This is a small amount of money (e.g., $1.00) awarded by the court. Sometimes, a party may win the lawsuit but not have proved suffering or any actual damages.

Punitive damages.Also called exemplary damages, punitive damages represent money awarded as punishment for a party's wrongful acts beyond any actual losses. When punitive damages are awarded, a judge is often sending a signal to the community that similar outrageous, malicious, or oppressive conduct will not be tolerated. Under the laws of many states, punitive damages can be awarded only in certain types of lawsuits, such as personal injury and product liability actions, and not lawsuits to enforce employment contracts or business agreements.

Specific performance.This is a directive by the court for the party being sued (i.e., the defendant) to perform a certain action such as sell a business or not work for a competitor pursuant to a clause in an employment contract. Specific performance is typically not awarded if monetary damages can make the party seeking the relief whole.

Injunction.This is a court order restraining one party from performing or refusing to perform an action or contract.

Mitigation of damages.This is a legal principle that requires a party seeking damages to make reasonable efforts to reduce damages as much as possible; for example, to secure comparable employment or file for unemployment benefits if a job cannot be obtained in the short term.

Sometimes an employer is interested not only in obtaining damages, but in seeking to stop you from establishing a competing business or working for a competitor. An action can be commenced called a preliminary injunction. The employer (as the moving party) will request a hearing immediately after the lawsuit is filed. A request for an immediate hearing is called an order to show cause. If a judge rules in favor of the motion, the injunction will be granted. If a judge decides in favor of the defendant, the injunction will be denied but, depending on the circumstances, the case may be allowed to proceed like any other lawsuit to ascertain damages.

After the answer is received from the defendant, the discovery phase of the case begins. Several pretrial devices, including interrogatories, depositions, and motions, are used by lawyers to elicit information from the opposing side, gather evidence, and prepare for the trial. The discovery phase can last several years in a complicated case and can be very expensive in terms of attorney fees and the costs of taking depositions, procuring documents, and paying for postage and related expenses.

Interrogatories are written questions sent to an opponent to be answered under oath. One problem with interrogatories is that the opposing party's attorney may draft the responses to prevent, insofar as possible, damaging statements from being conveyed.

Depositions often lasting several days are taken by both sides in complicated labor cases. A deposition is a pretrial proceeding in which one party is questioned under oath by the opposing party's lawyer. A stenographer is present to record all statements and preserve the testimony. Depositions are used to collect information and facts about the case, narrow the issues to be proven at trial, and discredit (impeach) the testimony of the witness.

It is essential that your lawyer properly prepare and advise you before your deposition is taken. Many cases have been lost due to unprepared responses elicited from a witness at a deposition. If your testimony is materially different (inconsistent) at the trial from statements you gave at the deposition, your credibility may be seriously undermined; giving a totally different statement about something at the trial could dramatically reduce the chances of success. Also, incorrect answers at the deposition might give the opposing attorney grounds to file a motion to dismiss the case in its entirety or throw out various causes of action. A motion to dismiss requests that even if the plaintiff's allegations are true and there is no genuine issue as to important facts, no legal basis exists for finding the defendant liable.

Sometimes attorneys file motions to get a ruling on admissibility of evidence or ask the court to assist in obtaining documents and records that have not been turned over by the other side (although promised).

Once the discovery phase of the case is completed, a judge will order a pretrial conference. Both attorneys are asked to appear to discuss the case and the possibility of settlement. Some judges make active attempts to settle cases at these conferences. If the conference is successful and the case is settled, the parties will prepare a written stipulation that describes the terms of the settlement. Typically the judge will review and approve all settlements before they are implemented.

Tip:Think carefully before accepting any settlement. Most civil actions take up to five years to be tried. By accepting a fair settlement early on, you have use of the money, which can be invested to earn more money. You may eliminate large legal fees, court costs, and the possibility of eventually losing the case after a trial. However, if you have a good case, it may pay to wait before discussing and accepting a settlement. Most trial attorneys believe that large settlements are obtained for their clients by waiting until the case reaches the courthouse steps.

The decision on whether to accept a settlement should always be made jointly with your attorney, who knows the merits, pitfalls, and true value of the case better than you. However, do not allow a lawyer to pressure you into accepting a smaller settlement than you deserve. Some attorneys seek smaller immediate settlements out of laziness because the settlement represents money in the bank to them.

Instruct your attorney to provide you with a detailed explanation of the pros and cons of settling your case. Inform her that you prefer to control your affairs, including the decision of settling a claim. Do not let your attorney push you around. Your attorney cannot settle the case without your approval. If she does, she can be sued for malpractice. If you are not satisfied with your lawyer's advice or conduct, consult another attorney for a second opinion before settling the matter. Do this before taking action, because once you sign the settlement papers you probably cannot change your mind and continue with the case, since release language contained in such documents generally prohibits you from doing so.

On page 262 is an example of a general release in an employment discrimination case.

If a matter cannot be settled, the judge will discuss with both attorneys how the case will proceed. The identity and order of witnesses and exhibits to be submitted at the trial will be agreed to before the trial begins. In many types of labor cases, either party can request that a jury decide the case rather than a judge. A jury trial usually involves 12 people, although some states allow as few as 6. Some states permit a civil jury's decision to be less than unanimous.

The first step of the trial begins with jury selection if a jury has been requested by either side. Prospective jurors are questioned (referred to as the voir dire) to see if they are qualified to sit on the panel. Lawyers seek answers to certain questions in the attempt to learn if a person has an open mind and is not biased. After attorneys for both sides dismiss certain people and retain others, the jury is picked and the trial begins. The plaintiff's lawyer will begin the trial with an opening statement. This is a speech designed to tell the judge or jury about the nature of the case, what the plaintiff intends to prove from the facts, and what kind of damages are sought.

After the defendant's attorney gives his opening statement, the trial begins. Witnesses are called by the plaintiff, and witnesses give their direct testimony under oath. The opposing attorney has the right to question (cross-examine) each witness in turn. All other evidence such as documents and exhibits, is submitted and other witnesses are questioned.