So What’s So Civil About It?
“Civil Litigation” seems to be an oxymoron. How can suing someone in any federal or state court be civil in any way, shape, or form be civil? In fact, in legal jargon most of litigation falls under the broad umbrella of “civil”. Most anything that is not criminal or domestic or probate is probably considered civil. Medical malpractice, common law torts such as breach of contract, defamation, negligence, intentional infliction of emotion distress, and unfair business practice are civil suits. The term “civil” is not always appropriate, as civil litigation can be contentious and painful to endure if you are on the defendant’s side and complex and time-intensive if you are on the plaintiff’s side. The following is how civil suits typically work.
Choosing a Litigator
Let’s say you want to sue someone. The first thing to do is to find an attorney, like for example me. These days roughly 30-35% of my practice is civil litigation. Whether me or not, it is efficient, if not quite important to find an attorney who can provide you “turn-key service”, meaning do everything from initial consultation to trial room litigation. Many attorneys shy away from the courtroom, or are even phobic about it. The “one-stop shop” approach makes sense for civil litigation since the process can be long and changing lawyers midstream can make it much longer yet. You want someone aggressive and assertive, but not overly off-putting. Practicing law, especially in litigation, can be as much about the subtle and timely offer as the overwhelming oration.
Clients should feel free to ask for references or about a litigator’s experience. Though I am happy to talk about my success rate, that can be deceiving, especially for someone who takes on difficult cases. Plus, defining “success” can be tricky, as examined further below. Ok, enough for the shameless Mark Bamberger Law Company plug.
Evaluating the Validity of Your Case
Once you have chosen an attorney who you can trust, the next step is, or should be, the debriefing. Here the client tells his or her story to the lawyer so he or she can evaluate the validity of the lawsuit. One of the hardest jobs in my practice is explaining to my clients the difference between being wronged in life and being able to prove being wronged in a civil court of law. Almost daily at Bamberger Law, I have good people in my offices who tell stories of dread and pain. I empathize, I sympathize, I feel their pain. But they have their family, friends, and family pets for that. What they need from me is experience and a cold and calculating view of their case for its legal validity. Some find this harsh, but it is important. Ethics prohibit an attorney, as an officer of the court, from filing what is defined as a “frivolous” law suit. That term is ill-defined, but in general it means a lawsuit without substance; one that cannot reasonable be proven. It does not mean “likely winnable”, as some suits I file are likely to fail. However, there is a minimal standard that the evidence of the case can lead, if reasonable minds see it objectively, as supporting my client. The standard of proof in a civil case is a “preponderance of the evidence”, meaning more likely than not. This is opposed to the criminal standard of reasonable doubt, which is far higher.
*Editors Note: This post is being presented over three days due to it’s length and amount of detail.
Part Two… of THE “CIVIL” SIDE OF LITIGATION is here tomorrow at 3PM. Or if you want to read the entire story now, please visit The Mark Bamberger Company website.
