The Validity of a Civil Suit
The evaluation of the validity of a civil lawsuit has a dual purpose. Many times at The Mark Bamberger Company I represent a “David” against a “Goliath”. This not always the case, but where it is, I often provide the option of doing the on contingency. That means that the client pays for the filing fee (typically between $200-350), along with depositional and expert witness fees down the road, but I pay for the rest. The rest could mean literally hundreds of hours and thousands of dollars of resources to litigation a case. Mindful of that, if take a case on contingency I have to believe that there is at least a decent chance of a settlement or payout at the end. As is typical in this region of the country, my cut of any final settlement is around 33%, while my take rises to around 50% if the case heads toward and ends up in trial. There can also be what I call a “mixed contingence” option, where the client pays me a retainer upfront, but my percentages at the end go down. These percentages seem high to some clients, but consider how much I get if we lose…nothing! Contingency in civil litigation is a high risk/high reward proposition. Many attorneys require a retainer up front, ranging from $500-$5,000 to take a civil case. I generally do not, which is part of why my civil practice remains busy while some others are stagnant these days.
I discuss with my clients their definition of “victory”. Depending on their honest and heart-felt answer, I can craft a legal strategy with the greatest chance of getting them there. If it involves getting their job back or a nice severance package, one approach might be appropriate. If a massive monetary settlement or finding is mandated, another strategy altogether might be indicated. This is also where experience with jury findings and knowledge of the “true value of damages” comes in. I can honestly counsel my clients on what they can expect and how much a case is “worth” in the eyes of the federal or state legal systems. Their sense of what a victory looks like also informs out decision down the road if and when a settlement is offered.
The Step 2 Letter
Once your attorney and you decide that civil litigation is the right path, the first step might be what I term a ‘Step 2 letter”. This is a letter under my company letterhead that explains to the other side what trouble they might be in. It specifically explains where my client alleges they perpetrated an offense. Finally, it allows them the opportunity to negotiate a settlement and save both sides the next 12-18 months of civil litigation. Justice happens, but it is not fast. Clients have to realize that if they sue someone, unless the other side settles quickly (which happens in maybe 5-10% of the cases), my clients will be looking at a year or more before they get even close to the end. I have one federal $1M civil case going on two years without sign of a quick conclusion. The Step 2 letter allows a quick and satisfactory ending and is worth an extra month of time to try, as long as my client thinks there is even a chance the defendant-to-be will see the error of his, her, or their way.
The Complaint
Assuming Step 2 fails, which is usually does, the civil complaint is drafted. I will often ask my client to write a bullet-pointed chronology of the events, in as much detail as possible. This does two things: first it provides me with the facts that I need; and second, it forces the client to put in some sweat equity into the work that is coming. With that detail and a thorough review of the case with my client, I am ready to write. I have numerous complaint templates I can use, but the guts of a civil complaint are the causes of action (what the defendants allegedly did), the elements of each cause of action, and the application of the pertinent facts to the elements to make the case for that cause of action. This is where the attorney’s knowledge of the client, the facts of the case, and the appropriate causes of action to include comes into play.
After the complaint is drafted, I always, and I mean always, send the draft to the client to review. In my view, this step is critical. For one thing, I wrote and will file the complaint, but I am speaking for my client, so he or she must be able to stand behind everything in that complaint, to the best of their memory, knowledge, and ability. Once I get comments and edits from my client, I make those changes, collect the filing fee from them, and file the complaint with the appropriate court. If there are federal questions involved, such as alleged constitutional violations like free speech, discrimination, and so on, it goes to federal court. Even if there are State common law torts like negligence involved, the federal courts have first claim under the Supremacy Clause of the United States Constitution. If no federal issues are expected, the Common Pleas Court of the appropriate county is where the complaint is filed. If the value of the claim is small (usually less than $5,000 in total), it goes to municipal Small Claims Court. Most of those are done pro se (by the client themselves) since it is not cost effective to get me involved.
Once the Complaint is filed, the Defendants are served, either via certified mail or personal delivery. They then have roughly a month to file an “Answer”, which is just that. They must affirm, deny, or affirm with comment each and every claim made in the Complaint. Often, there is a time expansion granted, so two months are allowed. Once the Answer if filed, the court takes the case onto docket and calls for a case management conference. At this conference, the opposing attorneys agree with the court to a schedule for the case. The schedule usually deadlines for the completion of: (1) discovery, including interrogatories (questions to the other side), depositions, and the exchange of evidence; (2) mediation, a court-overseen, objective meeting where the two sides can haggle and hopefully decide on settlement (3) a pre-trial conference, where opposing attorneys give an update to the presiding on potential settlement, trial procedure, and the witnesses and evidence to be presented; and finally (4) trial. The plaintiff gets to choose whether the case is tried to the bench (the judge alone) or to a jury. It is usually, not always, better for the “David” to try to a jury, for any number of reasons.
*Editors Note: This post is being presented over three days due to it’s length and amount of detail.
Part Three… 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.
