Many clients come to us and say, “Well why can’t I just go before a judge and tell my story? I can do that right now. They will get it.” What the client is actually referring to there is “due process.” Due process is the Constitutional right that the American government operate within the law and provide fair procedures. Or in other words, “getting your day in court.” Our client will get their day in court, but so does the other side. Before the sides get to go before a judge or jury to tell their story, a lot of things must happen. The first of which is preparation up to and including the filing of the lawsuit.
In all states, it is unethical for an attorney to sign their name to documents they do not believe have evidentiary support or can demonstrate support once there has been further investigation. This means that attorneys have an ethical obligation to conduct what is called due diligence before a case. Due diligence is defined as “reasonable steps taken by a person in order to satisfy a legal requirement.” But it is not just fulfilling an ethical obligation. Sometimes due diligence can turn up information that can help a case be resolved quicker; or unfortunately, it can also demonstrate that where it appears a case has merit, that it will be defeated and could expose the client to liability.
In the first stage after a client has retained the services of a law firm, the lawyer goes on an initial fact finding mission with the client: the who, what, where, when and how of the case. This is to first get the backstory, but then also to pinpoint where there needs to be further investigation. For example, were there witnesses? Are there documents that need reviewing? Pictures? Correspondence? Medical records? Police Reports? What is the case law? What kind of expert witnesses will we need? Sometimes important information such as witness names, locations, police reports, or documents may need to be obtained down the road and are not available at the outset of the litigation. This can affect the timeline of how an attorney approaches a case.
Here are some examples of the pre-litigation stage. First, let’s say that a shopper slipped on a puddle at a grocery store and sustained significant injuries. There were no signs and video footage shows several employees failing to act. The injured shopper retains an attorney and the attorney is able to secure the video footage and make a demand to the insurance company before filing a lawsuit. On certain occasions, the insurance company will admit liability and the negotiation becomes about the dollar amount for the injuries sustained. If the two sides can reach an agreement, this significantly reduces time when a settlement is paid (a normal lawsuit can go between 12-24 months).
In another example, a hiker was on a pathway in a public park and tripped and sustained serious injuries. The rock could have easily been removed from the pathway. The attorney signs up the client and begins doing legal research on the case and finds the “Recreational Trail Immunity Statute.” This law provides immunity to public entities for injuries incurred on paved or unpaved walkways and trails (Government Code Section 831.4). Thus, because of the attorney’s research at the outset, it was found that no case existed due to the immunity. If the attorney took the case and lost, it is possible the client could end up owing money to the other side after trial.
It is more than an ethical obligation for an attorney to do their due diligence before filing a lawsuit—it’s just smart. By using the adage, “measure twice, cut once,” and doing work up front instead of rushing to file (admittedly, there are exceptions to every rule and sometimes the statute of limitations dictates this), lawyers are able to get better results for their clients.
Once the initial due diligence is completed and lawsuit filed, the opposing party must be served a copy of the lawsuit. Upon being served with the lawsuit, the opposing party or parties have 30 days to respond. There are a few different types of responses, but the main two are a “demurrer” and an “answer.”
A demurrer is a motion where the defendant basically says “you don’t have a claim.” Either the facts alleged don’t meet the standard necessary or there may be a legal defense to the claim (the trail immunity statute above would be an example of something that would likely be successful).
An answer is a response by the defendants where they will admit, deny, admit in part, or deny in part.
Each of the above types of responses has strategical variables associated with them. Typically, in a personal injury action the defendants will respond with an answer. However, this depends on the exact circumstances of the case.
Next up: Litigation Timeline Part II: Discovery
