When it comes to dealing with differing opinions, sometimes legal action is needed to help the differing parties reach a conclusion. One way of doing so is by filing a lawsuit with the Court. When filing, the plaintiff hopes to gain something from the defendant. In most cases this may be monetary compensation. Continue reading below to learn more about the process and reasons for filing a lawsuit.
WHO CAN FILE A LAWSUIT?
If you have been wronged by someone in some way, you have the option to file a lawsuit against them. One common reason for a lawsuit is a creditor filing against a debtor who owes them money. If you owe money to someone and have fallen behind on an agreement made to them, filing a lawsuit will allow them to receive a court order for their repayment. Creditors may choose to pursue this in several methods.
Creditors may choose to gather money owed to them through a wage garnishment. In order to do so, creditors must receive a garnishment order from the court, allowing for employers to deduct an amount from your paycheck and pay that money directly to the creditor.
Creditors may also choose to place a levy on your bank account. In order to do so, creditors must be granted a money judgment from the Court. A money judgment dictates a creditor’s to money owed by the debtor and enables them to take action against the debtor. If the debtor fails to appear in court or comply with the trial, this may result in the creditor obtaining a default judgment. Once this has been granted, a bank levy will prevent you from being able to withdraw money from your account. Instead, creditors will have access and be able to transfer money out of the account.
In order for a lawsuit to successfully be filed, the plaintiff must prove that there was some form of a contract between the plaintiff and defendant. While a written contract works best, a verbal contract may also be successful. Additionally, you must be able to showcase that you completed your part of the contract and the defendant has failed to keep up with their end of the bargain. By doing so, the plaintiff will showcase that the defendant’s breach of contract has had a negative effect on their life.
FILING A LAWSUIT
In order to file a lawsuit against another party, you first must file a summons and complaint with the court. A summons is a document sent to the defendant, stating who the plaintiff is and that a claim has been filed against the defendant. It informs the defendant of who is suing them, the case number, and where they are expected to report for trial, if applicable. The complaint documents the claims the plaintiff is making against the defendant, along with the amount of they wish to receive from the defendant at the end of the lawsuit. Together, the summons and complaint provide the defendant with an overview as to why the plaintiff is filing the lawsuit and what is expected of them.
In order for the lawsuit to go into effect, the defendant must be served with the summons and complaint. Once the defendant has physically received the summons and complaint, they will have 30 days to respond to the Court with an answer. An answer is the defendant’s chance to address the allegations being made. They will then have the opportunity to demonstrate that the claims are false and may even choose to file a counterclaim against the plaintiff. Failure to respond in 30 days may result in the Court’s decision to issue a default judgement generally in favor of the plaintiff.
AFTER THE DEFENDANT PROVIDES AN ANSWER
Once the defendant has given the Court an answer within the 30 day limit, the next stage of the process is gathering evidence, also known as discovery. During this time, both the plaintiff and defendant have the opportunity to gather material that may be used in their defense in the trial. In general, this is the most time consuming part of the process.
In addition to physical material, discovery may also include interrogating any witnesses whose purpose is to confirm the information you are claiming to be accurate. If you do choose to question any witnesses, the opposing party has the right to question them as well in hopes of discovering any inconsistencies. A party may also choose to bring in an expert to provide the court with information about a specific area of interest that they may not be familiar with.
Once all discovery has been made, the plaintiff and defendant may also take this time to file any pre-trial motions they feel are needed. The purpose of a pre-trial motion is to ask the court address certain issues beforehand that could potentially have an effect on how the rest of the trial plays out. Examples of pre-trial motions include prohibiting specific evidence, requesting a summary judgment, requesting the trial take place in a different court, or even filing a motion to dismiss the lawsuit altogether. After this window has ended, the trial can officially begin.
DURING THE TRIAL
Once the trial commences, the plaintiff and defendant will both take turns presenting their case, including providing the court with the evidence collected during the discovery period. Witnesses may be brought in for questioning by both parties. The Court will listen to both arguments. Once all evidence has been presented and each party has made their remarks, closing arguments will be presented. From here, the Court will use the information provided to reach their final verdict.
If the Court’s ruling is in favor of the plaintiff, the defendant will be ordered to pay the plaintiff the amount listed in the summons and complaint, or whatever amount was agreed upon. However, the defendant is not expected to pay the plaintiff right away. Instead, the plaintiff receives their money through various payment methods over time. It is important to note that the Court will not be involved in ensuring the plaintiff is receiving the owed money from the defendant.
ALTERNATIVE DISPUTE RESOLUTION
Filing for lawsuit does not always require you to take the defendant to trial in court. In some cases, you may be able to work the issue out directly with the person. However, if this is unsuccessful and you are still looking to avoid a trial, you may consider a method of alternative dispute resolution (ADR). ADR provides you with the opportunity to resolve matters quicker and usually cheaper than a traditional trial.
The following are examples of ADR:
Mediation involves the usage of a neutral third party who is trained to act in place of a judge in these scenarios. The mediator will have the opportunity to speak with each party individually. Together with both the plaintiff and defendant, they will be able to reach an agreement. In most cases, this can be successful and allow for a settlement. The mediator may not always get both parties come to an agreement. In this case, the lawsuit would then be continued in a trial.
In order for mediation to be successful, it is important for the involved parties to be willing to go through the process and show active involvement. This means attending any meetings and being prepared with all documentation that is relevant to the case. It is also important to be respectful and listen to the opposing party’s remarks. Since the goal of mediation is to reach some sort of agreement, both the plaintiff and defendant, in a way, are working together to get there. Lastly, it is crucial that you are patient throughout the mediation process. Medical can potentially be completed in half of a day, but in some cases it may last the entire day---or even multiple days.
Despite not being a formal trial, mediation occurs in the following steps:
- Opening Statements: The mediator will begin the process by making their opening statement. Generally, this involves introductions of everyone present and the purpose of the meeting. Once finished, both the plaintiff and defendant will give their opening statements.
- Discussion: Once opening statements have been made by both parties, each has the opportunity to discuss what the other has said. This includes asking clarifying questions or any details that they may have omitted.
- Private Caucuses: After the discussion period has concluded, the mediator will speak with each party individually. During this stage, the mediator begins to present offers in an attempt to start reaching an agreement.
- Conclusion: After the mediator has made negotiation attempts and has hopefully gotten both parties to reach an agreement, the mediator will require the plaintiff and defendant to sign off on documentation of the agreed terms.
Mediation is a quicker and more cost effective alternative to trial that is continuing to gain popularity. With the ongoing COVID-19 pandemic, mediation has proven to continue being successful through the usage of programs, like Zoom. This allows for the mediation process to be executed the same as if it were in person.
Similar to mediation, arbitration uses a neutral third party to oversee the case. Instead, however, the arbitrator holds their own informal trial. Similar to a trial, both parties will present discovery to the arbitrator. After hearing both parties, arbitrator will issue a decision. The decision may be binding or non-binding. A binding decision means that the plaintiff and defendant must follow the arbitrator’s ruling. It cannot be reviewed by the court. A non-binding decision means that unless both parties accept the arbitrator’s decision, they are not required to follow it. This will then allow for the case to go to trial.
In some cases, arbitration is chosen due to an existing arbitration clause within the breached contract. While most clauses simply state that arbitration will be used, some may go into further detail discussing how the arbitration will occur.
Arbitration is beneficial for several situations. In addition to being a cheaper alternative than a trial, it is also quicker. It is much more likely that you will be able to schedule your arbitration meetings sooner than if you were to wait for your trial to take place in court. However, as previously mentioned, if the arbitrator issues a binding decision, the ruling is final and cannot be reviewed by the court.
A settlement provides the plaintiff and defendant with alternative method of meeting with a judge. To do so, a settlement conference is held where each party has the chance to discuss with the judge. Usually, each party’s attorney will present their case in place of the client. Here, the judge presents both parties with offers and/or counteroffers in hopes of reaching an agreement. If successful, the two parties will settle, and the case will be dismissed. If unsuccessful, the lawsuit will continue on in a trial. In some cases, however, the judge may suggest a settlement conference once more. If done, this provides the opportunity to look for any other evidence that may help work towards a settlement.
There is no time limit for which you may choose to pursue a settlement. While it is possible to consider a settlement in the midst of a trial, it is usually beneficial to do so prior to a trial in order to save time and money.
THE AUTOMATIC STAY
If you are in the process of filing for Chapter 7 or Chapter 13 bankruptcy, you will be protected from any lawsuits that may arise against you. This is thanks to the Automatic Stay. Upon filing for bankruptcy, the Automatic Stay takes action and protects you from any new legal action being taken against you. This includes any lawsuits that are currently occurring upon your initial filing, as well as those filed during your bankruptcy case, including creditor lawsuits. Once your bankruptcy filing is complete and the Court has issued a discharge, any outstanding lawsuits will also be eliminated.
HOW CAN WE HELP?
Dealing with a lawsuit can be a difficult process to go through alone. If you have just been served with a summons and complaint or fear you soon will, contact us today to begin discussing your case with attorney Pauldeep Bains. Together, he will be able to use his experience with dealing with creditor lawsuits to determine what your best course of action may be and help prepare you regardless of which method is pursued.
Sacramento Bankruptcy Lawyer helps clients in the following areas: Sacramento, Elk Grove, South Sacramento, West Sacramento, Natomas, Citrus Heights, Antelope, Fair Oaks, Gold River, Rancho Cordova, Roseville, Rocklin, Lincoln, Wheatland, Yuba City, Marysville, Woodland, Davis, and Lodi.