What Do You Know About Case Flow?
A common question from prospective clients to an attorney is “what are the steps in handling my case?” A great question which can lead to a different answer depending on the nature and location of the case in addition to other factors. In looking at the flow of a case the following are the typical elements one may find although in varying order if even applicable:
Interview: Prospective client meets or connects with attorney and a discussion ensues about the issues and objectives of the client and whether/how the attorney may assist the client. Should be a full and frank discussion so both parties can make an informed decision about the advisability of an attorney-client relationship. The interview and its contents are held in strict confidence so as to protect the prospective client even if no representation actually occurs.
Representation: Usually involves attorney and the new client signing of a contract or the attorney sending a letter of engagement to the new client. Should cover the essential terms of the attorney-client relationship which is being formed–communication, fees and expenses, cooperation and work-sharing. Depending on the nature of the financial arrangement between the parties the client may provide payment to the attorney to commence work on the case.
Investigation: A modified version of this may occur before an attorney agrees to represent a prospective client. Due diligence often requires the attorney to check public records, court files, agency records, billing statements, contracts, correspondence, and other case-related items to which the attorney or client can obtain access. The primary purpose of investigation, especially one that occurs early during the relationship, should not be to create a case narrative but instead to learn all relevant facts and information so attorney and client can better determine the viability of certain claims and defenses and what people and things may exist to support such.
Preparation: In injury and property damage cases the attorney and client will work together to obtain all relevant records, bills, diagrams, photographs, statements, and other evidence supporting the claims or defenses to be asserted. At this stage the acquisition of information often serves as a double-check of the things revealed during the investigation.
Settlement: Often a package of information is sent to the opposing side along with a demand/position letter seeking to arrive at a resolution of the case without resorting to protracted litigation. Settlement usually emphasizes the value of certainty of results, closure, and cost-containment. Not every case can be settled but in the vast majority it is worth making the effort to do so. Even if a full case resolution cannot be reached the settlement discussions could result in the whittling down or elimination of some issues.
Litigation: Usually indicates the filing of a lawsuit a/k/a a civil action in court, federal or state. In administrative matters such as workers’ compensation or certain employment contexts, the litigation is commenced via a petition or administrative complaint. The litigation process can be lengthy and may involve some or all of the following:
Arbitration–Process which typically involves a scaled-back version of discovery (exchange of documents, information, and testimony between opposing sides) and an eventual hearing in front of one decision-maker or a panel of decision-makers. May be binding and is often mandated in disputes over defective vehicles (i.e. lemon law), credit cards, and other consumer matters. Costs can be divided evenly or unevenly or not at all depending on whether the arbitration is per statute or per an agreement between the parties.
Mediation–An event in which the parties present their respective arguments, documents, and other potential leverage points to a third-party neutral who seeks to aid the parties in coming to a settlement of all case issues. Mediation is mandatory for many civil cases. Unless otherwise stated by statute or the relevant arbitration agreement, the costs of mediation (i.e. mediator’s fee for time) are typically evenly divided among the parties.
Deposition–a means of parties obtaining testimony from other parties, witnesses, and those who have information relevant to the case. Attorneys can use either a notice of deposition (for parties) or a subpoena (for non-parties) to compel attendance at a deposition which is a question-and-answer session which is voice-recorded and transcribed by a court reporter. Some depositions are videotaped. Often the costliest component of litigation, a deposition is considered vital in many cases and can be an effective tool for discovering more facts—good, bad, and ugly—about one’s case.
Trial–The last stop for asserting arguments, claims, and defenses. Can be a jury trial or a bench trial (no jury; just a judge) and usually involves the creation of a formal record called a transcript. The transcript is used in the event a party seeks to appeal from the trial outcome. Usually should be handled by an experienced lawyer as this is not Judge Judy or The People’s Court (unless you are in Magistrate’s Court a/k/a Small Claims Court.) The case plan usually is designed to prepare for a trial even if one never actually occurs.
Appeal–Comes after a final result is entered in a case be it a jury verdict or a dismissal of one’s claim(s). Appeals are highly technical creatures and courts of appeal have particular rules for everything from the content to the font to pagination and format of the appeal documents so it is HIGHLY DISCOURAGED that a non-lawyer handle his or her own appeal. Some lawyers do not even handle appeals and recognize the specific experience and attention to detail required to properly handle them. Appeals are not cheap either and “I lost….that’s not fair” is not nearly enough of a reason to undertake the filing and pursuit of an appeal. Consult with an attorney before even filing a Notice of Appeal and preferably you should have had legal representation long before your case is at the appeals phase.
Note this post, while lengthy, was meant to provide an overview of some of the more common points in the lifespan of a legal matter. If you have particular questions contact an attorney for a consultation. Best wishes to you and with your case.
- Posted in: Attorney-Client Relations
- Tagged: Answer, answers, appeal, arbitration, attorney, bench, client, client intake, complaint, confidentiality, costs, deposition, due diligence, fees, filing, interview, investigation, judge, jury, lawsuit, lawyer, mediation, motion to dismiss, preparation, questions, settlement, subpoena, trial