Being a party to a lawsuit is perhaps one of the most stressful and confusing events a person will face in life. Often you will be faced with having to pay out potential large dollar amounts, incurring criminal penalties or other serious repercussions that have major impacts on your day to day life. Even when represented by legal counsel you will encounter terms, proceedings, and requests phrased in unfamiliar or intimidating legal jargon. Not having a thorough understanding of these various proceedings and official labels can add anxiety and uncertainty to an already complicated situation. Here we unwrap and explain the most common legal proceedings and how they each affect your obligations differently when involved in a legal proceeding.
If you watch cable legal dramas, you may think that the only type of information presented at trial comes courtesy of a briefcase, file folder or police evidence bag. In reality, the evidence presented at trial can come from a variety of sources, including proceedings that occur before trial called depositions. A person can request a deposition to take an official, on the record statement from a witness or party to civil litigation. These statements can be used at trial. A deposition is sworn testimony. A court reporter will be present taking down everything you say. As a rule of thumb, don’t answer anything other than what is asked. A deposition is like a conversation, but in many ways it is not a conversation.
The statements made during a deposition are instead given the same weight as a person’s in-person testimony in front of a jury. Depositions can help flush out issues, commit the deponent—the person speaking—to certain positions, and clear up questions. Participants of a deposition may have a personal injury lawyer on present. The lawyer will object when appropriate but generally is not allowed to speak during the deposition. Refusing to participate in a deposition can lead to a person being sanctioned, forced to attend, or paying the other side’s legal and court fees. Generally, depositions can last from as short as 5 minutes to as long as 7 hours, sometimes more if the court allows for it.
You must prepare for your deposition. Your lawyer should schedule a time to help you prepare. Generally, what you and your lawyer discuss is privileged however and the other lawyer cannot ask you what you talked about. This is called the “attorney-client privilege”.
In some legal disputes, the parties may be able to reach an agreement without the need for a trial. Judges will often assess the specific case and the positions of the individual participants and order the parties to participate in traditional mediation. Other times parties may willingly agree or ask the other side to attempt mediation before progressing to trial.
Traditional mediation involves both the plaintiff and defendant attending the mediation to present their facts and arguments to the other side in the presence of a neutral, third party mediator. This mediator will not decide the case but instead attempts to work with the parties to help them resolve their differences and come to a mutual understanding. The compromise is documented in a mediation agreement which, when signed by the parties, binds each side to a specific result.
Mediation may not work for all cases and has the best results when the parties are open-minded and willing to listen to the other side’s point of view. Participants bring their lawyers and the lawyers make the arguments. Sometimes an expert or other witnesses may attend as well. Mediations cost much less than trials and can often help reach a better resolution for all involved parties. When mediation begins, the mediator will separate the parties (and their lawyers) to separate rooms and shuttle offers and ideas back and forth until a resolution is reached. Everything discussed in mediation is confidential, though a mediator may be forced under rare circumstances to disclose. Generally, however, all settlement discussions are confidential and cannot be disclosed to a jury if the mediation proves unsuccessful.
The trial phase is the culminating event of any legal proceeding. If mediation or other alternative dispute resolution fails to help the participants reach a consensus on their dispute, the case will proceed to trial. During the trial, both sides present the evidence collected beforehand to a panel of jurors or legal judge who will rule based on the facts presented. There is no “trial by ambush” like you see in the movies. Each lawyer must disclose the evidence to the other side in what is called “discovery”. Generally, discovery lasts for 6 months from the date that the defendant’s Answer (response) is filed. Discovery can be extended or shortened either by agreement of the lawyers or by a court order.
Depending on the issues at hand, trials can span days or even weeks. At the end of the case, a verdict will be made for one or the other party, and the judge will “enter” the verdict. Participants at trial are typically represented by one or more attorneys but can also represent themselves. The legal term for self-representation at trial is “Pro Se.”
Whichever legal proceeding you may be facing, being armed with the knowledge of the process can provide comfort when faced with a lawsuit. If you are involved in a lawsuit, you are entitled to consult with an attorney who has specialized knowledge of the processes and procedures you will be facing.