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Wooten Honeywell News Briefs –
Vol. 4
Your Court Case from Beginning to End
The following are the first of an eight-part series outlining a basic court case from beginning to end. Each part will explain the process, define some of the terms used in court documents, and give details as to the expected results.
Note: This material is provided for informational purposes only and should not be taken as formal legal advice.
Meeting With a Lawyer for the First Time: What Can You Expect?
Your first meeting with a lawyer after being involved in an automobile accident or being injured is the first chance you will have to learn whether there are any legal remedies available to you for your injuries. You will also have an opportunity to ask the lawyer any questions you may have.
The lawyer will want to go over the details of each of the following:
- How you were injured;
- Extent of your injuries;
- Medical treatment received to date;
- Past medical history; and
- Any previous accident, injuries, or claims of any kind
You should come to the meeting prepared with the information above and any other information you think will be useful to the lawyer in evaluating whether you have a potential personal injury claim and whether they will be able to provide assistance. Being prepared means bringing the following:
- Copy of accident or incident report, if any;
- Names and addresses of witnesses, if any;
- Names, addresses, and phone numbers for ALL doctors whom you have seen for this injury;
- Copy of your car insurance declaration page OR at least your car insurance policy number;
- Copy of your health insurance card, if any;
- Photographs and repair estimates of property damage to your automobile;
- Photographs of your injuries, if any.
You should also prepare and bring a written list of all your questions, so that you do not forget to ask the personal injury lawyer all of the questions you have.
The first meeting will take anywhere from thirty minutes to one hour. If the lawyer has all the information needed and thinks you have a potential personal injury claim, he/she may review with you the Authority to Represent Contract. If you feel comfortable with the lawyer and would like for he/she to represent you then you can sign the Authority to Represent Contract at the initial meeting. However, depending on the extent of materials provided, the lawyer may tell you that he/she will review all of the information provided and get back to you shortly with an answer on whether or not he/she can represent you.
Before entering in any Authority to Represent Contract with the lawyer, be sure that you are comfortable with the lawyer and that he/she has been able to answer all your questions. You should also be sure that the lawyer has gone over the fee agreement in detail and that you fully understand the scope of your legal representation.
Remember, the selection of a law firm to represent you should not be a casual decision. It should be based on a combination of factors, including the firm’s experience, knowledge, concern, responsibility, and their depth and strength to support a sustained effort on your behalf. So do not be afraid to ask the lawyer about his/her legal experience and credentials before you make your selection.
Beginning the lawsuit through initial court papers
Civil cases make up most of the cases filed. The parties in a civil lawsuit are called the plaintiff and the defendant. The plaintiff is the party bringing the lawsuit against the defendant.
The lawsuit is started by filing a document called a complaint with a court, along with the filing fee. The complaint states what the lawsuit is about, why the defendant is responsible and the remedy the plaintiff is requesting, usually money damages. After the complaint is filed with the court, a summons is issued by the clerk of courts. The plaintiff must serve a copy of the complaint along with a summons on the defendant. A summons is an official court document notifying the defendant to answer the complaint within a specified time period of 20 days. If the Defendant does not file an answer within the time period, a default may be entered against the defendant.
The defendant’s written response to the complaint is called an answer. The answer admits or denies the allegations stated in the complaint. It also states any defenses to the complaint. In some cases, the defendant will first file a document called a motion to dismiss the complaint, instead of an answer. A motion to dismiss sets out reasons why the defendant believes the complaint is defective and should be dismissed. The Judge will rule on the Motion to Dismiss and if the motion is denied the defendant must then file an answer to the complaint.
Sometimes the plaintiff will file a document known as a reply responding to the defendant’s answer. A reply states responses the plaintiff has to any defenses raised by the defendant in the answer.
These are the basic court papers at the beginning of an uncomplicated lawsuit. Many lawsuits are more complicated and may require court hearings to change the complaint and answer filed before the documents are final.
A steadfast principle in the American Legal System is that there should be as few surprises as possible throughout the course of a lawsuit and trial. The method by which surprises are minimized is through the discovery process.
Discovery means compulsory disclosure, at a party”s request, of information that relates to the litigation. The discovery process is the method of fact finding and investigation used by the parties and their lawyers during a lawsuit. Generally, this fact-finding does not begin until the commencement of a civil or criminal action.
The scope of what is discoverable is much broader than what is admissible at trial. The fact that information is revealed during the discovery process does not necessarily mean the Judge at trial will permit the presentation of that information to a Jury. Generally, information about the parties, witnesses, and otherwise regarding the case may be revealed through discovery if:
1. It is relevant to the case or could lead to admissible evidence; and
2. It is not protected by a privilege (such as lawyer/client, or accountant/ client).
This is much different than what is admissible at trial. The scope of what is admissible at trial is much narrower. The evidence presented at a trial is governed by a Code of Evidence. The Code mandates that evidence must be relevant. It also lays out many other policy considerations concerning the reliability of evidence, all of which should be analyzed and met prior to the evidence being presented in Court.
Objections to discovery requests are very limited. If the information sought is relevant, could lead to admissible evidence, and is not protected by a privilege, the information is probably fair game during the discovery phase of your case. The only proper objection an attorney can make to a discovery request would be if the request was unfair, difficult to understand, or unreasonable.
There are four basic forms through which information is revealed through discovery:
1. Written Discovery;
2. Production and Inspection;
3. Examination of a Person’s Condition; and
4. Depositions
We will discuss each in further detail.
1. Written Discovery refers to interrogatories and requests for admission. Interrogatories are questions asked by one party generally to the opposing party requesting responses concerning the facts and circumstances of the case. There are three types of interrogatories: standard, form and special. Standard interrogatories are questions that have been approved by the Court, typically the Supreme Court in the jurisdiction. Form interrogatories are questions that are typically asked in any case. Special interrogatories ask specific questions concerning your particular case. Special interrogatory questions can be very general; for example, "Describe the events leading up to your accident.” On the other hand the questions can be very specific, such as “Is it your position that the change in elevation from the curb to the sidewalk was an optical illusion which created an appearance of flatness, and that is why this condition was dangerous?”
When responding to these questions, it is important to make sure you are honest, complete, and respond only to the question that is asked. Your response should be in general terms. You do not want to paint yourself into a corner at the outset of your case with a response you give to an interrogatory. If the questions asked are not fair or are difficult to understand, your lawyer will help you decide when and where to object as well on what grounds to place the objection.
Requests for Admission are one party’s request that the opposing party admit or deny certain facts pertaining to the case. Requests for Admission carry severe penalties for not answering, answering falsely, or even answering late. Should a party not answer a requests for admission, the request may be deemed conclusively admitted. If admitted, the judge may allow that request to be read to a jury at trial.
2. Production and inspection refers to gathering information through the turning over of documents, having the information available for inspection or allowing entry onto land for inspection. A party has a right to see most documents that arguably relate to the case. As cases become more complex and documents involved become more voluminous, courts are increasingly allowing access to computer files and CDs as part of document discovery. In some limited cases, courts have even allowed litigants to reconstruct deleted computer files in document discovery. Sometimes, as a result of voluminous documents, parties may permit the other party to inspect the documents at a set time and place. Other times it may be necessary to enter onto the land of another to view the scene of an accident or for some other reason important to the case. The discovery process allows for entry onto the land of another to conduct this inspection.
3. Examination of a Person’s Condition refers to the compulsory examination of a party, usually the Plaintiff, by the opposing party. This examination is generally conducted when the physical or non-physical condition of a party is at issue in the case; for example, whether a person is injured or to what extent the injury effects a person’s life. An expert in a particular field, usually a particular area of medicine, will be hired by one party to examine the condition of the other party. Sometimes these examinations last fifteen minutes. Sometimes they last over an hour. Your attorney may consider being present at the examination or documenting it through a videographer or a court reporter.
If as a part of your case you are required to attend one of these examinations with a medical doctor or mental health specialist, there are a few things to remember:
1. Do not fill out an initial patient questionnaire. These questionnaires inquire extensively into your medical history and about your physical condition. Since you will not be a treating patient with this expert, there is no need to fill out the initial paperwork. This will prevent inconsistencies in the paperwork from being used against you in your case.
2. You will likely be required to give a brief medical history. However, you should not answer extensive questions regarding the issues and merits of your case other than to describe the impact, your injury and continuing problems. Your deposition is the proper time for you to be asked questions.
3. Make sure to let the examiner know of each of your physical complaints. Do not assume that the examiner for this one-time examination has reviewed your medical records.
4. Depositions refers to testimony of a witness developed through the questions of attorneys, taken under oath and memorialized either by video, a typed transcription or both. Depositions can range in length from an hour, to several days, to a week or more. Attorneys often have different strategies for depositions.
However, there are three main reasons depositions are taken:
1. Lock in a witness’ testimony;
2. Gather information from the witness; and
3. See how the witness presents them self and handles questioning by an attorney.
Reason #3 may be the most important as a deposition is a great way for an attorney to try to determine how this witness will appear to a Judge or Jury. It is critical that you stay calm, cool and collected in order to make a good impression at your deposition. Do not get mad. Do not let the opposing attorney rattle you. Your attorney should extensively prepare you for your deposition. But generally, there are two things to remember:
1. Never guess. The purpose of the deposition is to gather facts, not to speculate or guess as to what might have happened. Many times “I do not know” is the best answer to give at a deposition where otherwise your answer would be a guess.
2. The other thing to remember is that it is human nature to want to explain things so that your listener understands you. However, this natural tendency can get you into trouble during a deposition. Often times the more you explain, the more you hang yourself. It is important that you only answer the question that is asked. It is the opposing attorney’s job to get the answers and ask a follow-up question if he or she wants additional information. Do not volunteer information.
There are some important things to remember about discovery:
- Remember - it is very likely that anything and everything can come out through the discovery process. It is important that you are honest with your attorney about the facts and documents that may come out through discovery. Your attorney can only do a proper job if you disclose everything.
- Discovery can be lengthy, expensive, intrusive, and frustrating. You should weigh the consequences of opening your life up to the scrutiny of the discovery process prior to making a decision as to whether to begin a lawsuit.
- Be honest. Lying during the discovery process could lose your case. Any lies, even inadvertent inconsistencies, will surely be presented during your trial and used to attack your credibility in front of the jury. It is imperative that you are honest and that you do not guess.
By following the advice above and playing it smart through the discovery process, you may be able to minimize surprises during your case and prevent innocent inconsistencies from being used against you.
Firm Highlights
Mr. Wooten elected President of ABOTA
Council Wooten has been elected President of the Central Florida Chapter of American Board of Trial Advocates (ABOTA). Membership in ABOTA is by invitation only to trial attorneys who have demonstrated excellent trial skills while maintaining the highest levels of professionalism, integrity, honor, and courtesy. Their mission is to “foster improvement in the ethical and technical standards of practice in the field of advocacy to the end that individual litigants may receive more effective representation and the general public be benefited by more efficient administration of justice consistent with time-tested and traditional principles of litigation.”
On February 28th the Central Florida Chapter of ABOTA held it’s first meeting of 2007 at the offices of Wooten, Honeywell, Kimbrough, Gibson, Doherty & Normand. Judge Faye Allen, Orange County, Florida, was guest speaker and provided information to the members regarding the educational initiative of Florida Supreme Court Chief Justice R. Fred Lewis. The ultimate goal of this statewide initiative, known as Justice Teaching, is to pair a legal professional with every elementary, middle, and high school in the state of Florida.
Bishop John W. Howe names Mr. Wooten as Chancellor
The Rt. Rev. John W. Howe, Bishop of the Episcopal Diocese of Central Florida, has again named Council Wooten, Jr. as Chancellor, a position he has held since 1989.
Ed Normand admitted to MENSA
In April 2007 Mr. Normand was admitted to the international MENSA society. The society was founded in 1946 in England and “welcomes people from every walk of life whose IQ is in the top 2% of the population. MENSA has three stated purposes: to identify and foster human intelligence for the benefit of humanity, to encourage research in the nature, characteristics and uses of intelligence, and to promote stimulating intellectual and social opportunities for its members.”
Previous Newsletters
- Wooten Honeywell News Briefs – Vol. 1
- Wooten Honeywell News Briefs – Vol. 2
- Wooten Honeywell News Briefs – Vol. 3
- Wooten Honeywell News Briefs – Vol. 4
- Wooten Honeywell News Briefs – Vol. 5
- Wooten Honeywell News Briefs – Vol. 6
- Wooten Honeywell News Briefs - Vol. 7
- Wooten Honeywell News Briefs - Vol. 8
- Wooten Honeywell News Briefs - Vol. 9
- Wooten Honeywell News Briefs - Vol. 10
- Wooten Honeywell News Briefs - Vol. 11
- Wooten Honeywell News Briefs - Vol. 12
For More Information About Our Firm, please see:
Credentials / Community Involvement/Our Attorneys
Orlando Personal Injury Lawyers
(800) 235-7060
Wooten, Honeywell, Kimbrough, Gibson,
Doherty & Normand
Professional Association
236 S. Lucerne Circle at Delaney
Orlando, FL 32801