Tuesday, 06 April 2010 06:17

Is your case really worth taking to court?

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Taking Legal Action

Is your case really worth taking to court?

You'll be hearing from my lawyer!" This sounds great on television. People with clear-cut complaints hire legal eagles who make mincemeat out of the opposition. And, of course, the good guy always wins. But television isn't real life, and all legal cases aren't quite so simple. Becoming embroiled in legal action can be draining both emotionally and financially. So before contacting a lawyer, take a brief look at what's involved.

What Type of Complaint Do I Have?

In our justice system, complaints come in two categories: Criminal complaints may be signed by victims but typically are brought by a state or federal prosecutor, such as a state's attorney or district attorney, against an individual who has been accused of committing a crime such as theft, arson or murder. Even if you are the victim of a crime, you cannot bring criminal charges yourself. Only a government prosecutor can file such complaints. Civil complaints, on the other hand, are usually initiated by one or more private individuals or corporations against other individuals or corporations to seek compensation for claimed damages or injuries. This is the type of legal action discussed in this pamphlet.

Where Do I Bring My Complaint?

The United States has two principal court systems: federal and state. Generally speaking, your lawsuit may be filed in the federal courts if it involves a question of constitutional or federal law. Other civil matters are usually heard in a state court. Sometimes a suit may appropriately be brought in more than one court. In such cases, a lawyer can usually advise you on the most advantageous strategy.

The federal system is comprised of three basic levels of courts:

The District court is the lowest level and acts as a trial court for the federal system.

The United States Court of Appeals hears appeals from the District courts. There are 12 such courts across the country.

The United States Supreme Court is the highest court in the nation and hears appeals of decisions made by federal Courts of Appeals. It may also hear appeals from the highest state courts, usually in matters relating to constitutional or federal law. The Supreme Court's decisions are final. The court agrees to hear relatively few appeals, so it is not easy to get a case before the Supreme Court.

Each state system has its own court structure, but most have four levels. The first two levels are trial courts, where most cases start.

-A court of limited jurisdiction (municipal courts, justices court, etc.).

-A court of general jurisdiction (circuit court, superior court).

-The State Court of Appeals hears appeals from the state trial courts.

-The State Supreme Court hears appeals from the Court of appeals.

Both federal and state court systems also have certain specialized courts. For example, the federal system has bankruptcy and tax courts. Many states have traffic, family, probate or small claims courts.

Small Claims Court

Many people choose to take their complaints to small claims courts because they are able to represent themselves and avoid lawyers, fees. State small claims courts handle disputes under a certain dollar amount, usually no more than $1,500 to $5,000. You may be able to bring a lawyer to small claims court, but if you are handling your own case (known as pro se representation), follow these steps:

-Obtain a complaint form from the small claims court clerk. The location of the small claims court can be found in the government listings of your local telephone directory.

-Complete the complaint form, stating the name of the party you are suing, the nature of your complaint and the amount of money you are requesting.

-File your complaint with the clerk and pay the required fee (anywhere from $5 to $40).

-Gather all pertinent information such as cancelled checks, contracts and correspondence.

Often in small claims court, the complaint is combined with the summons into one document, which is served on the person you are suing. The complaint outlines your legal claims; the summons tells the other party when and where to appear. This document will also tell you when and where to appear. Generally, you each will have an opportunity to tell your side of the story and to present witnesses. If you bring a complaint in small claims court and the case is transferred to the trial court at the request of the party you are suing, you probably should consider hiring a lawyer. Procedures are more complicated in trial court, and you may be at a disadvantage without a lawyer.

Who Should Represent Me?

That depends upon the nature of the case and the amount of money involved. If you are trying to get back a $500 security deposit from your landlord, it may not make sense to spend the money to hire a lawyer, especially if you are willing to take the time and trouble of pursuing the case yourself in small claims court. On the other hand, if you have been seriously injured and are suing for a large amount of money, you probably should hire a lawyer. The lawyer may accept your case on a contingency basis, which means he or she will get a predetermined percentage of the money you are awarded. If you do not win your case, the lawyer is not compensated. Other lawyers charge by the hour or agree to a flat fee. Even if you hire a lawyer on a contingency basis, be aware that you generally will be responsible for court costs, such as filing fees. Be sure to get your fee agreement with the lawyer in writing.

If you do decide to hire a lawyer, shop around. Ask friends and acquaintances for referrals, or contact the local bar association. If you need a lawyer but can't afford one, you might be able to get legal help from your local Legal Aid Society, a group that, within its limited resources, provides free legal assistance in noncriminal matters (check the white pages of your telephone directory).

Filing a Lawsuit

Filing a lawsuit in a trial court is similar to suing a person or entity in small claims court. There, too, the case begins with a complaint and a summons notifying the party you are suing of the action against them and of the date and time to appear in court. Usually, a local sheriff or process server serves the summons. The party you are suing then has an opportunity to answer the complaint and/or file a countersuit against you. This process of complaint and answer is called pleadings, and once the pleadings are completed, both sides prepare their cases.

The next step in the process is called discovery. This is where each side learns information about the opposing party through sworn oral statements (depositions) and/or sworn written statements (interrogatories). Remember, the opposing party has the same right to question you.

Often, during discovery or at a pretrial conference, an offer of settlement is made. If both parties agree to the terms of the settlement, a trial is unnecessary. Most cases are resolved this way.

If you are unable to reach a settlement, your case will proceed to trial. Generally, if you win your case, you will receive compensation in the form of damages.

The law is a complex process of rules and procedures. If you aren't sure you have a claim or don't know where to file your claim, you should consider seeking legal advice. Even if you decide to represent yourself, some initial legal guidance may result in a more successful outcome.

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