A. Pre-representation fact gathering. The fact-finding process begins with your initial contact with this office. From that time on, everything that you communicate to this office is strictly confidential, whether it is relayed to an attorney of staff, and whether or not we in fact represent you in your case. Obviously, there is some need to gather initial information from you prior to there being an obligation on either your or our part to pursue this matter through legal recourse. The factual basis you give to our secretary or assistant when you first call in and other initial information will form the basis of the determination of whether or not you have a claim that is legally enforceable. Assuming the determination is that you do have a legally enforceable claim, then we assess what the law will give you to remedy or correct the matter (commonly referred to as damages or remedies), and the likelihood that you will be able to collect or obtain your case goal (commonly referred to as collectibility or enforceability).
Based upon these two factors (whether you have a claim and how likely it is that you will be able to enforce or collect what the court awards you), I will discuss with you what type of fee arrangement, if any, I would be willing to accept to represent you in your case. If the terms are acceptable to you, then a formal attorney fee representation agreement will be executed and my staff and I will begin a vigorous representation of your claim.
B. Post-retainer investigation. Once you have retained BURKART LAW OFFICE by entering into the attorney fees representation agreement mentioned above, our office will begin more formal investigation which will include taking formal written statements of all witnesses, obtaining originals or certified copies of documents, diagrams and other materials as warranted by the case, which will be needed and admissible in evidence at trial.
Depending on the complexity of your case, it may take quite some time to obtain the documents or testimonial evidence to assure a successful court battle. This is because the different and innovative techniques the office and staff use to obtain information may require a great deal of time. It is easier to obtain evidence from the defendant prior to filing suit than after, and because this evidence must be obtained legally, or we may not be able to use it in court, it may take some time before your lawsuit is filed.
We are not likely to obtain an appropriate settlement unless we have the necessary evidence to crush your opponent in court. Opposing attorneys always evaluate how badly they think their client will lose in court. I cannot tell you how long it will take to investigate your case. It usually only takes a few months, however, it may take longer.
Unless there is a deadline for filing the lawsuit in the near future, our office will contact the defendant and attempt to settle this case without a lawsuit. Because most defendants are insured, we will most likely be dealing with an insurance company. Because the claims adjuster's sole loyalty is to his company he is primarily dedicated to cutting the amount his company will have to pay. As a rule, claims adjusters' viewpoint is strictly from the side of the insurance company who has to pay you. Thus, it is important for us to have a strong investigation so that we may deal from a position of strength.
All offers and counter-proposals will be communicated to you with a recommendation of whether to accept or reject. You, however, are the person who must decide whether to accept or reject the offer.
If settlement cannot be reached with the insurance company (or the defendant), then you must file suit.
A lawsuit is started by filing a COMPLAINT and serving summons upon the defendant. A complaint is the legal document filed that states the facts and the law which entitles you to judgment. The defendant takes the summons to his lawyers or his insurance company's lawyers. The defendant's lawyer then usually files a MOTION TO DISMISS your case. You should not be alarmed if this happens since the defendant's lawyer is fulfilling his obligation to his client to test the legal basis of your suit. There are several other motions the defense lawyer may file, but the motion to dismiss is the most common.
The motion to dismiss is decided by the judge by determining whether the law justifies you in filing a complaint under the facts you have alleged in your complaint. The defense lawyer and our office will submit legal authority for our respective positions. This process normally takes 40-90 days.
Assuming the judge has denied the defendant's motion to dismiss, the defendant must then file its ANSWER to your complaint. The answer is the document filed with the court by the defendant in which it either admits or denies the facts contained in your complaint. Those facts which the defendant admits we need not prove at trial. We will have to present proof on those facts that the defendant denies.
Although there are other motions that can be filed, and must be ruled upon by the judge prior to the trial, the complaint and answer are the two documents which frame the case to be presented to the jury.
Supreme Court Rules permit the attorneys of all parties to a lawsuit to "discover" the information the other side holds. In general, unless information is protected by a privilege (such as a communication to you attorney or doctor) it must be produced to the other side. This phase is the most time consuming and usually accounts for most of the delays of getting to trial. Therefore, it is important to provide complete and truthful answers as quickly as possible when presented with requests for information. The following are a few of the discovery techniques. A REQUEST TO PRODUCEis the document filed by one party asking the other party to provide it with true and accurate copies of relevant documents and things in the other party's possession. If you receive such a request to produce, this office can usually comply since you will have already provided us with all things in your possession relevant to the case. If not, we should be advised. Also, you must file a formal document with the court swearing under oath that you have compiled with the other party's request. We will prepare this document for you. (Don't get upset when all this is going on because the other side is having to do the same thing with requests we have submitted to them.) INTERROGATORIES are written questions directed to one of the parties which must be answered under oath. Again a document indicating your answers must be prepared and you must sign it swearing to the truth of the answers. The rule gives you 28 days to return the answers to the other side. However, as mentioned above, the faster we complete discovery, the faster we will get our day in court.
A DEPOSITION is where one party's attorney summons a witness or another party to come before a notary public and answer his questions orally under oath. A deposition is often used in addition to interrogatories because the attorney wants to get more spontaneous answers to his questions and wants to learn how a party or witness will come across as a witness in court. A deposition is also used as a strategic tool to get a party to admit or state something while under oath which will negate their claim or defense.
A less used discovery device is the REQUEST TO ADMIT FACTS. This is used only when there are facts that are undisputed that entitle you to win and your opponent refuses to settle despite these facts. Supreme Court Rules authorize a court to award attorney’s fees if the defendant has no good faith basis for denying properly propounded requests to admit facts and a person is needlessly forced to later proof those facts. Whether to award fees is within the discretion of the court and they are not awarded in every instance.
As mentioned above, each attorney will attempt to obtain statements, admissions or other uncontroverted facts in the discovery phase that will negate the other side's claim or defense. If an attorney believes he has discovered such a fact, then he will present a motion to the judge before the trial begins asking the judge to consider the facts verified during discovery and rule in his client's favor without a trial. The judge will only do this if the fact or facts are uncontroverted and the law requires that judgment be entered when those facts exist. The motion is called a MOTION FOR SUMMARY JUDGMENT.
This process will cause some further delay in getting to trial because, as in the motion to dismiss, the attorneys for both sides submit legal authority for the judge to consider and are given a chance to orally argue their points to the judge. While it is not the usual custom for clients to accompany their attorneys to these oral arguments, you certainly may attend if you wish. However, your presence is not required, and if you do attend you will only be there to observe. In any event, you will be notified when such pre-trial hearings are scheduled. I will not anticipate your attendance unless you notify me before hand.
If the case must be tried, we will ask that it be set on the trial calendar at the earliest possible time. Your testimony and what is expected of you at trial will be explained well in advance of us requesting the trial date. If, for some reason, the judge sets the case on the trail calendar without notice, we will make efforts to avoid a continuance.
Diligence in the prosecution of your claim and keeping you advised of the status of your case is the key to a successful attorney-client relationship. By undertaking the representation of your case, I have committed the office to these goals.
Whether your fee arrangement is hourly or contingency, you will receive a monthly statement showing the number of hours spent and the work performed on your file. These statements provide not only an account of the costs and fees accrued on your account, but also provide an account of work performed so as to provide you a monthly status of your case. Therefore, I ask that you not throw away your monthly statements, rather save them in a file for future reference when you want to know the status of your case.
Additionally, you may receive documents from our office pertaining to your case. We will usually send the document without comment as the document speaks for itself. There may be a red stamped message on such documents to identify them as being sent by us to keep you apprized of the status of your case.
Do not judge the effect a particular fact may have on your case, no matter how devastating or harmful it may seem. Remember, everything that you reveal to me must be kept in strictest confidence. The flip side of the rule is that I must be apprised of the facts no matter how remotely relevant to your case. The reason for this is that I must be prepared to deal with and minimize any unfavorable facts so that the jury disregards them. If I am not apprized of every fact and aspect of the case and the defense attorney finds out by some other means, irreparable harm may occur to our chances before a jury.
Finally, assuming you have decided to retain BURKART LAW OFFICE to represent you, DO NOT UNDER ANY CIRCUMSTANCES, DISCUSS YOUR CASE WITH ANYONE EXCEPT ATTORNEYS AND STAFF OF THIS OFFICE.