sexta-feira, 12 de novembro de 2010

An American Lawsuit

Since so many of the authors and readers here are lawyers, I thought it might be interesting to share with you an example of the typical kind of case that I handle.

My involvement with a lawsuit usually comes when a client contacts me. That means that the client is not assigned to me by the court, and I do not try to get the work from the client. The case is almost inevitably a dispute between my client and some other person, and they have not been able to agree amongst themselves how to handle it. In my current job, I mainly handle two kinds of disputes -- disputes about land ownership, and disputes about employment.

I am hired to be the attorney for my client in all phases of the case. This means that I handle the negotiations, the preparations, investigations, trial, and final disposition of the case. I know that in the United Kingdom, a client typically hires a kind of lawyer called a "solicitor" who investigates the case and tries to negotiate a solution to it, and if it doesn't settle, then a different lawyer called a "barrister" argues the case in court. But an attorney in the US is both solicitor and barrister.

Let's say that I've been hired to help out with a land dispute. A typical kind of case might be a dispute about how to dispose of land between a brother and sister after the parents have died. The usual way it happens is that the land is sold to someone else, and the proceeds of the sale are split between the two. But if there is a will, then the terms of the will govern. It cold be that the parent put in the will that the sister is to get 75% of the proceeds, and the brother only 25%. Or the other way around. Or that the sister gets to live in the house for the rest of her life, and then when she dies, the brother gets to own the house and can sell it or pass it along to his children. The parent can do whatever she wants, and the children are bound by those wishes, even after she is dead.

Those are easy cases. More difficult cases come along when the will has not been written in a clear and easy way. If the parent doesn't want to pick sides but also doesn't want the property sold, the parent will often say in the will that both brother and sister can live in the property for as long as they both want. This is a problem because typically, they do not want to live in the house together, but both have a right to be in it. It also means that they cannot sell the house for as long as either of them are alive. The will also does not say who owns the house, just that the brother and sister can both live there. Of course, I only see the cases where the brother and sister cannot work out how to handle the situation on their own, and usually this means they don't like each other very much anyway.

So the parent tries to be nice to both children, but in trying to be nice actually creates a big mess. My job is to clean up that mess.

Since I am an advocate, my job is to try and get the dispute resolved in the fashion most favorable to my client. If my client is the sister, for instance, and what she wants is money more than a place to live (maybe she already has a house of her own somewhere else) then my goal is to get the house sold and the proceeds split. To make that happen, I will write a document called a 'complaint' and file it with the court. Then I need to serve that document on the brother. At this point, my client the sister is called the 'plaintiff' and the brother is called the 'defendant.' When I say 'serve' the document on the brother, that means I hire someone to physically carry the document and deliver it to the brother. Once that happens, the court has power to dispose of the property.

The next step in the process will be to wait for the brother to hire his own lawyer. That lawyer will file more documents with the court. In the complaint, I told the Court what the sister's side of the case is; the brother's lawyer will file a document called an 'answer' that tells the Court the brother's side of the story. The other lawyer and I both read the documents and see what things we agree on and what things we disagree about. We will then write special requests for information and documents and send them to each other. This process is called 'discovery.'

When I get discovery from the other side of a case, I need to set up a meeting with my client. Usually the discovery is a series of questions written by the other lawyer, and a request that we produce all of our documents and other evidence. So, I will sit down with the client and we will go through the questions and answer them as we think is appropriate. There are limits to what we can and cannot say in response to the discovery, and a big part of my job is knowing when we must, and when it is to our advantage, to make objections to some of the discovery. But if I do not do that, my client will have to answer the questions under penalty of perjury.

Another thing that happens is called a deposition. Here, one party has to go to the other attorney's office, and they are recorded while they answer questions under oath. Back in the old days (meaning the 1960's and 1970's) this was all done with a stenographer; a person would sit in on the process and record everything said in a booklet. We still use these booklets a lot, but it's becoming cheaper and easier to also videotape the deposition, so you not only get a written record of what they said, but also their tone of voice and facial expressions when they answer questions.

While all this is going on, I will typically spend some time doing legal research. The law is very complicated and because the U.S. is a common law system, it is not enough for me to look up a few statutes passed by the legislature. I must also research cases that other courts have decided in which similar issues have been addressed, and see how those courts have resolved those cases. I must use my skills as a scholar to understand each of these previous cases and extract the abstract principles of law to see how the court handling my client's case is likely to decide it. This also tells me what kind of information to look for, and I use my own sense of strategy and cleverness to try and find evidence that will fit the court's decision-making process and reach a result that my client would prefer.

By the time the other lawyer and I have done all this discovery and research, and taken the other clients' depositions, we both have a pretty good idea of what the evidence in the case is going to be. We also both have a good sense of our clients' personalities and whether a jury will find them to be appealing or not.  At this point, we are usually in a pretty good position to negotiate with one another and try to compromise the dispute. If that does not work, we will often agree to hire a neutral person, either an experienced lawyer or a retired judge, to be an intermediary and help us reach a settlement. This process is called 'mediation' and something like two-thirds of all my cases settle when we reach this point.

If mediation fails, then we will have a trial. Here, all the people involved go to court. This is really the first time a judge is involved in a serious and deep way with the case. Yes, it's possible that I can make written motions or requests to the court that it deal with the case without trial, but the trial is really the more interesting event.

There is one judge assigned to the case from start to finish, in most parts of the US. The judge oversees the lawyers presenting their clients' cases to the jury, and tells the jury the law from a neutral perspective. In practice, the other lawyer and I confer with each other about what the judge should say; the judge is there mainly to make sure that everything goes in an orderly way. I put my client on the stand and ask her questions, then the other lawyer asks her different questions. Then I put on whatever other witnesses I wish, and both sides ask their questions. Then the other lawyer puts his client on the stand and we keep on asking questions of each others' witnesses until we run out of witnesses. Along the way, we make objections about whether the questions are appropriate under our rules of admissible evidence, and we make arguments in which we evaluate the evidence and compare it to the law, and explain why each of us thinks our client should win.

Then the jury -- usually twelve people -- goes into a room by themselves and tries to decide the case. They will sometimes have questions and the judge will answer them after consulting with the lawyers. Eventually the jury decides in favor of one side or the other, and then the winning lawyer prepares paperwork to make the jury's decision a reality.

There are a lot more things that can happen in the lawsuit, of course, but this is already a long post and I just want to give a big-picture view of how a U.S. court handles a dispute. The whole process is expensive, unfortunately (well, not for me!) and it can take a lot of time. A typical dispute takes about 18 months to get completely resolved.

10 comentários:

Francisco Castelo Branco disse...

Nice description Burt.
Here in Portugal it´s very often people go directly to the court.

if you are a lawyer of one side in the agreement, you can´t be his lawyer on the court?

Transplanted Lawyer disse...

Usually, there is one neutral judge representing the court - the court is an independent entity. Then, there are two sides to the dispute, the plaintiff and the defendant. Those lawyers are advocates for only one side, and both are subordinate to the authority of the neutral court.

So if I represent (for instance) the plaintiff, I appear before the court as the plaintiff's lawyer. I cannot represent the defendant, and I cannot take action on behalf of the court without an instruction from the neutral judge to make sure that the other side is being treated fairly.

Rachie disse...

It was vert interesting to read about an attorney's life in the other side of the world. :)

Seems to me that being an attorney over there is far more exciting and somehow more diverse than being a lawyer here. For me it's important that you really try mediation on the first place and really try to dissect every possible way before you go for a trial. Here, and even though that could be a better and cheaper way out for a country living in such economical crisis, people still decide that the Court should be the first option. For some reason it seems like a friendly agreement doesn't give them the same satisfaction and recognition... Oh well...

In any case, I find the jury trials quite interesting as well. Dunno that much about the way the system works and I still have my doubts about how efficient and fair it can be. It's something that is kinda uncommon here and def. something I'll look forward to read more about before I decide to give a real and more developed opinion.

Well I wrote quite a long comment here, but hey just wanted to say cheers for writing this post with such a practical overview!


Francisco Castelo Branco disse...


like in UK, people first try the solve the problem before go to the court.
It doesn´t happen in Portugal, because people for any reason want to go to trial and they need a Lawyer for every reason. just to pick a sample criminal record.

Differente mentalities!

Rachie disse...

Yeah but the system is way different than in the UK.
It's great to have such pratical overview of they way things work abroad, especially outside Europe, as in Law school we kinda touch upon some of these matters in other EU countries. Plus and since I have the European Law LL.M. it's even more interesting to know a bit more of what happens out there :D

Francisco Castelo Branco disse...

and in the rest of Portugal system are much better than the portuguese.
It is too burochratic

Transplanted Lawyer disse...

Don't get me wrong, we US layers try everything we can do to settle cases before trial, too. It's very expensive and rarely makes economic sense to go to a jury. Plus juries are difficult to predict so there is a lot of risk.

In my practice, about half of my major cases settle at mediation, about a third settle a few weeks before trial, and the rest are either won or lost on pre-trial motions.

Francisco Castelo Branco disse...

i like go to trial, but it´s very expensive....

For everyone, specially for the client.

Larissa Bona disse...

Another fantastic text. I have already worked in the UK as a Solicitor, but I used to work with Criminal Law and Immigration, and I have never seen how they sort out civil matters for instance.

In Criminal cases, the role of the solicitors is to prepare the evidences to help in the defense of the client(documents, technical inspections, inquiries of witnesses and so on). In the end, we have a bundle of documents that we would deliver to the Barrister who is the one who speak on behalf of the client in Court and do the cross-examination.

The Solicitors sit behind the Barristers in Court and write down everything that happens, so after that they can plan the strategy for the trial.

This all seemed very different to me, because in Brazil the procedures are very similar to the Portuguese.

Francisco Castelo Branco disse...

i think the british an american procedure is more efficient than the portuguese and brazilian

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