We know you have questions. We have your answers.
*These responses cover most but not every scenario. If you have additional questions or want to discuss your individual case, feel free to contact Curry, Pearson & Wooten P.L.C. We are here to help you.
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How is the litigation process started?
One commences legal action by filing with the Court a "Complaint." A Complaint is a legal document normally created by legal counsel which alleges the various wrongs committed and specifies the relief desired, usually a monetary reward. The Complaint is subject to rigorous requirements and, if not properly drafted, it may be objected to by the responding party ("Motion to Strike," "Motion to Dismiss," etc.) and the Court may dismiss the action or require the pleading to be amended. The party bringing the action is called the Plaintiff. The party defending is the Defendant. Should the Defendant seek its own relief against the Plaintiff, then the Defendant may file in the same action its own Complaint which is called a "Counter Complaint."
What is the discovery process?
Discovery usually consists of serving requests for production of documents (to obtain papers and other forms of evidence); serving written lists of questions that must be answered under oath (interrogatories); and examining witnesses under oath, before a notary public (depositions.) It is the lawyers who perform the discovery, not the court, and attorneys for the parties have the right to engage in reasonable discovery as they deem appropriate. While the court will settle disputes between the lawyers involving discovery, and while the court may stop unreasonable discovery, most courts allow tremendous latitude to counsel in conducting discovery and the process normally takes months, and quite often, takes years. Arizona state court depositions are limited to four hours. Federal court depositions have no presumptive time limit. Since the answers given by the party or witness may be used at trial to convince a judge or jury, and since alteration of testimony at trial from that of the deposition can result in total destruction of the witnesses' credibility, discovery effectively determines the winner or loser in the bulk of civil cases. Well over ninety percent of all cases settle before trial. However few cases settle before discovery is completed.
What is alternate dispute resolution?
Alternative Dispute Resolution (ADR) is an umbrella term for a full range of dispute resolution methods (such as arbitration, mediation, etc.), both private and court-connected, designed to help parties resolve their conflicts. In the courts of Arizona, ADR supports a wide range of alternative programs to assist parties in settling pending court disputes without resorting to trial. Court-connected ADR programs are offered in many Superior Court Divisions, such as the Civil, Family, and Probate Divisions. ADR also serves the Justice Courts.
Are litigants required to participate in an alternate dispute resolution process?
Depending on the amount in controversy, and jurisdiction of the dispute, parties may have to voluntarily submit to non-binding arbitration. The Arizona Supreme Court amended Civil Rule 16(g) regarding Alternative Dispute Resolution (Arizona Rules of Civil Procedure). Under the newly amended Rule 16(g), parties to Civil disputes have a duty to consider ADR, confer with one another about using an ADR process, and report the outcome of their conference to the court.
What happens in the trial process?
Trial is a formal matter, with each side usually having the right to have a trial by jury, which is made up of six to twelve lay persons selected from the voter roles of the locale. If both sides wish, they can waive the jury and have the, Judge, alone try the case. This is called a "bench" trial. Trials can last from a day or two to a year or more. Most commercial trials last between a week to three weeks. Each side has an opening statement, then the Plaintiff presents its case, followed by the Defendant presenting its case. The parties use witnesses and documents to prove their case and each witness, after testifying, may be cross examined by the counsel for the other side. One can force a witness to appear and can call the other side to the stand to be cross examined. After the parties have presented their respective cases, each side gives a closing argument to the judge or jury and a decision is rendered. It is up to the Parties and their lawyers to prove their case and conduct the trial. The judge makes sure the proper procedure and laws are obeyed. For this reason, in the United States, the attorney is a critical part of proving your case. The judge will not conduct an investigation of the facts. It is up to your lawyer, using documents, witnesses, and cross examination, to prove the case to the satisfaction of the Court or the jury. Even if the judge sees a party making an error or failing to prove a case, the Judge will normally not help.
What happens after a verdict is rendered?
Most judgments are for monetary damages. Only in unusual situations will a court order a party to do more than pay damages, but such orders ("injunctive relief" or "specific performance") may be obtained if the plaintiff proves that monetary damages will not really compensate the plaintiff for the damages caused. Once rendered, the judgment, if not paid, may be used to seize assets of the other party. If the defense wins the case, the Plaintiff may not bring the same action again. Absent contract providing for fees or a special statute, attorneys fees, are not awarded to the winning party, though such costs as filing fees may be. Pursuant to Arizona statute, the prevailing party in contract litigation is presumptively entitled to attorney fees. This is a critical matter to keep in mind: often winning a case results in little net gain if the attorney fees are so large as to make the eventual judgment relatively small.
Am I entitled to punitive damages?
Punitive Damages are unique to the United States courts and are normally not provided for in contract disputes. Wrong doing such as bad faith or fraud must be proven before punitive damages may be awarded. Intentional wrong doing or reckless negligence is normally required to obtain punitive damages and, more often than not, they are not awarded.
What is an appeal?
A judgment may be appealed, but an error of law must be proven to have a successful appeal and most appeals do not succeed. Appellate courts are loath to overturn lower courts. Unless a bond is posted, the party winning can normally enforce a judgment even during an appeal and since appeals often take years, the party appealing often posts a bond to save itself from enforcement of judgment during the period of waiting for a final decision from the appellate court.