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- What is General Litigation?
- What is the Litigation Process?
- What is Arbitration & Meditation?
- What are Small Claims, County Court, District Court and the Federal Court?
- How do Jury Trials work?
- What is Discovery?
- What is a Motions Practice?
- How should I Defend a Lawsuit?
- What are Appeals?
- What is Incorporation?
- How do I decide between an LLC vs. Corporation?
- What is Estate Planning?
- Can I Draft a Contract?
Ultimately every legal issue can end up in court. Therefore, the term general litigation refers to litigation and all other aspects of law which may or may not be litigious in nature such as wills/estate planning, incorporating businesses, contract drafting, real-estate transactions, disputes with administrative bodies, and more. Typically however, litigation is what happens when things go wrong and it ends up in court.
What is the Litigation Process?
In a nutshell: 1) Plaintiff sues; 2) Defendant Answers and/or brings a countersuit or drags another party in (amongst other actions); 3) Parties commence discovery; 4) Sometimes mediation or alternative dispute resolution; 5) Trial; 6) Appeals.
Sometimes you can settle matters out of court. Sometimes you can’t. Lawsuits are initiated by filing what is called a Complaint among other documents. But note there are other procedural requirements you need to follow to obtain jurisdiction over the other party. You need to have reason to sue and typically you will have to prove your elements to a judge or jury. Depending on where you sue and the amount in controversy you may or may not be able to get discovery (i.e., get evidence including interviews and documents of other people including the other party). There are oftentimes good faith defenses to bring such as the statute of limitations. If the case does not settle, then you may have the opportunity to issue discovery to get more information.
To read about settling your case check out this interesting article:
What is Arbitration & Meditation?
These are forms of alternative dispute resolution. If you have a dispute with someone you have three choices 1) Drop it; 2) Sue them; 3) Undertake alternative dispute resolution (either before or after lawsuit). Nowadays people are more willing to engage in alternative dispute resolution due to the cost and time involved in litigation. Arbitration and mediation are different in several ways but similar in that they provide and alternative to court and are usually much less expensive.
What are Small Claims, County Court, District Court and Federal Courts?
The biggest difference between these courts are the jurisdictional amounts and the procedural rules. For example, small claims court is a forum which provides litigants with quick access to judicial relief at a relatively low cost. Sometimes this is frustrating for attorneys because we are not able to fully develop our cases. The benefit however to the client is quick and economical relief. On the other end of the spectrum are the state district courts. There are numerous rules which the parties can opt out of or enter into which provide for speedy or a more traditional trial. The Federal court is a whole different animal and unless you have a federal claim or there is a lot of money at stake, then don’t bother.
What about Jury Trials?
You aren’t required to have a jury trial. Oftentimes this is a tactical decision to make. Jury trials versus bench trials (in front of a judge) are by default more complicated and time consuming. Sometimes you want a jury of your peers to hear your case. Sometimes you don’t. It really just depends on your facts and the type of case you have.
What is Discovery?
This is the process whereby you ‘discover’ information that the other party has. In small claims court and county court discovery is limited. Essentially the discovery process is where the parties are permitted to probe each other for information and documents helpful to their respective case. Discovery can be used as a litigation tactic and some attorneys will abuse the process. Our philosophy is to use discovery to find out what we know and what we don’t know so as to ensure we are fully prepared for trial. We won’t play games as it simply wastes time an money.
What is a Motions Practice?
Some attorneys do not fee comfortable in a courtroom but are excellent writers. Thus they limit their practice to solely filing motions with the court and leave the court appearances to others. While this is completely acceptable, all of our attorneys can handle both a motions and a courtroom practice.
How should I Defend a Lawsuit?
Once your sued you absolutely need to take steps to protect yourself. If you do nothing a default judgment will most likely be entered against you. If the judgment is for money damages then the judgment holder may begin to execute on the judgment by taking such actions as garnishing wages or filing judgment liens. Sometimes in the legal setting the plaintiff will sue the defendant knowing full well that he himself is guilty of some other kind of mis-conduct. In this case you would need to counter-claim and assert your defenses. The legal system has a strong policy to adjudicate all disputes at one time. Bottom line, don’t wait to raise your defenses or counterclaims, this may be the only chance you get.
What are Appeals?
You absolutely have the right to appeal a lower court’s decision. Though before you do so you need to be very careful what you decide to appeal. Appellate courts give wide discretion to trial courts with regards to their findings of fact. Also, appeals are costly and usually involve a great deal of time and preparation.
Why should you Incorporate?
We always recommend that you incorporate your business, especially if you have a family. If you are a sole proprietorship and if something happens, all of your assets on the line. A corporation can’t guarantee 100% protection of your assets, but it is a much safer and does offer a great deal of safety.
How do I decide between an LLC vs. Corporation?
The jury is still out on which type of entity is better. Some attorney’s say it is mal-practice to put people in an LLC, others say it is mal-practice to put people in a Corporation. Bottom line, it just depends on what type of business you have and how much revenue you expect to make. The liability protection side of things remains the same. The big differences come down to your tax treatment. At Cohen & Cohen, P.C. we will review your situation and at your option consult with a licensed account to help you form and choose the right entity for your business.
What is Estate Planning
This is an often overlooked yet critical aspect of everyone’s life. When you die, if you don’t have a will, the state will decide who gets your stuff. However, what is also more important to consider is what if you become incapacitated and your family disagrees on how to care for you. What if it is your wish to “pull the plug” and your family keeps you alive for years in a vegetative state? What if you feel the other way? These plus other factors are extremely important for you to consider. Plus getting a simple will along with your other documents is relatively cheap and could potentially save you and your family thousands of dollars when you die.
Can I Draft a Contract?
Most people draft all of their own contracts. Usually this works. However contract law has developed for hundreds of years and there are dozens of factors you want to consider when drafting a contract. Moreover, oftentimes the individuals contract is void for whatever reason. If you need a contract which will hold up in court and has all of the appropriate provisions, then you need to contact an attorney.