Litigation is a process governed by federal, state and local rules of court. These rules provide structure for the litigation process. Experienced litigators understand the rules and know how to make the most of the process within the bounds of these rules. Tough litigation does not mean that the rules are ignored, but rather used to obtain the litigation objective.
The litigation process is second nature to the experienced attorney and an impenetrable maze for the client. It is our responsibility to explain to each and every client the process in understandable terms so that the client understands what is going on and why it is happening. Direct communication between the lawyer and client is mandatory at Berkowitz Klein and is part of our standard operating procedure.
The first step in litigation is the Pleading stage. The plaintiff files a Complaint against the defendant. The Complaint sets out the facts; who did what to whom and what damages were caused by the acts of the defendant. The defendant can then answer the complaint; no, the facts in the complaint are wrong; I didn’t do it, but even if I did do it, I am not liable to the plaintiff for the harm caused. Under certain circumstances motions can be filed to dismiss the complaint completely due to a legal defect. Even if the plaintiff can prove all of the facts alleged, the law provides no recovery.
Once the pleading stage has been completed the case moves into the discovery phase. This is where evidence is gathered. Documents and things are exchanged by the parties, the testimony of witnesses is taken under oath and recorded by a court reporter and subpoenas may be issued to non-litigants to further develop the facts of the case.
After discovery has been completed either side may ask the court to rule in their favor without the need for a trial. The testimony and documents obtained during the discovery phase may be sufficient to conclusively prove that one side or the other is entitled to prevail in the case without the need for a trial. The trial is required only to resolve disputed facts. If there are no facts in dispute, then the judge can decide the case without the need for a trial. If there are disputed facts that are material to the outcome of a case, then a trial is necessary to resolve the disputed facts.
The trial is presided over by a judge and either the judge or a jury will be asked to determine the ultimate facts that are in dispute. Based on the outcome of the disputed facts, a judgment will be rendered for one side or the other.
The process takes time. Some cases can be resolved in less than six months. Other cases can take years to resolve. Factors such as the complexity of the case and the backlog of the court system are important factors in determining how long it will take to resolve a case.
Each phase of the case involves time, and time is money. Each stage of the proceedings presents an opportunity for settlement. As more information becomes available during the discovery process, each side is better able to understand the strength and weaknesses of their case.
As the facts develop, the negotiating position of the parties will change. Are the facts that can be proven at trial favorable to the case or unfavorable? The balance of power often shifts during the course of a case and it is important that the client and the attorney understand the balance of bargaining power at each stage of the process. You must strike while the iron is hot, when you have the best bargaining position.
In order to prevail in litigation you must set clear objectives. It makes little sense to spend twenty-five thousand dollars to collect a ten-thousand dollar judgment unless there is an important principle at stake. On the other hand it makes little sense to spend money to defend a case in which you are likely to lose unless there is a bigger issue at stake.
At each phase of the process, our attorneys will help you put the litigation into its proper context and help you define and achieve your litigation objectives. It is not okay to say that the operation was a success but the patient died.
If your business is being sued in one of the counties in Southeastern Pennsylvania
I Invite you to contact one of the attorneys at Berkowitz Klein LLP. Gerald Berkowitz and Robert Klein have been representing businesses and their owners in litigation throughout Southeastern Pennsylvania for over 25 years. They are familiar with the local Courts, the Judges, and the process.