the lawsuit survival guide, a client's companion to litigation (2003)

The Lawsuit Survival Guide A Client’s Companion to Litigation By Attorney Joseph L. Matthews 1st edition Nolo’s Legal Updater We’ll send you an email whenever a new edition of this book is published! Sign up at www.nolo.com/legalupdater. Updates @ Nolo.com Check www.nolo.com/update to  nd recent changes in the law that affect the current edition of your book. Nolo Customer Service To make sure that this edition of the book is the most recent one, call us at 800-728-3555 and ask one of our friendly customer service representatives. Or  nd out at www.nolo.com. The law changes, but Nolo is on top of it! We offer several ways to make sure you and your Nolo products are up to date: always up to date 2 1 3 We believe accurate, plain-English legal information should help you solve many of your own legal problems. But this text is not a substitute for personalized advice from a knowledgeable lawyer. If you want the help of a trained professional—and we’ll always point out situations in which we think that’s a good idea—consult an attorney licensed to practice in your state. please note The Lawsuit Survival Guide A Client’s Companion to Litigation By Attorney Joseph L. Matthews 1st edition First Edition Second Printing MARCH 2003 Editor LISA GUERIN Illustrations MARI STEIN Cover Design TONI IHARA Book Design TERRI HEARSH Proofreading ROBERT WELLS AND KATHERINE L. KAISER Index PATRICIA DEMINNA Printing DELTA PRINTING SOLUTIONS, INC. Matthews, Joseph L. The lawsuit survival guide : a client’s companion to litigation/by Joseph L. Matthews. p. cm. Includes index. ISBN 0-87337-760-5 1. Complaints (Civil procedure) United States Popular works. 2. Action and defenses United States Popular works. 3. Attorney and client United States Popular works. I. Title. KF8863.M28 2001 347.73'53 dc21 2001030367 Copyright © 2001 by Joseph L. Matthews ALL RIGHTS RESERVED. Printed in the U.S.A. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without prior written permission. Reproduction prohibitions do not apply to the forms contained in this product when reproduced for personal use. For information on bulk purchases or corporate premium sales, please contact the Special Sales Department. For academic sales or textbook adoptions, ask for Academic Sales. Call 800-955-4775 or write to Nolo, 950 Parker Street, Berkeley, CA 94710. Ac knowledgments Many people at Nolo have had a hand in the project which has become this book. Barbara Kate Repa encouraged the project in its infancy. Shae Irving and Janet Portman did preliminary work on an early manuscript chapter, trying to hammer out an approach that could be most helpful to lawsuit “civilians.” And I am very grateful to Mary Randolph, who recognized the project’s value and rescued it when it seemed to be floundering. The book owes its final organizational clarity and consistency to the superb edito- rial work of Lisa Guerin. It may have been a book when it got to her, but she honed it and polished it to a much finer shape. Thanks, too, go to the wonderful trial lawyers from whom I have learned so much over the years, not just about the technical aspects of civil litigation but about how to treat human beings—especially their clients—along the way. These fine lawyers include the late Stuart Buckley, Meriel Lindley and especially Dick Duane. My final and greatest thanks are reserved for someone who combines a compre- hensive understanding of the law, a keen and unblinking editorial eye and an unwavering dedication to making the law accessible to all. Steve Elias took a formless mass of words and patiently, tirelessly and always good-humoredly showed me how it could be a book. Table of Contents 1 Introduction Section I: The Trouble With Lawsuits I/2 Section II: How to Use This Book I/3 1 Lawyers, Fees and Retainer Agreements Section I: Choosing a Lawyer 1/3 Section II: Changing Lawyers 1/15 Section III: Attorney Fees and Litigation Costs 1/18 Section IV: The Representation Agreement 1/27 Section V: Sample Representation Agreements 1/30 2 Working With Your Lawyer 3 Getting a Lawsuit Started: The Pleadings Section I: The Complaint 3/3 Section II: Defending Against a Complaint: Responsive Pleadings 3/21 Section III: The Defendant Strikes Back: Countersuits 3/29 Section IV: Litigating on Behalf of a Minor: Guardian ad Litem 3/31 4 Discovery Section I: An Overview of Discovery 4/4 Section II: Interrogatories 4/9 Section III: Requests for Production of Documents and Physical Evidence 4/16 Section IV: Requests for Admissions 4/24 Section V: Depositions 4/27 Section VI: Discovery Limits 4/38 5 Motions and Other Court Proceedings Before Trial Section I: Motion Procedures 5/5 Section II: Restraining Orders and Injunctions 5/21 Section III: Motions to Secure Assets: Lis Pendens, Attachments and Receiverships 5/29 Section IV: Motions to Expand, Narrow or Move a Lawsuit 5/31 Section V: Plaintiff’s Motions for Default 5/38 Section VI: Defendant’s Motions to Dismiss 5/40 Section VII: Discovery Motions 5/43 Section VIII: Motions for Summary Judgment and Summary Adjudication 5/48 6 Mediation 7 Arbitration Section I: Arbitration Basics 7/3 Section II: Arbitration or Trial? 7/10 Section III: Preparing for Arbitration 7/14 Section IV: The Arbitration Hearing and Decision 7/18 [...]... it to trial 10 Should I talk to potential lawyers about my attitudes toward the lawsuit? Yes Lawsuits can be extremely hostile affairs And hostility may be what a client most feels about the opposing party in the lawsuit If so, the client might want a lawyer to litigate the case as aggressively as possible (and affordable) On the other hand, even if a client has great hostility toward the other party,... than, a more expensive lawyer There is no direct relation between the fee a lawyer charges and the quality of the work that lawyer would perform in a particular lawsuit A lawyer who charges high fees may do so because of a large overhead or a large reputation rather than a large talent for litigation For example, a lawyer with a plush office in a downtown skyscraper may charge considerably more than... at least somewhat different On the other hand, every lawsuit has many procedural similarities This means that it is neither practical nor necessary to look for a lawyer who has experience handling lawsuits that are “exactly” like the client’s case But the lawyer should at least have some experience in the same area of law as the client’s case For example, if a lawsuit involves the break-up of a partnership... for no reason at all a client has the right to change lawyers And one of the most common times to change lawyers is when a claim or dispute formally becomes a lawsuit 16 Can I change lawyers after a lawsuit has begun? Yes It often happens that a client wants to switch lawyers in the middle of a lawsuit 1/ 1 5 There are many reasons why a client might want a change The client and lawyer might disagree... Relief may also refer to a temporary benefit ordered by a judge “Award” similarly refers to what a judge or jury would grant to a party at the end of a lawsuit, but it usually refers only to a sum of money “Recovery,” “damages” and “compensation” all refer to the money one party pays the other at the end of the lawsuit Unlike “award,” these terms include money that changes hands as the result of a settlement... however Many people have neither the time nor the inclination to learn the many technical legal rules that apply to every lawsuit, to do the research, investigation and preparation necessary to adequately represent themselves or to determine the realistic value of their case This is where a good lawyer comes in A client can expect the lawyer not only to do the legal work necessary to prepare the case for... in the form of a letter or a document called a Release—which formally authorizes the first lawyer to transfer all the files to the new lawyer The first lawyer may charge a small fee for reviewing the file to remove notes and other work that is personal to the first lawyer, and for copying costs If a lawsuit has already begun and the first lawyer has officially filed papers on the client’s behalf in the. .. client to write a brief letter to the first lawyer stating that, as of the date of the letter, the first lawyer’s representation of the client is ended In the letter, the client should also ask the first lawyer to send all the client’s files and related materials to the new lawyer The new lawyer is usually happy to draft this letter for the client The first lawyer may ask the client to sign a paper—either... what to expect from opposing lawyers LAWYERS, FEES AND RETAINER AGREEMENTS When searching for a lawyer to handle a dispute that has reached the lawsuit stage, a client should seek referrals specifically to a litigator or trial lawyer, and preferably to one who has experience with cases involving the same area of law (See Questions 5-7, below.) 2 Where can I get referrals to an appropriate lawyer? Lawyer... between a lawyer and potential client, the client should make sure the lawyer understands the client’s approach to the lawsuit and to the other side, and agrees to conduct the litigation accordingly Some of the specific issues a client might want to discuss with a lawyer up front are: • how much money is to be spent on the lawsuit, balanced against how much money might be paid to or collected from the other . “party” to the lawsuit. “Litigant” is another term for party, used to indicate that a formal lawsuit has begun (as distin- guished from a party to a contract, or a party to a dispute that has not. in a separate chapter. The chapters themselves are organized in a simple -to- use question-and-answer format. The questions are those that any non-law- yer caught up in a lawsuit might ask about his. money. “Recovery,” “damages” and “compen- sation” all refer to the money one party pays the other at the end of the lawsuit. Unlike “award,” these terms include money that changes hands as the result of a settlement