The Initial Phone Call
The Attorney-Client Meeting
Filing of the Summons and Complaints, Formal Discovery and the Litigation Process
Formal Discovery Continued - Depositions and Oral Testimony
Litigation is often a confusing process for the client. Not knowing what to expect in any situation is undesirable. In a litigation setting, it can be absolutely frightening.
At Parham Smith & Archenhold, LLC, we pride ourselves on educating our clients on what they can expect in their case from start to finish. Below is an overview of what a client would probably experience from beginning to end.
Typically, a prospective client will contact us by telephone. We have set in place a system in which we can gather necessary information to begin our organization of your potential claim. The prospective client will go through a series of questions with a legal assistant in our firm who will take down the information which identifies the client and enables us to communicate with the client. Likewise, the legal assistant will gather the facts of the case as the client recalls them. After this information is gathered, the prospective client can expect the legal assistant to meet with a lawyer about their particular case.
Once the prospective client information is passed to the attorney, the attorney will have a legal assistant or secretary set up an appointment between the client and the attorney. While most of the time, this occurs at the law offices of Parham Smith & Archenhold, LLC, there are occasions when the attorney will make a house call to meet with the prospective client. At any rate, in the attorney-client meeting, the general facts that have been relayed to the legal assistant will be studied and discussed in greater detail between the attorney, client, and legal assistant. In this meeting, the attorney can sometimes give the client an idea as to the strength or weakness of a case. Certainly, in a simple automobile accident case in which liability is clear, an attorney may be able to give an opinion at that moment. In a more complex medical negligence setting, the attorney will not be able to give an opinion until more information is gathered. At this initial meeting, the prospective client may be asked to sign medical authorization forms which will allow the attorney to retrieve the client's medical records in an effort to continue a review of the claim. Of course, there may be other records that will need to be ordered. The ultimate goal of this meeting is to establish an open channel of communication between the attorney and the client.
Once the initial attorney-client meeting has taken place, the attorney and staff at Parham Smith & Archenhold, LLC will begin an informal discovery process gathering information to continually evaluate the client's claim. Using the information obtained in the attorney-client initial meeting, various medical records and other documents will be gathered. Once all of these records are gathered, the attorney will evaluate the claim. In complex medical cases, Parham Smith & Archenhold, LLC seeks the services of out-of-state physicians who have knowledge, training, and expertise on a particular subject. Parham Smith & Archenhold, LLC also has a nurse on staff to help us filter and disseminate this information. Once this informal gathering of information has taken place and a non-biased expert reviews the records, the attorney will draft formal legal papers on behalf of the client.
Once the attorney has evaluated a claim and determined that there exists a viable claim, the attorney will draft a summons and complaint along with interrogatories and requests to produce. The summons and complaint is the legal mechanism by which a lawsuit begins. A summons and complaint are two separate documents which contain the general allegations of the client, now also called a plaintiff. The attorney will review with the client the various legal documents. Parham Smith & Archenhold, LLC will file the complaint in the appropriate court and will have the complaint served (delivered) upon the defendant or defendants. As stated, also served are interrogatories and requests to produce. The term interrogatory is just a fancy legal term for a question. Under the rules of civil procedure, we are allowed to ask the defendants a series of written questions to get the formal discovery ball rolling. We will also ask them to produce certain documents in the "request to produce" which will enable us to continually evaluate the claim. Likewise, after the defendant answers the complaint in a separate document called an answer, within 30 days of service of the summons and complaint, the defendants will send various interrogatories and requests to produce to us for answering. Parham Smith & Archenhold, LLC will work with you to gather these materials. Important to note is that we will continue this open line of communication with our client and will continue evaluating the case as information is gathered.
A client can always expect that information will be exchanged by the parties as required by the rules of court. This certainly allows both parties to continue to evaluate their positions in the case. After some of the written discover (interrogatories and requests to produce) is completed, the attorney and client will enter into a process of oral testimony. Oral testimony is usually taken in the form of depositions. A deposition is sworn testimony, usually at the lawyer's office, in front of a court reporter. Since each side presumably knows what their own witnesses are going to a say, a deposition is usually taken by opposing counsel. For instance, a client of Parham Smith & Archenhold, LLC could expect the attorney of a defendant to pose questions to the client. Likewise, the defendant could expect an attorney from Parham ask questions of the defendant or his or her witnesses. At Parham Smith & Archenhold, LLC, we like to keep our clients intimately involved in this process so we will usually invite you to attend all local depositions.
After the written discovery and oral discovery is completed, the case will be ready for trial. The oral and written discovery may take several months. Some jurisdictions may have a case tried within a 12 to 13 month period, while some jurisdictions may take two years or so. For instance, there are various counties in South Carolina in which lawsuits can be filed. Some counties are busier because they have a larger number of suits filed and perhaps not all the resources to handle them as quickly as some other jurisdictions. Required in many counties is mediation, which is a non-binding gathering of parties to discuss any potential settlement. In the counties in which mediation exists, a client may expect his or her lawsuit to be ready for trial more quickly. Once a case is ready for trial, a client can be expect to be asked to participate in getting the case ready for trial.
In trial, a client can expect both sides to present their case. Since the plaintiff bears the burden of proof, the plaintiff gets to go first. The burden of proof is a concept that requires a plaintiff to prove their case against a defendant by a greater weight of the evidence. Most people have heard in the criminal setting that a defendant has to be convicted or found guilty beyond a reasonable doubt. In the civil setting, the defendant can be found to be liable, i.e. responsible, if the greater weight of the evidence is against him or her. This is a lesser standard than in the criminal setting in theory. An attorney from Parham Smith & Archenhold, LLC will present an opening statement explaining or describing what the evidence will be in the trial. On average, this will take ten to twenty minutes. Shortly thereafter, the defense attorney will deliver an opening statement lasting about the same amount of time explaining why the evidence will prove that his or her client is not liable. After that, the testimony and evidence presentation begins. The plaintiff will present his or her case first. This is done through "direct" examination of the witnesses. We have all heard the terms, who, what, when, where, how and why? For example "What is your name?", "How old are you?", "Where do you live?", "How long have you lived there?", "Who lives there with you?", etc. This allows the plaintiff and his or her witnesses to tell the story without being "led" by the attorney. Once an attorney from Parham Smith & Archenhold LLC has conducted a direct examination of a witness, a cross examination will be performed by the defendant's attorney. Cross examination is an old concept in American jurisprudence. Cross examination is an opportunity for someone to examine in a more leading fashion. Cross examination can suggest an answer to a witness expecting a yes-or-no response. For example, "You are 30 years old, aren't you?" "You live at your house, don't you?" "You sought medical care from the defendant, didn't you?" "The defendant provided you medical care, didn't he?" And so on. Once the plaintiff has presented his or her case, the defendant then presents his or her case and conducts a direct examination of his or her witnesses. As what is good for the good is good for the gander, the plaintiff's attorney then gets to cross examine the defense witnesses in the same leading fashion.
Once the defense counsel has presented their case, they will "rest their case". A client can expect various motions to be made as to the sufficiency of the evidence in the case. These motions are usually made at the end of the plaintiff's case and at the end of the defendant's case. After the motions are heard, closing arguments will begin. Closing arguments are different from opening statements. The opening statement is a tool which merely allows the attorneys to tell the jury what evidence the jury will hear. Closing arguments are a more powerful tool which will explain to the jury the evidence presented before them. This enables a jury, after a long trial, to have someone put together all of the pieces of evidence.
Once closing arguments are complete an event takes place called a "charge". The charge of the jury is conducted by the judge. The judge instructs the jury on what applicable law is. The jury then takes the applicable law "charged" them by the judge and the facts given them by the witnesses and exhibits at trial and mixes this all together in their minds and comes up with a verdict.
Usually with a verdict, one side wins and one side loses. Sometimes a jury simply cannot decide, and there will be a mistrial and the entire trial will have to take place again. Nevertheless, if one side loses, there is the possibility of an appeal. Appeals are usually made based on questions of law. That is one side will argue that the judge made some mistake at the trial in his application of the law. The appeals process begins another period of waiting.
If a party chooses to appeal a case, various legal documents will be filed giving the other side notice of intent to appeal. Shortly thereafter, briefs will be filed and the entire record will be requested from the court reporter in the court room so that the appellate courts (Court of Appeals and/or Supreme Court) can see what took place in the trial court below. Once the record is gathered and the appeals are finalized, the parties, through their attorneys, may have to make their arguments before the appellate courts. Once the arguments have taken place in the appellate courts, the appellate courts will render a decision. If the Court of Appeals makes the decision, the case can be appealed to the South Carolina Supreme Court. After that, the South Carolina Supreme Court will hear the issues and render a final opinion disposing of the case.
This entire process can take quite a bit of time which is why communication is very important. Of course, throughout the process, patience is important as well. We hope that this helps you better understand what you may experience as a client. This is certainly not the end-all of experience of clients. Most cases do not go through this entire process. Please be advised that some do. At any rate, this is what you may expect.
If you need more information about a specific phase of representation, or if you want to contact one of our legal professionals, you can call our Greenville, South Carolina office at (864) 990-4581 to set up an initial consultation. As an alternative, you can send a brief summary of your request to us by filling out the contact form on our "contact us" page.