In Arizona, lawsuits are governed by rules of procedure and by rules of evidence. These rules contain strict time limits and many obligations which each party to the lawsuit must fulfill. A failure to comply with all of the rules may result in sanctions such as the dismissal of the lawsuit, or the requirement to pay money to an adverse party. Rules of evidence seek to filter out unreliable and untrustworthy information so that the only evidence presented at a trial is deemed reliable and trustworthy. As a result, much relevant evidence may never reach the trier of fact.
The person who initiates a lawsuit is called the “plaintiff.” A lawsuit is commenced by filing a document called a “complaint.” The complaint contains allegations of factual matters. The complaint is drafted to assert whatever legal theories may entitle you to relief from the Courts. In addition to the complaint, several other legal documents must be prepared. One such document is the summons. The summons is an order requiring the defendant to appear and file an answer to the complaint within a certain period of time. The “defendant” is the person against whom the lawsuit is filed. The summons must be delivered to the defendant, together with a copy of the complaint, in order to obtain jurisdiction over the defendant.
Once the complaint is prepared, it is filed with the Clerk of the Court. A filing fee must be paid to the Clerk to file the complaint. The Clerk then issues the summons. The summons and complaint are given to a sheriff or private process server to be delivered to the defendant. The summons and complaint must be served on (delivered to) the defendant within 120 days of the date the summons was issued by the Clerk. If service does not occur within this time, the lawsuit may be dismissed due to lack of diligence.
Once the summons and complaint documents are served on the defendant, the sheriff or process server prepares an “affidavit of service of process,” which recites the method and manner in which the defendant was served with the summons and complaint. The affidavit of service of process must be filed with the Clerk of the Court, to show the judge that the defendant was properly served.
Once a defendant is served, an answer must be filed with the Court (and a copy delivered to all other parties) within a specified period of time. Failure to file the answer may result in a “default.” A defendant may file a “counterclaim” or “third party” complaint when the answer is filed.
A “counterclaim” is a claim made by a defendant against a plaintiff. In essence, a counterclaim is a counter lawsuit. Thus, one of the risks of filing a lawsuit is that you may be countersued. It is not uncommon for a person’s lawsuit to fail while a countersuit is successful.
A “third party complaint” is a claim by a defendant against someone other than the plaintiff. A defendant may claim that he or she is not liable to the plaintiff, but someone else is, instead. Or, a defendant may claim that if he or she is found liable to the plaintiff, a third party should be held liable to the defendant.
Once the complaint has been served and the answer has been filed, certain time limits begin to run. Each party is required to file a “disclosure statement” within forty (40) days of the date the answer was filed. A “disclosure statement” is a comprehensive document which lists all of the information you have which is relevant to the lawsuit.
The disclosure statement contains a list of witnesses name and addresses, a list of documents and other things which may be introduced at trial as an exhibit, and a comprehensive explanation of each issue involved in the lawsuit. You are required to disclose the good with the bad. There are substantial penalties involved for failing to disclose, for disclosing late, and for being evasive.
After a lawsuit is filed, and before the case gets to trial, there are many motions which may be filed, for a variety of purposes. There are motions to dismiss all or part of the case, motions to obtain more time to do things, motions to make a party pay all or part of the cost of doing something, motions to force a party to do, or not do, something while the lawsuit is pending, and motions to punish a party for violating the rules.
In most situations, once a motion is filed a party has time, usually ten (10) days to file a response. Then, the party filing the motion has time, usually three (3) days, to file a reply. Once the motion has been “briefed” by the parties, the Court will set it for hearing. The hearing date can be anywhere from a few days to a few months after the briefs are in.
The disclosure statement, discussed above, is the primary way in which information about the adverse party’s position is discovered. It is not necessarily the best way, however. The rules of procedure contain a variety of “discovery” rules, or rules which provide the authority to investigate and obtain information to be used at trial.
One of the best discovery tools is the “deposition.” A deposition is an interview, under oath, in the presence of a court reporter who transcribes the testimony. The deposition is usually conducted in a lawyer’s office in an informal setting. A deposition is useful for many reasons.
A deposition may preserve a person’s testimony. If a person is unavailable at the time of trial (due to death, disappearance, relocation or other cause), the deposition transcript may be read. While this is not as good as live testimony, it is better than no testimony at all.
A deposition may be used to quickly discover information. In a deposition, you have an opportunity to meet the person being deposed and “size them up.” A deposition can be used later to support or oppose a motion, such as a motion to dismiss the lawsuit.
A deposition may also be used to “impeach” the witness at trial. If the witness testifies at deposition that the stoplight was red, but says at trial that it was green, the inconsistency can be used to point out the difference in the witness’ testimony. Sometimes such a difference occurs due to completely innocent reasons, such as new information coming to the attention of the witness. Other times, the witness may simply be lying.
A deposition is expensive. Sufficient time must be spent prior to the deposition to prepare for it. The right questions have to be asked. The deposition has to be transcribed by the court reporter and often reviewed or summarized afterwards in order to find the most important areas of the transcript. In complex cases, many depositions may have to be taken, at a cost of thousands of dollars.
It is not unusual for a defendant to file a variety of motions in an attempt to get the lawsuit dismissed. Responding to these motions, briefing and arguing them may take months and cost thousands of dollars. One such motion is a “motion for summary judgment.” This motion is an effective tool because it requires a party to lay out his or her case and it exposes the weaknesses in a case. If the motion is successful, no trial is necessary.
A trial date is not automatically issued. In order to obtain a trial date, you must file a written request with the Court. This request, called a “motion to set and certificate of readiness,” must comply with the rules and set forth all of the necessary information. If a motion to set is not filed within nine (9) months of the date the lawsuit was filed, the case may be dismissed.
Before a motion to set can be filed, the case must be relatively ready for trial. Thus, you cannot sit idly by. You must diligently prosecute your lawsuit.
Once a case is scheduled for trial, a substantial amount of work must be done. The preparation for a trial is time-consuming, expensive, and essential. Witnesses have to be located and served with a subpoena to appear. Outlines have to be prepared so that witnesses may be examined or cross-examined. Documents have to be assembled, placed in order and prepared to offer into evidence as an exhibit.
If a jury is involved, even more work is necessary. Jury instructions must be prepared, legal research memoranda must be prepared and often there are “motions in limine.” A motion in limine is a motion filed at the beginning of trial, usually for the purpose of trying to keep out some form of testimony or other evidence.
Once the jury returns its verdict, or the judge issues a ruling, the lawsuit is not over. In many cases, it is just beginning. The decision must be placed into written form, called a “judgment.” Often, there is a protracted battle over the language to be used in the judgment. This may takes months to resolve. Once the judgment is entered, there may be a motion for a new trial, an appeal or the need for extensive work to find assets or otherwise enforce the judgment.
Collection of the judgment is rarely certain or guaranteed. While there are several legal tools available to collect a judgment, the ingenuity of a judgment debtor trying to avoid payment cannot be cataloged. There are many ways to avoid paying a judgment.
All along the way, there is a risk that a party will file for bankruptcy, that the facts will turn out to be other than what was originally assumed, or that some other unforeseen consequence will derail the lawsuit. No one can predict the outcome. No one can guarantee results. A lawsuit is a risky venture.
Because providing legal representation necessarily involves responding to ever changing situations and to situations over which we have no control, to provide the legal services reasonably needed to represent you in a lawsuit we may be required to provide services in addition to those initially anticipated. Thus, the ultimate cost of the legal representation may be more or less than originally estimated. The accuracy of estimates may vary, depending upon facts and circumstances beyond our control, such as the decisions of a court or the actions of third parties.
The rules for filing and handling a lawsuit are technical, numerous and complex. A person who does not thoroughly understand the rules can easily made a critical mistake. Thus, a person trained in the law and skilled in the rules relating to lawsuits should be employed to handle a lawsuit.
You should not file a lawsuit with the hope and expectation that it will quickly settle. Lawsuits often don’t settle until you are on the courthouse steps just as the trial is about to begin. Thus, it may be many months or years and after thousands of dollars have been spent before there is a realistic chance the case will settle. The best way to make a case settle is to prepare it for trial. When the adverse party begins to realize that you are prepared and that the facts and law are on your side, there is a chance for settlement.