Civil litigation is a dispute between two or more parties. Criminal actions involve the state trying to incarcerate someone for committing a crime. A typical civil lawsuit is for breach of a contract or for injuries suffered in an automobile accident. If you are the aggrieved party you can file an action in state or federal court. Lawsuits in federal court must meet certain requirements such as those involving federal questions of law, when the federal government is a party or when the parties live in different states.
In either court you initiate a lawsuit by filing a complaint. You then have 120 days to serve the complaint by simply giving a copy to the defendant. After the defendant is served he has 20 days to file an answer. Usually both sides will have an attorney. But a defense attorney has much different motivation than the plaintiff’s attorney. Defense attorneys are usually paid by the hour. Plaintiff’s attorneys can be hourly but in personal injury cases and employment cases they are usually on a contingency. This means that the plaintiff’s lawyer doesn’t get paid unless they win and he gets a percentage of the winnings.
A plaintiff’s attorney on a contingency matter wants to move the matter along and get it resolved either through settlement or by trial. But a defense attorney doesn’t have the same motivation because they are paid by the hour. If they settle early they don’t make much money. But if they can conduct extensive discovery (gathering of evidence) over a period of years they can make a huge amount of money. And that is what they like to do.
Now, spending a lot of time and money on discovery costs a client a lot of money. But it is not uncommon for a defense attorney to be retained and paid by an insurance company where money is plentiful. Under the guise of needing all the information they can get, defense firms do massive discovery before they advise their client on whether or not to settle the matter.
Before settlement even is considered attorneys make their motion to have the case dismissed by a process called summary judgment. Summary judgment will only be granted if the facts are not in dispute. In such a case, as a matter of law, the plaintiff loses. These motions can be hundreds of pages long and take months to resolve. The defendants have nothing to lose if it is denied. They still get to go to trial. The defense attorney makes another bundle of money by filing these motions.
So how long does all this take before you even get to go to trial? It can take three or four years. Who does this delay favor? The defendant because he doesn’t have to pay any judgment for several years and maybe the plaintiff will just get worn down and take less than he is entitled to.
Is this fair? Is this justice? No. But it is the system. If you have been injured or wronged, you have the right to file a lawsuit. Just be ready to hunker down for several years as the defense lawyers run up their fees.
Jeff Blanck is an attorney in private practice in Reno. He can be reached at email@example.com.