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Anatomy of a lawsuit

Anatomy of a lawsuit

Daniel Marchese, esqA lawsuit starts when someone has a legal issue that can only be resolved through court intervention. A client hires an attorney and works with that attorney to gather facts so they can formulate legal arguments and draft a complaint. The complaint is filed with the district or county clerk, or in federal courts if so appropriate, and a summons is issued for the Defendant(s) to respond. The summons provides 91 days for service to be effectuated on the Defendant. Valid service of a summons and complaint is made by either a.) personally serving the Defendant(s) or b.) sending certified mail to the Defendant(s), with a restricted delivery to Defendant only. (In Michigan cite:) MCR 2.105 et al. If the 91 days expires then a new summons has to be issued.

Alternative Methods for Issuing a Summons and Complaint

If the aforementioned types of service cannot be effectuated, then MCR 2.106 et al, provides alternative methods for service. Options are to publish the notice in a newspaper for three consecutive weeks, or more, based on the court’s ruling, to be sent where the Defendant resides in addition to mailing it to Defendant’s last known address by register mail, return receipt requested before the date of the last publication. OR, the Plaintiff can post a copy of the order for alternative service in the courthouse and 2 or more other public places as the court may direct for 3 weeks, in addition to mailing it to Defendants last known address by register mail, return receipt requested before the date of the last publication. The two aforementioned types of court orders must be granted by a judge and the court rule subsections followed exactly. MCR 2.106(B)-(E).

Responding To The Complaint

Once service is effectuated, the Defendant will have either 21 days to respond if personally served or 28 days to respond if served by mail; or, based on what the court orders for alternate service via MCR 2.108(3). The “Answer” (to the complaint) has to respond to each allegation of Plaintiff(s) by either admitting, denying with explanation, or stating there is a insufficient information to form a belief as to the allegation. After the response to the Plaintiff’s allegations, there is a separate pleading called “Affirmative Defenses” that state what defenses to Plaintiff’s claims Defendant(s) is/are going to rely on.

The Discovery Phase

When Defendant is served, the time for discovery begins. This period is where opposing counsels may or will request information for the opposing party to gather facts to prove the elements of their claim, or to prove the elements of their affirmative defenses. Such types of requests for information are generally admissible as evidence. The court rules provide the types of requests can be ma,e and include the ability to ask a Deponent to admit or deny a fact, to request answers to questions, or to provide necessary documents for one’s case. After a couple weeks or a month in, the court will set a date for a pretrial conference. The pretrial conference is where time limits are imposed for discovery, its determined whether mediation is necessary, and so on and so forth. The judge issues an order and this order defines, basically, the time frame for the entire case.

Settlement Conferences

Before discovery is completed, the courts would like to see the case settled, if possible. Depending on the court, there may be additional settlement conferences or pretrial conferences that the judge wants the parties to appear for as an update to the status of the case. Sometimes these conferences are in court and sometimes they are in the judge’s chambers. Nevertheless, the court always encourages parties to settle, although trial can be inevitable when parties dig their heels in. Parties can also file motions for various reasons as soon as the case starts to the time the case is over, and beyond, even when the case is closed. Motion practice has many varying issues, but motion practice is largely used for immediate factual or legal concerns that need to be addressed by the court. For example, a motion for alternative service if the Defendant(s) cannot be served within a reasonable amount of time, pursuant to MCR 2.106 et al.

Going To Trial

It sometimes gets blurry after discovery but the court will set a date for case evaluation and trial. There may also be another pretrial conference or settlement conference after case evaluation so the judge can see where the parties stand. Case evaluation is where both sides present their case to three independent attorneys and the attorneys issue an award to the party they feel most deserving. If the case cannot settle at case evaluation, then the parties will proceed to trial and wrap up any motions that need taken care of before trial. Then, if all else fails, the parties go to trial and that is a whole other discussion in itself.

The Marchese Law Firm - Rochester MI

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