Introduction to Litigation
Many lawyers who are new to practice may say they want to be litigators, but they don’t necessarily have an idea of what that looks like. This introduction to litigation covers some of the most common steps of every case and includes practical first-hand knowledge of the best practices and common pitfalls of each step. This course will detail the process of litigation, from pleadings, to discovery, to dispositive motions through trial, while discussing the importance of continued settlement negotiations along the way.
Cheyne Scott: Hello, and welcome to Introduction to Litigation. My name is Cheyne Scott. I am a partner with Chasan Lamparello Mallon & Cappuzzo. We are a law firm located in Secaucus, New Jersey, which is about 15 minutes away from MetLife Stadium, which may or may not be exciting to you depending on whether or not you're a football fan 'cause that's where the Jets and the Giants play. But we're not here to talk about sports, we are here to talk about litigation. That's an area that I've practiced in for 10 years, and I'm very excited to talk to you about litigation today.
What we're going to discuss today is what is litigation? What are the most common types of litigation? And what are the steps of litigation?
What is litigation? Webster's dictionary defines litigation as the act, process, or practice of settling a dispute in a court of law. And Black's Law Dictionary defines it as the process of carrying on a lawsuit. And so, there are different types of litigation, there's criminal litigation, there's civil litigation, and then there's administrative litigation. Crimes are generally offenses against the state and are prosecuted by the state. Civil cases are involving disputes among individuals or commercial entities. And then administrative law refers to the body of law that regulates the operation and procedures of government agencies.
So, I have experience in all three of these, I serve as a municipal prosecutor for a township in New Jersey. It's common for someone to serve as a municipal prosecutor part-time and then to have a full practice, which is what I do.
So, I have part-time municipal prosecution duties in the town, and then the other 80% of my practice is civil litigation. This is unlike a state prosecutor, who has a full-time job and handles indictable offenses and crimes. So, what I handle are zoning, building, and health code violations. So, anything from the failure to maintain your lawn, you know, having overgrown weeds or having garbage all over your front lawn to slum Lords turning off their tenants heat in the middle of winter, or having multiple illegal apartments in a house beyond its zoning, to buildings in severe disrepair to the point where it causes safety concerns for the community, so that's what I handle on the municipal prosecutor side, so that's my criminal litigation side. And then in the civil side, I represent municipalities in various matters. So for example, personal injury, if someone is hit by a city vehicle while crossing the street, civil rights claims, if someone is subjected to excessive force by law enforcement, employment litigation, if someone is claiming they were sexually harassed by an employee, so that's generally my civil side. And then administrative litigation, most of the municipal clients I represent are protected by unions and are protected by the Civil Service Commission.
So, the disciplinary process is usually through administrative litigation. So, if an employee is subject to major discipline, a suspension of more than five days, they can request a hearing with the Civil Service Commission. And that is administrative in nature, and I spend a lot of my time handling those types of matters. One thing that sets these various types of law apart are there burdens of proof. Beyond a reasonable doubt, if there is a criminal case, the prosecution bears the burden of proving that the defendant is guilty beyond all reasonable doubt. So, this means that the prosecution must convince the jury that there is no other reasonable explanation that can come from the evidence presented at trial. In other words, the jury must be virtually certain of the defendant's guilt in order to render a guilty verdict. Next is clear and convincing evidence. So, this means that the evidence is highly and substantially more likely to be true than untrue, and the judge must be convinced that the contention is highly probable. This standard is employed in both civil and criminal trials.
On the civil side, claims that involve family law, paternity, fraud cases, wills and estates matters. Withdrawing life support will typically require the clear and convincing evidence standard. In criminal matters, clear and convincing evidence can be used in defenses. So, if someone is being charged with murder, the prosecution must prove beyond a reasonable doubt that this person committed the crime of murder. However, if the person is submitting a defense such as self-defense, then that self-defense matter is reviewed by a clear and convincing evidence standard. The final burden of proof is preponderance of the evidence, so the burden of proof is met when the party with the burden convinces the judge that there is a greater than 50% chance that the claim is true. So, this is the burden of proof in most civil and administrative matters. So, let's talk about the most common types of litigation in each category.
So criminal litigation, it is divided by non-violent and violent crimes, and this was conducted by the Pew Research Center. In 2020, it was determined that the most common non-violent crimes were larceny and theft, followed by burglary, followed by motor vehicle theft. For most common violent crimes, they determined that the number one violent crime was aggravated assault followed by robbery, and then followed by rape. The data that came from Norton Rose Fulbright's 2019 Litigation Trends Annual Survey were that the most common civil cases pending against companies were number one, labor and employment, followed by contracts, followed by personal injury. Now, one thing to note is in 2020, litigation actually increased overall, but personal injury did not increase because there were less people driving and out getting personally injured, so this will be interesting to watch as the uncertainty of COVID-19 continues, but I will tell you just in my anecdotal experience, traffic has increased and people are driving probably worse than they were before, so I see personal injury ticking back up pretty soon. Next is administrative litigation. So, these are the legal rules and principles that define the authority and structure of administrative agencies, specify the procedural formalities employed by agencies, determine the validity of agency decisions, and define the role of reviewing courts and other governmental entities in relation to administrative agencies. Okay, what did that mean?
So, administrative litigation usually arises out of actions of administrative agencies. So for example, the Equal Employment Opportunity Commission, the EEOC, is a federal agency that was established by the Civil Rights Act of 1964 to administer and enforce civil rights laws against workplace discrimination. So, the EEOC can actually investigate workplace harassment or discrimination in violation of the Civil Rights Act. They can also initiate a lawsuit on the half of an employee or employees based on civil rights violations. So, in my capacity of representing employers, I have responded to EEOC investigations and defended against EEOC complaints on the defense side before. Another example of an administrative agency is the ATF, the Bureau of Alcohol, Tobacco, Firearms, and Explosives. So, if someone submits a request for a liquor license, or their liquor license is suspended, they will go through the process of appealing to the ATF. They have their own rules and regulations that are codified, that the aggrieved individual that is going to appeal then will have to follow. And then another example would be the FTC, the Federal Trade Commission. They enforce federal consumer protection laws that prevent fraud, deception, and unfair business practices, and they also enforce federal antitrust laws that prohibit anti-competitive mergers and other business practices that could lead to higher prices, fewer choices, or less innovation. So, often the FTC will file lawsuits against companies that are about to engage in a merger that they find to be anti-competitive. So, that's just an example of the various types of administrative litigation that you could run into. So, let's talk about the steps of criminal litigation. We first have an investigation, the law enforcement conducts the investigation, and then we go to charging. So, the prosecutor takes the investigative findings and determines that there's probable cause that a crime was committed. And then from there, a charge is issued.
There is next initial hearing or arraignment, that's where the defendant appears before the judge, is notified of the charges and enters a plea. And then there's discovery, this is the formal process of exchanging information between the parties about the witnesses and the evidence they'll present at trial. Prosecutors find exculpatory evidence, that is material to the case, they have a constitutional duty to disclose it to the defense. Any evidence that may prove a defendant's innocent is exculpatory evidence. Examples of exculpatory evidence can include an alibi, maybe witness testimony that a defendant was somewhere else when the crime occurred.
Next part of discovery would be maybe interviewing witnesses, gathering physical evidence, documents, computer files, speaking with expert witnesses, and reviewing the police reports and witness statements.
And one thing I want to stress is there are no surprises at trial, so TV and movies depict these smoking gun moments where a piece of evidence is introduced out of nowhere and everybody gasps and is shocked. That is extremely rare because the discovery process is there to avoid that. By the time that you get to trial, everything that could come out at trial has already come out. Next is plea bargaining, that usually involves the defendant pleading guilty to a lesser charge or to only one of several charges. It can also involve a guilty plea as charged with the prosecution recommending leniency at sentencing. Now, obviously the judge is not bound to follow the prosecution's recommendation, but it often does make a difference if the prosecutor is recommending a more lenient sentence based on the circumstances of the case. Next is a preliminary hearing, this is often called a probable cause hearing. The judge uses the probable cause legal standard, deciding whether the government has produced enough evidence to convince the jury that a crime was committed, and that the defendant committed the alleged crime. Probable cause is the existence of a logical basis for the prosecution as opposed to the strong evidence of guilt suggested by the conviction standard of beyond a reasonable doubt, success at this stage can result in charges being dropped. Let me give you an example.
So, there was a Black male who practiced a specific religion similar to Hinduism, and as a part of that religion he had what was called a japa pouch, J-A-P-A, that was around his shoulder and contained beads that he meditated with as he walked. So, visualize man in his 30s walking down the street with a pouch around his body, slung across his body with his hand in the pouch meditating with the beads in his hands walking, doing a walking meditation. Unbeknownst to him, a robbery took place about 10 minutes away from him at a shopping mall. Now, a police officer received a dispatch about the robbery and the only information given at that time was that two Black males robbed an elderly at the mall, and one had a gun and had fled in this general direction. No other description was given at that time because the elderly lady had a seizure at the scene and couldn't give any further description. Now, police officer has just gotten this bulletin. We know that there is a suspect with a gun, we have no other description other than race. And now, the police officer sees this Black male walking down the street with his hand concealed in this pouch. He has no idea what the pouch is, and he is curious, pulls up next to this male and asks him if he was okay. The male responds that he is fine, continues to walk. The police officer continues to drive slowly next to him, again asks him if he is okay and points at his hand in the pouch. The male responds again that he is fine and continues to walk. He is now visually irritated. The police officer pulls his car over, gets out of the vehicle and directs the male to stop and to show him his hands. The male initially asked what this is about, but it does remove his hands from the pouch and shows his hands. The officer asks him for his name, the male refuses to respond. Officer calls for backup, backup comes and they repeatedly ask the male for his name. He refuses to respond. They place him under arrest for obstruction of justice. They book him, retrieve his ID, determined he is not connected to the robbery and they release him from custody, but give him a court date on the obstruction charge. He attends a probable cause hearing where they determined that under the totality of the circumstances, the police officer had reasonable suspicion to stop him based on the proximity of the robbery in time and location. And that the police officer had probable cause to arrest him for refusing to give his name. Now, not to turn this into a criminal law case, but there is a distinction in case law between refusal to give your name to police and refusal to provide ID. This was based on refusal to provide a name, the outcome of the probable cause hearing gave the prosecutor leverage to not drop the charges. They went to trial on this, and the male won and was acquitted of the charge. I handled the subsequent civil lawsuit, where he sued the municipality and the officer for religious and racial discrimination under the Civil Rights Act, and we will talk about that later when we talk about the steps of a civil case. But that's just an example of a probable cause hearing and the outcomes of those probable cause hearings.
So, let's talk about pretrial motions. So, there are motions to suppress and this motion attempts to restrict certain statements and evidence from being introduced as evidence at trial. So for example, if your lawyer determines that the police lacked probable cause to arrest you, they may file a motion to suppress the statements that you made to law enforcement following your arrest. A motion to dismiss, that's an attempt to get the judge to dismiss the charge or case altogether. There's also a motion for change of venue that's common. Many times the motion is filed to prevent pretrial publicity that can create biases in prospective jurors. This is a case that's widely discussed in the news, the attorney may file a motion for change of venue to move the trial to a different court to protect sixth amendment right to an impartial jury. And then finally we go to trial, and then based on the outcome of the trial we will have appeals. So obviously, if you were found not guilty, double jeopardy attaches, you cannot be tried for that specific charge again, you are done. If you are found guilty, then there are appeals that can be made. So, those are the steps of criminal litigation. Next, the steps of civil litigation. So, there's pre-litigation, there's pleadings, there's discovery, summary, judgment, trial, and appeals, and all of these steps are governed by the rules. So, if it's in federal court, you have the federal rules of civil procedure. In state court, you have your own respective rules, they often mirror the federal rules. However, there are some distinctions and differences, especially with time limits that you want to make sure you're familiar with.
And then there are local rules. So, within federal courts, there are often local rules depending on which district court that you're in that you need to be aware of. And then there are also specific local rules in the state courts as well, depending on which court you were in. And then finally there are administrative rules that are respective to the administrative agencies that you may have litigation in. The pre-litigation stage, typically there is actionable conduct. You have, for example, an employment case, someone has been terminated, someone has been harassed or discriminated against, that is the actionable conduct. In a contract case, the contract is breached. In a personal injury case, a injury has occurred.
And so from there, you're going to do a client intake interview. You want to prepare based on the preliminary information you may have gotten from a phone call, or from an email, or from maybe a referral, you wanna get as much information as you can before you meet with the person. And then you wanna ask questions, specific questions about their cause of action. You want to listen and you want to pay attention and look at their body language. Often people are nervous if they're not used to being in a law office, but you want to really pay attention to how they react to your questions, how they respond, because how they respond to you when they're in front of a lawyer is usually their best behavior. And if their best behavior is already not in a great place, you can just imagine how they will present in front of a jury and a judge. And you want to advise cautiously. We don't give any guarantees, we don't tell someone they have a great case, and we don't tell someone they have a horrible case. We just advise that we are going to look into this and determine whether or not we are a good fit to work together. And then you close the intake interview and you would either tell them that you're going to take the case, that you're going to review and get back to them within a reasonable time, or tell them that we're going to decline the case.
The next step is internet sleuthing, Google your potential client. For example, in an employment case, you may be told one thing and see a completely different story in a social media rant. For a personal injury case, they come to your office with their arm in a sling and a neck brace from an accident that happened nine months ago, but you check their social media and they were living their best life zip-lining in Costa Rica just last week.
Next, you are going to determine whether or not you will retain this client. If you're not going to retain this client, you want to submit a non-engagement letter. You want to be very general, but you also want to warn of statute of limitations concerns, and caution them about the passage of time, but don't mention the exact deadline because if you're wrong on that deadline, for whatever reason, then that's something that could be used against you. So, just generally caution about the passage of time and you can also provide them a referral. So, I often will have in non-engagement letters referrals to the state bar association and the local county bar association that they can contact for a lawyer referral. So, a retainer sets forth the scope of your legal services and requirements for a payment. And you could do this under a pre-litigation or a litigation retainer. With a pre-litigation retainer, there is an option to avoid the cost and time that goes into actually filing a lawsuit. So, if it's an employment case, there can be a demand letter that is sent to an employer. There can be a option for pre-litigation settlement. Often when potential defendants get demand letters, they often realize that this is serious and they negotiate. If that pre-litigation demand letter or attempts to settle before litigation does not yield an actual settlement, then we move on to the litigation retainer.
And so, there are three common ways that you can get paid, there's hourly, there is a flat fee, and then there's contingency. So with hourly, you are charging a specific rate per hour for your services. It's not uncommon in these situations to have a retainer fee. So say for example, a lawyer may charge a $3,000 retainer fee to appear at a mediation. And if the lawyer charges a total of 250 an hour, the retainer would cover the services up to the 12 hour mark. You were billing for your time to review all the documents that the client provided you, any of the phone calls that you have with the client, the actual time of sitting in the mediation. For example, some of these mediations can take eight to 10 hours. And then the time afterwards where you are having last minute conversations to close up the settlement, so that 12 hours can really go through quickly. That's why I always recommend that you get a retainer fee upfront.
Next is a flat fee. Lawyers can use a flat fee in handling certain cases where the work involved is straightforward, predictable, and routine. So, some lawyers use flat fees or set rates for uncontested divorces, for adoptions, for evictions, for name changes. Those are ones that are very common forms in which you can get a flat fee. I always caution be very careful with flat fees, set your boundaries very clearly about the flat fee because sometimes people will call you more when they have a flat fee, ask you for help and legal advice about matters that are outside the scope of that flat fee. So, you wanna make sure in your retainer agreement that they are very clear that the flat fee amount is limited to the specific work that you're doing. If you are doing a flat fee for a name change and they start to call you about the divorce that they're thinking about, that is going to be a separate retainer agreement. Don't get pulled in to work that you're not getting paid for.
And then finally, there is contingency. In a contingent fee arrangement you agree to accept a fixed percentage of recovery, which is the amount that is finally paid out to the client. So if you win the case, your fee comes out of the money awarded. If you lose the case, nobody gets paid. So, we've all seen the commercials, If I don't win, you don't pay, that is usually what the contingency arrangement is. You may have, for example, a car accident case where the awarded money is a hundred thousand dollars. Often the fee arrangement is that you get one third of that, so you would get 30,000, and that the client would get 70,000. That is often the way that a contingency works.
You may have two different types of pay structures in pre-litigation versus litigation cases. For example, if your client wants to attempt to resolve a breach of contract matter without litigation, but as fully prepared to sue if it does not resolve, they may sign a pre-litigation retainer on an hourly basis and pay a retainer fee that would cover the cost of preparation of a draft lawsuit and demand letter that would be sent to the potential defendant. And then if that doesn't work out, then they may agree to sign a litigation agreement on a contingency basis. The difference is that in a pre-litigation stage, there has to be some payment to the lawyer for the work. Once the lawsuit is filed, the chance of settlement or jury verdict for a significant amount of money increases and a contingency is appropriate.
Next step is the pleadings. So, a plaintiff files a complaint, that is a pleading. So, there is a summons, that's a form prepared by the plaintiff and issued by a court that informs the defendant that they are being sued or are required to appear in court. Then there's a complaint. A civil complaint is a legal document that initiates a lawsuit and informs the person being sued of the claims against them. It lays out the facts and reasons that support the plaintiff's claim against the defendant. It also states the compensation or relief sought by the plaintiff and why they are entitled to it. Then there is service. This is a method in which a summons and a complaint, as well as later pleadings are delivered to a defendant. And service of process rules will differ depending on the circumstances of the case. And states have many statutes that provide unique notice requirements, depending on the case being brought. There can be personal service through actual process servers. There can be service-based on your domicile that served on where you've live. There can be service by mail, some states allow service via certified or regular mail. They're gonna be serviced by publication, by publishing in a newspaper. There could also be any method prescribed by court order. It's very, very, very important that you know your respective court and local rules for service. 99% of mistakes that are made in litigation can be resolved, but I would say a service of process is that 1% where you can potentially not be able to fix it. So, make sure you know your court rules on service and the amount of time in which you must serve a pleading.
So, after service defendant files a responsive pleading. In many cases, a defendant can file a motion to dismiss in lieu of an answer. So, instead of filing an answer, the defendant can file a motion to dismiss stating that the pleadings are insufficient for various reasons, or the defendant can file the answer immediately. Now, the times where our response of pleading are set forth in federal or state rules, again I can't stress enough how important it is to know what those rules are. Have a sticky note at your desk, know exactly what the time restraints are. And often that defendant when they file a motion to dismiss, they have various grounds in which they can. And I'm not going to turn this into a civil procedure class, I'm just going to briefly go through these.
So, in order for a court to rule on a case, it must have subject matter jurisdiction, and that's the authority to hear a particular type of case. So, if you file a state court claim with nothing else in federal court, that court does not have subject matter jurisdiction over the state court claim alone, unless it is brought with a federal claim. Example, file a wage claim under the Fair Labor Standards Act and the state's wage laws. The court has supplemental jurisdiction under the state wage claim, but would not have subject matter jurisdiction if that was the only claim set forth in the complaint. And you must file in the correct type of court, you can't file a bankruptcy action in the federal district court, you must file it in the bankruptcy court. Or lack of personal jurisdiction, a court has personal jurisdiction over a party when he or she is a resident or has sufficient minimum contacts with the jurisdiction where the lawsuit has been filed. Example, you live in New Jersey and while driving in Pennsylvania, you get into a car accident with the Pennsylvania resident. The Pennsylvania resident's insurance company has jurisdiction over you in Pennsylvania and can file a claim in Pennsylvania, even though you are not a Pennsylvania resident because you have this sufficient minimum contact with the jurisdiction, the accident was these sufficient minimum contact, to be brought into court in that jurisdiction.
Another example is improper venue, insufficient process, we talked about that a little bit, failure to state a claim upon which relief can be granted, if the plaintiff's complaint fails to adequately allege all of the elements of a claim, or if the complaint fails to allege a measurable injury, that can be a failure to state a claim upon which relief can be granted. There are other claims such as statute of limitations claims that can be filed at any time, so these are just the list of various grounds upon which a defendant can file a motion to dismiss. But if the defendant files a motion to dismiss and it is not granted, then the defendant will file an answer. The answer is governed by a federal Rule 8, most states have rules that mirror federal Rule 8. And so generally, responding to a pleading, you state in short and plain terms the offense you are either admitting or denying the allegations asserted by the opposing party.
Next is discovery. First thing that happens is that there is a scheduling conference. There's generally an initial conference with the judge in federal court, it's under 16b, and state rules have their mirror to federal rule 16b where there is an initial conference, it is discussed with the judge what the facts of the case are. And there's a determination as to what discovery is going to be necessary and when those deadlines will be set. And so, there are three types of discovery, there's written discovery, there's oral discovery, and then there is expert discovery.
So, the first step is written discovery. In federal court, you have what are called Rule 26 initial disclosures, they are set questions that both parties, both sides have to answer and provide initially within a set amount of time of the lawsuit being filed and an answer being filed. And then there are interrogatories, these are written questions sent by one party in a lawsuit to another where the responding party must answer under penalty of perjury. And the interrogatories allow the parties to ask the who, what, when, where, and why questions. And they are a great method for obtaining new information. In federal court, they are limited to no more than 25. In state court, it depends on the case. So, in personal injury cases, those are limited to form interrogatories and they're often the same questions in every personal injury case. However, in employment cases for example, they do not have the same limits and are often only limited to documents that are reasonably calculated to lead to the discovery of relevant evidence. That's at least what the case is in New Jersey, and that can lead to very voluminous discovery. There are also requests for production of documents, so those are requests for relevant documents. So, what these requests for documents say for example it's an employment law case, there's going to be requests for personnel files, requests for disciplinary files, requests for policies, requests for information that is relevant to the particular employment case. Another form is request for admission, federal Rule 36 governs admissions, there's often a state rule that mirrors that. And that's a discovery device that allows one party to request that another party admit or deny the truth of a statement under oath. So, request for admissions are generally used toward the end of the discovery process to settle uncontested issues and simplify the trial.
So for example, admission number one, admit that you own the property located at 123 Main Street. Number two, admit that on January 5th, 2020, you were on vacation in the Bahamas and not present at your property. Number three, admit that on January 5th, 2020, there was a snow storm that created 18 inches of snow. Number four, admit that you did not hire contract or make arrangements for snow removal to occur while you were away on vacation. Number five, admit that John Smith fell on the sidewalk in front of 123 Main Street on January 5th, 2020. Obviously, any good lawyer would object to some of these admissions as being overboard, overburdensome, but that's just kind of an example of the omissions are used to narrow down the issues of a case. Next is oral discovery, so these would involve depositions. There would be depositions of party witnesses, the plaintiff and the defendant, or plaintiffs and defendants. And then there's the deposition of fact witnesses. In an employment case, there are the party witnesses, the employer, there would be a representative of the employer. Often in municipal cases, the HR director would be the person that is the representative of the employer. The fact witnesses would be various employees, various vendors, any witnesses who may have seen, or knew, or had any information about the cause of action.
Then there's expert discovery. Often there are going to be independent medical examinations. An IME is a non-biased review of the plaintiff's medical condition as a way to verify that the reported injuries are in fact real, and that the injuries are accurate as to the extent of the physical, emotional, or mental damage that the plaintiff claims. And so in a personal injury case, most insurance companies require IMEs, so those are very routinely done. In something like an employment case, there is something called garden variety emotional distress, where someone can just say, "I in general have emotional distress because of the work condition." And that person will get an IME to confirm that, you know, they're losing sleep, they have increased anxiety, but not something that necessarily has a specific diagnosis. But there can also be severe psychological issues as a result of harassment or discrimination for which there is a diagnosis. Either way, there would be an IME to either confirm or dispute the person's specific conditions.
Next, we have expert depositions. The purpose of that, depending on which side that you're on, the plaintiff's side or the defense side, you wanna show that the expert opinion on the other side is not grounded in the facts of your case. And so, you want to lock in and limit the scope of the expert opinion, and undermine the credibility of the expert opinions offered. And so, you want to also see how strongly the expert defends the opinions offered. 'Cause you may receive a specific expert opinion, but then you get this expert in a deposition and this expert completely crumbles under your questions. And you wanna know that now so that you can make decisions with regard to trial. And the other side is going to see that the expert can't really handle pressure and that can help with leverage with settlement.
Next, you're going to have discovery motions, a motion to compel asks the court to enforce a request for information relevant to a case. And so, the requesting party files a motion to compel discovery responses if the opposing party continues to deny the discovery request. So, often with employment cases, we have confidential information. We have internal affairs files. If it's a law enforcement agency, we have personnel files that are typically confidential. What happens is if the employer is saying we're not going to turn over internal affairs files, we're not going to turn over this specific employment information without a court order, then the other side will file a motion to compel those records in which the court orders it then we turn over the confidential information. There are other times in which there is a request that is so voluminous and so overburdensome that the employer will say, "No, I'm not going to produce that." For example, give me every email that was sent and received regarding this employee. Well, that is a very difficult task because every single email ever sent about this employee that's been working there for 30 years is going to be very burdensome. And often a lot of these emails have nothing to do with anything, and then some of those emails are completely irrelevant and you can have a search that yields hundreds of thousands of emails over a period of time. Often the employer will say, "No, I don't want to provide that information," and there'll be a motion to compel for that information.
So, the next types of motions are motions to quash or motions for a protective order. And generally, these are limiting the scope of a request. The common grounds are for undue burden and expense. So for example, let's say there's an employment sexual harassment lawsuit against a city involving a supervisor and an employee in the clerk's office. So, the employee says supervisor has been sexually harassing me. If plaintiff's counsel served a subpoena or a deposition notice requesting to depose the mayor of the city, and there was no indication that the mayor knows anything about the allegations then that's an undue burden and I'm going to file a motion to quash or for a protective order to prevent the mayor from being deposed.
Next would be motions for sanctions, so that's when improper conduct occurs during litigation. Examples of these would be failure to comply with the court order. So, let's say for example, there is a motion to compel discovery, and the court grants that motion, and that the party continues to not provide that information. There can be a allegation of spoliation of evidence, that could be destroying or withholding evidence. And so, a lawyer seeking sanctions has to file a motion with the court, and a hearing is set where the lawyer has to provide evidence of wrongful conduct. And there are various remedies for sanctions, there can be fines, there can be the fines can be against the actual client or the fines can be against the attorney and the client.
There can be a remedy ordering additional discovery, there can be a remedy excluding testimony or evidence, there can also be an adverse inference instruction to a jury. So, let's say a supervisor is being sued for sexual harassment, and there's a request for their disciplinary file. The employer claims they can't find it, don't know where it is. There are several motions to compel that are granted by the court and the employer still claims they can't find it. "You can file as many motions as you want, I don't have what you need." Plaintiff's counsel could file a motion for sanctions requesting that there be an inference that the employer is withholding the information and that because they are withholding it, there is an inference that it would be unfavorable. So, that is an example of a request for a sanction of an adverse inference, and that can be very detrimental at trial.
Next is the motion for summary judgment. At the close of discovery and before trial, parties will file motions for summary judgment. And this motion asks the court for a judgment on the merits of the case before the trial, and it typically asserts that if all of the allegations contained in plaintiff's complaint are presumed to be true, and there is no dispute about the facts and only a question of law needs to be decided, this is the way that the court should decide. And so, defendants most commonly file these motions, but plaintiffs can file them as well. And so, plaintiffs would file them if they want to prove statutory damages, if they want to knock out affirmative defenses that the defense may assert, or if they want to limit issues for trial. Let's talk about summary judgment from a practical standpoint. In that police officer case that I previously mentioned, after he was acquitted on the obstruction of justice charge he filed a civil rights case against the municipality and the police officer for religious and racial discrimination. I represented the municipality and the police officer, and in civil rights cases the plaintiff must prove that the municipality has a custom or policy of civil rights violations. And in order to prove that, they have to obtain discovery that the police officer has a pattern of doing this, usually that's demonstrated through an officer's disciplinary records or internal affairs files, or they prove that the municipalities has policies that encourage discriminatory behavior. So, that could be through written policies, memos, or emails, discussing policies regarding stops or arrests. In our case, plaintiff could not establish any such customer policy and the federal court granted our motion for summary judgment and dismissed the case against the municipality and the officer. After a motion for summary judgment is decided, there can be an appeal to final judgment. So, in order granting a defendant's motion for summary judgment and dismissing all claims may be appealed as of right. In the case that I mentioned, they could have appealed the summary judgment decision that dismissed the case. Then there can be an appeal to partial summary judgment or a summary judgment denial. So, a partial judgment and a summary judgment denial must lead to appeal as an interlocutory appeal. This is a very high burden and often they cannot be appealed until the conclusion of the case.
So, now we are at trial preparation. And so, you're going to have a pre-trial conference, you're going to have pre-trial submissions and you're going to have motions in limine. So, pre-trial conference is ordered by the court and held in the courtroom to facilitate a face-to-face discussion of the issues of the case. And some cases are not appropriate to go to trial because there was no material issue of dispute or disagreement between the parties. So for example, in New Jersey, we have what is known as a left turn statute. That means if there is a driver going straight and a driver turning left in front of that driver and there is an accident, the left turn driver is presumed to be at fault for the accident. So, let's say a municipal worker is driving a municipal vehicle while on the clock to another location, rushes to make a left turn and hits an oncoming driver. And the oncoming driver has significant and permanent injuries that meet the threshold necessary for damages recovery. This is one of those cases where you probably would like to settle it 'cause there was no material issue of dispute or disagreement. The liability is set because of the left turn statute, and the only thing that's left is a damages calculation, and you'd rather agree on it than let a jury decide. And all parties are expected to make a genuine effort to settle the dispute at the pre-trial conference. There are also pre-trial submissions, often those are set by the court rules. There is specific information that must be submitted to the court and exchanged among the parties prior to the trial date, that's usually set, specific days are set by the court rules. Motions in limine are emotions filed by a party which asks the court for an order ruling, or limiting, or preventing certain evidence from being presented by the other side during the trial. So, there can be motions to preclude evidence of similar claims previously brought against an employer by other employees. So, if I'm defending an employer in a sexual harassment case, I might file a motion in limine to a stop plaintiff from introducing evidence of a previous lawsuit or previous lawsuits brought against the employer. There can be motions to preclude evidence of alleged employee or manager misconduct that's unrelated to the unlawful conduct being alleged. Let's say I'm defending a municipal worker in a sexual harassment case, and the worker previously was suspended for marijuana use. I'm going to argue that this has nothing to do with sexual harassment, and I'd want to file a motion to keep that information out. And then there is motions to preclude treating physicians from testifying as to medical opinions or diagnoses unless they are properly certified as an expert witness. If I am handling a personal injury case, if a doctor diagnosis plaintiff, without any basis whatsoever, with some type of injury, I would file the motion to bar that conclusion and bar the doctor from testifying about that. So, after all this work, we are finally at trial.
First thing you are going to prepare is your trial notebook. This is going to have your witness list, your exhibit list, your voir dire, that's for the jury questions. You're going to have your opening, you're gonna have your direct testimony outline, your cross-examination outline, and an outline of your closing. You're not going to have your closing ready until the conclusion of the trial when both sides have gone, but at least have an idea of what you're going to discuss in your closing. Witness preparation, you have your party witnesses, you have your fact witnesses, and you have your expert witnesses that you're going to prepare. And I can not stress how important it is to prepare your witnesses for everything because your witness can be great with you and be a complete disaster on the stand. So, you want to pay attention how they handle themselves during the depositions, and just assume that they're going to be the same person at trial and try to remedy any mistakes that they may have made, any nerves that they had, try to go over various pieces of their testimony that may become an issue at trial so that there are no surprises and that they're fully prepared. When it comes to expert witnesses, there is Rule 702 in federal, which prescribes that where an expert witnesses' testimony is necessary. Then we have Rule 703, which broadly describes the basis of an expert's opinion. And then under Rules 608 through 613, there are different grounds in which your expert witness can be impeached that have very little to do with the substance of your expert's actual testimony. That can be their character truthfulness, a prior criminal conviction, prior inconsistent statements, so you wanna explain what this means to your expert so they're not surprised or caught off guard if the questioning starts to deviate during cross from their expertise and this starts to go into the realm of character and credibility.
Next, you have your exhibits. You want to pre-mark all of your exhibits, you want a list of all of your exhibits, and you want copies of all your exhibits. What I typically do for trials is I have a binder of all the exhibits that are marked for myself, a binder for the witness, a binder for opposing counsel, a binder for the court. And so, everybody has the same binder with the same exhibits so it's very easy to refer to things. There are tabs so people can quickly move to them. And I usually have an agreement with opposing counsel that this is the appropriate way to go through exhibits. Be prepared for objections. Again, as I said before, the discovery process, the pre-litigation process, the motions in limine have already occurred so there shouldn't be too many surprises, but always be prepared for objections that may occur throughout your presentation of exhibits. Voir dire, this is where you put your jury together. You want to know the rules, and this includes the unwritten rules of your judges preferences. Now, how do you find these out? You will find this out through experience of being in the courtroom, watching the judge, but also through networking and speaking to your various colleagues about the judge. So, if you're in a law firm that's large enough that people have the experience with this judge, you can speak to more experienced practitioners in your law firm. If you're in a smaller law firm, you're going to want to network with people in various local bar associations to have the relationships established to where you can reach out to someone and say, "Hey, you practice in front of Judge Jones, please tell me how they typically handle voir dire." You want to know your theme. If you're defending an employment case against someone who was fired for excessive tardiness, you want people on your jury who believe in hard work, and showing up on time, even when they don't want to. You're going to want to tailor your questions to the specific theme of hard work and showing up.
Then you want to know how to remove jurors. You have the removal for cause as a challenge that aims to disqualify a potential juror for some stated reason. That can include bias, prejudice, prior knowledge that would prevent them from impartially evaluating the case. So for example, I was called for jury duty, the last time I was called for jury duty was March of 2020, which you can imagine was a very interesting time to be called for jury. But I was assigned to a courtroom where I knew the judge, I knew defense counsel, and I knew one of the experts that was going to be used as an expert witness, so I was removed. So, that would be an example of a for cause removal. Peremptory challenge is the exclusion of a potential juror without the need for any reason or explanation. The exception to this is if the opposing party presents a prima facie argument that this challenge was used to discriminate on the basis of race, ethnicity, or sex. And so, peremptory challenges have their historical controversy. They have been used in the past for discriminatory reasons, and the courts are always evaluating and ensuring that the removal of jurors is not for discriminatory reasons on the basis of race, ethnicity, or sex, or any of the other protected categories.
So, you've chosen your jury, the trial is beginning, and you are doing your opening statement. And so, the purpose of an opening statement by each side is to tell the jurors something about the case that they will be hearing. And so, the opening statements must be confined to the facts that will be proved by the evidence and can't be argumentative. This is really your first opportunity to address the jury, and you're going to tell a story. That same theme that you started with in voir dire, you're going to continue that theme throughout the opening statement, you're gonna keep that theme in the back of their minds throughout the process of the trial. And you're gonna close out with that when you do your closing argument. You're going to tell that story in plain language, you want to avoid using legalese to the best of your ability. Obviously, if it's a personal injury case and you have to discuss specific diagnoses, then you will discuss them, but try to discuss it in a way that uses a lot of plain language so that they can understand it. And you want to make your client look good. If your client has a disciplinary record that is going to come out, get that out at the beginning, get that out, explain it, explain that the person has been a stellar five-star employee since their mistake that they made. Make your client look good under any circumstance. The plaintiff's case involves direct examination, cross examination, and then redirect and recross. So, direct examination is a series of open-ended questions by an attorney directed to a witness, and there can be no leading questions. Cross examination by contrast are questions that are very pointed, they are specific, and they suggest either a yes or no answer. And so, one lesson that I learned was to never ask a question on cross that you do not know the answer to. You always want to know the answers to the questions that you ask on cross, yes or no. And then redirect and recross, that's an opportunity to ask more questions, has to be within the context of the testimony given. And it's often used as a way to clarify or get additional information, and it's also a way to impeach a witness. And then you have the defendant's case. And at the close of the plaintiff's case, the defendant will make a motion for a directed verdict. That's often the first thing that is done at the opening of the defendant's case. The motion is made before a case is submitted to the jury and it argues that no reasonable jury could find for the opposing party. Now, either the plaintiff or the defendant can make this motion, but it's most commonly made by defense following the conclusion of the plaintiff's case. And I have seen motions for directed verdict that are granted. It is not as common, but it does happen. And so, it's very important to make that motion and to preserve that motion for appeal. Next, there is direct examination, cross examination, redirect and recross, the same process. And then there is the closing.
And from there, there is the verdict. So, we already discussed the directed verdict. Then there is a general verdict which asks the jury one or two questions going to the ultimate issues. Do you find for the plaintiff or the defendant? It allows a jury to decide who wins. A special verdict asks the jury to answer a series of fact questions. For example, do you find that defendant violated the standard of care? If so, do you find that this violation caused injury to the plaintiff? And if so, what damages do you award? And then afterwards, the court applies the law to the factual findings of the jury and enters a judgment accordingly. So, a special verdict can provide many benefits in a complex case, especially if one party appeals the judgment.
And now, we have post-trial motions. There can be a motion for judgment notwithstanding the verdict. This is a motion that may be made after the jury's verdict is announced, but before a judgment is entered. And this motion asks the jury to enter a judgment for the losing party despite the decision of the jury. Then there was also a motion for a new trial, so a party post-trial requests that the court vacate the judgment and orders a new trial to re-examine some or all of the matters from the concluded trial.
Often a motion for new trial is made together with a motion for judgment as a matter of law or a judgment notwithstanding the verdict. So for example, our firm was defending a discrimination case where a employee was suing the employer for discrimination. And another firm had handled in loss at trial, and the jury awarded a verdict of over a million dollars. So, our office handled the post-trial motions, we got a new trial, and we were able to reduce the verdict significantly to five figures. Now, obviously five figures is still a judgment against the client, but significantly less than a million dollar verdict. Post-trial appeals, so there can be appeals to the intermediate appellate court. So, in that civil rights case that I told you about that we won on summary judgment, that was in New Jersey Federal Court. And they could have appealed that decision to the United States Court of Appeals for the Third Circuit. And then based on the outcome of that case, the next step would be to the United States Supreme Court. If the same case had been in state court, it would have been appealed to the New Jersey Appellate Division, and then the next step would have been the New Jersey Supreme Court. These appeals are expensive, they required billable hours, they require a lot of writing, a lot of thinking, and very different standards of review.
And so, it is not uncommon for cases to have post-trial settlements. And so, you think to yourself, well, if you are a plaintiff in a case and you just got a $10 million verdict, why would you settle this case? Well, because appeals may take several years and you may need some money now, or you may be so exhausted for the amount of time that it took to litigate to get to this verdict that it may be just worth your peace of mind to settle it for less. And you don't want to go through the risk of having a whole new trial, of having the verdict significantly reduced, you don't want to put it into somebody else's hands. And so settlement will give you the peace of mind and the finality. And so, a lot of times there will be post-trial settlements, where the person will take less than what the verdict gave to avoid the risk and the time and money that it will take to litigate further.
So, let's say we have gotten through the verdict, there are not going to be any appeals, and the other side is not paying up, then we go to enforcement actions. Now, this is obviously much easier to enforce if you're dealing with an insurance company, or a corporation, or a government entity, it's a lot trickier when you have a judgment against an individual, but the first step would be a writ of execution. And this is a court order that allows a sheriff or another authority to seize the debtor's property to be sold at a sheriff sale, and the proceeds of that sale would be then use to pay back debts. There can also be a motion to enforce filed with the court, a motion for sanctions, go through collections. And then there would be garnishment where you provide the judgment to the court and you apply for a garnishment order where that could attach to the person's wages, and a mountain of wages can be provided out of that garnishment order to satisfy the judgment. Now, you cannot get blood out of a stone, you can not garnish the wages of someone who has no wages. And so, you just wanna be aware of what your limitations are in enforcing the judgment.
So, let's talk about alternative dispute resolution. Litigation is expensive, and a lot of people don't have an understanding of how expensive it can be. So, we start with filing fees. So, to file the summons and complaint, that usually runs between 250 to $500. And so, I always say anyone with $500 can file a lawsuit. But after that, that's where things really get expensive. So, we have depositions, so those transcripts run about a thousand in a simple case, and can be significantly more in more complex cases. And once you have 10, 15, 20 witnesses, that is already a very large chunk of money. Then you have medical and expert witnesses, they have to do reports, those are about 750 to $1,500 per doctor or expert. You have hospital records and medical office records, that's about $500 per provider. That brings us to the eve of trial. We have experts, doctors, engineers, economists, depending what the case is, life care planners if there is personal injury, they all require from about 7,500 to $10,000 for their testimony. Because keep in mind, these are experts that would have been paid somewhere else if they weren't sitting in a courtroom all day waiting to be called to give testimony. And remember, that each side is hiring these experts for themselves, so both sides have significant costs, and this is a factor in pushing the parties to settle a case before trial.
Then we have something called fee shifting. Fee shifting statutes and rules vary, but fee shifting is what allows a prevailing injured party to shift the responsibility for payment of its legal fees to its adversary. So, some federal and state statutes call for fee shifting. One example is the federal Civil Rights Act, this can incentivize settlement as the case goes on. And the more depositions you take, the more motions you file, the more fees increase, and fees that either side it may need to pay the other if there is an adverse verdict. Settlement negotiations. Statistically, 90% of all lawsuits filed are settled before trial. Of the 10% of the cases that go to trial, 90% of them settle before verdict, therefore a small percentage of cases are ever tried to conclusion. So, federal Rule 408 governs settlement negotiations, and that states that evidence of conduct or statements made in settlement negotiations are not admissible. So, any settlement discussions that you have with the other side are not admissible at trial, cannot be used against you. If you're a plaintiff's attorney and you're demanding a million dollars. And then at the settlement conference you brought your demand down to half a million dollars, that cannot be used against you later. And that gives the parties the ability to really have good faith settlement discussions in attempts to resolve the matter.
Now, many cases settle right before trial. And when I say right before trial, I mean right before trial, after you've lost sleep, prepped for hours and hours. So I am, as I said before, a municipal prosecutor. And a week before I recorded this, I had a municipal trial that I stayed up late preparing for. I left to get to the office early and to prepare copies of exhibit binders for the witnesses and the judge because typically I'll stay up all night preparing I'll have a list of all the exhibits ready, everything is electronically saved and ready to be printed, and then I'll go in early and I'll print everything out and review everything just so everything's fresh in my mind. So, there was an ice storm that morning, so my 15 minute commute to the office turned into a nearly two hour commute. So, I get to the office, my witnesses are stuck in the same traffic, I'm scrambling to finish what I thought was going to be a leisurely final printout of exhibits, the witnesses finally got there. We log into the court Zoom and the defendant hired a lawyer 30 minutes before the trial. So, we had to grant the adjournment because the attorney had the right to review all of the discovery.
So, I tell you this real life story to remind you that none of the time that you spend in litigation is a waste of time, you always want to be prepared, and you always want to be prepared to not go forward. Nothing has gone wrong, but it's better to be prepared and not go forward than to assume that it's not to go forward and then not be prepared. Mediation is a huge part of dispute resolution. It is a procedure in which the parties discuss their disputes in an attempt to reach a settlement. It may be an informal meeting among the parties or a scheduled settlement conference that is usually covered by an impartial individual. This is a non-binding process and settlement confidentiality rules that we discussed before apply. Mediations can be informal with a court appointed mediator, a mediator of the parties choice, often a retired judge is used as a mediator, and I've had mediations where there is not an impartial party, but just getting all the parties into the room and informally discussing settlement has worked. I do a lot of government employment litigation, and often these types of cases involve long-term employees who really just want to be heard, And I've found that these informal mediations where you get the maybe the municipalities chief council in the room with the employee that has been there for 20 years and they just have a conversation, it's amazing how everyone's stonewalling begins to break down when they just are able to be heard.
Arbitration, so there's binding arbitration and non-binding arbitration. Binding arbitration means that the parties waive their right to a trial and agree to accept the arbitrator's decision as final.
And then there's nonbinding arbitration, which means that the parties are free to request a trial if they do not accept the arbitrators decision. This is often called the de novo, which means from the beginning or anew, and this is very common in personal injury cases. The attorneys will present the expert reports and economic damages information to the arbitrator. The arbitrator will make a determination regarding the damages amount against the defendant. The defendant will often file a de novo with the court and the case will go forward to trial. But the plaintiff has some leverage at that point because they now have a settlement number to work with because an arbitrator assigned a value to this case. So, those are the types of alternative dispute resolution. So, we have discussed what litigation is, we have discussed the common types of litigation, and we have gone through all the steps of litigation.
And so, I want you to be aware of the various resources that are available to you. State and local bar associations, I cannot stress how important it is to at least know the people, go to their events, and that's how you build your professional network.
Your professional network is invaluable, and it is so important to stay connected with other people. Law and litigation can become a very isolating practice, and I always stress how important it is to be in community and to make friends with people in this practice, they can be invaluable, they can encourage you, and they can point you in the right direction when you feel completely stuck.
I can also be a resource. My name is Cheyne Scott, I'm with Chasan Lamparello Mallon & Cappuzzo. And I have placed my email in the slide if you have additional questions for me.
I want to thank everyone for your time. I thank everyone for listening to this presentation, feel free to reach out to me if you have any questions or comments. And I hope everyone continues to stay safe and healthy, and have a great day, thanks.