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Lawsuits and Litigation

Lawsuits are frequently discussed in the news and people often hear of threats to sue. Generally speaking, a lawsuit is a tool to resolve a legal dispute with one or more persons, companies, or government entities. Lawsuits can be expensive, time consuming, and slow or they can be fast and relatively inexpensive.

Beginning a lawsuit.

Most people believe that in order to start a lawsuit, something needs to be “filed” with the court. In North Dakota and Minnesota state courts, this is not the case. A person can start a lawsuit by preparing a summons and complaint and serving it on another person. A summons provides notice to someone that they have been sued. A complaint is a claim made by one person against another person. It will usually list a factual basis for the claim and will state a legal theory for the claim (e.g. breach of contract or negligence). Serving or service is the process of providing legal paperwork to someone. When starting a lawsuit, the sheriff or a private process server frequently does this by handing the documents to the defendant.

After the summons and complaint are served on the defendant, the defendant will prepare an answer. An answer will either admit or deny liability by admitting or denying each and every paragraph in the complaint. If the defendant does not prepare an answer, then they are at risk of being in default and having judgment entered against them.

When a defendant is answering, it may want to consider filing a counterclaim, a cross claim (if there is more than one defendant), or preparing a third-party complaint.

Discovery.

The purpose of discovery is to conduct a factual investigation regarding the disputed issues involved in the lawsuit. Each party to the lawsuit has the ability to request a deposition, prepare interrogatories, requests for production of documents, and requests for admission. Less frequently used methods of discovery include request to inspect land, independent medical examination, and requests for authorizations.

Depositions are interviews by one party of any person taken under oath. These can last anywhere from an hour or to several days. Exhibits are frequently used during depositions as well. A court reporter is present during the deposition and takes down everything that is said. The depositions can be video recorded as well.

Interrogatories are written questions from one party to the other that must be answered under oath and in writing. Sometimes a party will include exhibits in their answers to interrogatories. Interrogatories are similar to short answer or essay questions on an exam.

Requests for production of documents are written requests from one party to the other to provide documents related to the alleged claims or defenses. Generally speaking, a person only has an obligation to turn over documents they have in their custody or control.

Requests for admission are similar to true or false questions on an exam. One party will ask the other party to admit or deny that something is true. If the party on whom the requests for admission are served do not respond in the appropriate time frame, they are deemed admitted.

During the discovery stage, a party should also consider whether a third party has documents that could relate to their claim. If so, they may want to use a subpoena to obtain those documents.

Motion Practice.

A motion can take place any time and a party can make a motion for many different reasons. Broadly speaking, a motion is a request by a party for the court to take some sort of action. In a typical motion, a persuasive brief needs to be filed with the court and there may be an oral argument.

In some cases, a motion will be filed after discovery is complete to challenge the legal sufficiency of a claim. This is called a “motion for summary judgment.” A motion for summary judgment sets aside the factual disputes in a case by viewing all of the evidence in favor of the non-moving party and then analyzes whether the non-moving party has a legally sufficient claim with the evidence viewed most favorably to the non-moving party.

There are frequently motions that will occur shortly before trial. These are normally called a “motion in limine” (Latin for “at the start”). A motion in limine requests the judge to make a decision regarding the admissibility, or use of, evidence at trial.

The variety of different motion that might apply to a case is too numerous to list here. If you have any specific questions regarding motion practice as it relates to a lawsuit you are a part of, you should consult an attorney.

 Trial.

The purpose of a trial is to resolve factual disputes. Either a jury or a judge resolves the factual disputes. In some instances, it may not be appropriate for a jury to resolve the factual disputes. The most common example of this is in divorces.

Trials take on a variety of structures but the most common and formal structure is opening arguments, the plaintiff’s case in chief, the defendant’s case in chief, and closing arguments. A case in chief is that party’s opportunity to call witnesses and submit exhibits to the court.

Judgment.

If a case goes to trial, the court will likely enter a judgment resolving the case. A judgment is generally the final order entered by the court in the case. The date of the entry of the judgment generally determines when a notice of appeal must be filed. If your case involves the collection of money, the judgment can be used to attempt to collect what is owed by garnishment or seizure of assets.  Unfortunately, even if you win a judgment, you may never collect as a party may be difficult to track down or even declare bankruptcy.

 Settlement.

During all stages of litigation, the parties have the ability to resolve their disputes by settling their claims. The lawyers discuss the facts of the case, the law that applies to the case, and what they view as the likely outcome of the case. The majority of civil cases settle. The settlement terms can include the payment of money, a promise to do some future act, or some promise to discontinue some act, among other things.  At Fremstad Law we encourage early settlement discussions.  This requires our clients to be knowledgeable and work to ensure we know everything possible at the case. If a case can be settled quickly, it frees up the clients to focus on things that may be more important and of course saves on attorney fees.

If you are considering bringing a law suit or are being sued, Fremstad Law can help.  Please call James Teigland or Joel Fremstad at 701-478-7620.

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