Foster Swift Health Care Law E-News
October 11, 2012
Health care providers can be subject to or involved in many different types of lawsuits. For example, medical malpractice claims, employment claims, or contractual disputes with vendors (just to name a few), are common. Thus, it is important for health care providers to understand the litigation process. This article outlines what happens in a lawsuit when you find yourself in a situation where you need to sue someone or someone has sued you.
Retaining an Attorney
If you are going to bring a lawsuit against someone or some company, the first step is to retain an attorney to represent you. If you are being sued, call your attorney (if you have one) as soon as possible, otherwise find and retain an attorney with expertise in the type of litigation presented. If you have a liability insurance policy that covers this kind a situation, call your insurance company’s claims department, report the claim as soon as possible and forward the lawsuit papers to them as well. Usually the insurance company will retain and pay for an attorney experienced in the type of lawsuit, and pay litigation costs.
Attorneys are trained and knowledgeable with the court rules that govern litigation, including the important deadlines for filing or responding to a lawsuit. Failure to comply with deadlines could have serious financial implications for you or your business. The rules and deadlines in litigation are different in each case and depend upon what court has jurisdiction over the lawsuit, which judge is assigned to the case, what types of parties are involved, and what claims are at stake. This article provides an overview of different litigation stages to provide a basic understanding of what happens in a lawsuit.
A plaintiff begins a lawsuit by filing a complaint with the court clerk’s office. In numbered paragraphs, the complaint will explain the jurisdiction (what court has the power to hear the case), venue (where the lawsuit may be filed), claims or counts (for example, breach of contract or negligence), and damages (how much money or what relief the plaintiff wants from the defendant) in a case. The complaint may ask for a jury if the plaintiff wants a jury trial. If no jury trial is demanded, the case will be decided by a judge alone. Where the complaint is filed depends on the dollar amount of the claimed damages, the type of claims, and where the parties live or do business.
The Summons and Service
Along with the complaint, a paper called a summons gets filed and issued by the court. The summons is a notice to the defendant(s) that a lawsuit has been filed against them, what court the lawsuit has been filed in, the court’s case number, the date the case was filed and the number of days before a response is required. The Plaintiff who filed suit has a duty to deliver (to “serve”) the summons and the complaint to the defendant(s) putting the defendant(s) on notice that they have been sued and need to respond in writing within a certain number of days. Service of process of the summons and complaint is possible by a number of methods, but typically it is by personal service, i.e. a process server or someone else personally hands the papers to the defendant(s), or by certified mail.
First Responsive Pleading
The person sued - the defendant - must respond to the complaint within a deadline set by the applicable rules or a default will enter. A defendant may respond in an answer that admits or denies each of the plaintiff's allegations in the complaint. The answer will list defenses and counter-claims or cross-claims against the plaintiff or other defendants. The answer will state whether the defendant wants a jury trial. A defendant may respond by filing a motion in lieu of an answer, which seeks immediate dismissal of all or part of the complaint. The judge will grant or deny the motion, and the case will either be dismissed or continue and the defendant will answer the complaint.
The judge will issue a scheduling order for each case, setting important deadlines for when the parties must exchange information, file motions, or go to trial.
Discovery is the time period during which the parties request and obtain information from each other. The court rules set specific requirements for how the parties may seek and produce this information. If a plaintiff or defendant fails to respond to another party's request as required by the rules, that party may file a motion to compel responses and go before the judge to seek an order compelling (or opposing) the requested discovery information. Often parties will depose witnesses, including the parties themselves, in the case. At a deposition, attorneys ask a witness questions, the witness answers while under oath, and everything said is typed word-for-word into a transcript by a court reporter. The parties then use the transcripts of the deposition for various purposes in the litigation.
Motions are a way for parties to ask the judge supervising the lawsuit in writing for specific relief, including dismissal or judgment of a case. Motions are accompanied by written "briefs" (often a misnomer, at best) that explains the legal arguments supporting the requested relief. Motions may attach many exhibits to help explain why the relief should be granted or not. If one party files a motion, the opposing party will have the chance to file a written response. The judge will schedule oral argument on the motion, where the attorneys will have to appear in court and verbally explain their position. The judge will make a decision, either orally at the hearing or in a written order or opinion. Parties are bound by the judge’s decision, unless they choose to seek relief from a “higher” appellate court.
Case Evaluation, Mediation, and Settlement
All court systems have processes to encourage parties to settle their differences out of court, rather than going to trial. Michigan state courts require parties to participate in “case evaluation” in which a panel of seasoned attorneys evaluates the case and assigns a monetary value to suggest an amount the parties should consider settling their case for. If the parties mutually accept the case evaluation award, the case is settled. Rejection of case evaluation has implications after trial, with the loser possibly having to pay sanctions over and above the adverse verdict amount. At other times, the parties may engage in “mediation” (also known as alternate dispute resolution or ADR) to try to settle the case. Mediation is essentially a privately conducted settlement conference led by an attorney trained and experienced in case resolution techniques. When a case is settled through direct negotiations or case evaluation or mediation, the case is resolved, typically without the necessity of a trial. Settlement can occur at anytime, including during trial, after trial or even on appeal. An order dismissing the case will be entered and a settlement agreement is signed by the parties after a settlement mandating the parties to comply with its terms.
After discovery has concluded, if the case does not settle and is not resolved by a motion for summary disposition or judgment, the case will go to trial. Trial requires extensive preparation on the part of attorneys. In a jury trial, the jury is the fact-finder; in a bench trial, the judge decides the facts. In all trials, the judge rules on objections and motions to exclude certain evidence or testimony. At trial, attorneys will present evidence by way of exhibits and witnesses and argue their client’s position. The jury (or judge in a bench trial) will deliberate and render a verdict and a judgment order will be entered based on the verdict. Once the trial has concluded, the parties may submit post-trial motions or briefs. Attorneys may appeal the judgment entered after a trial.
In an appeal, a trial court's decision is revisited by an appellate court. Appeals may happen at various times in a case. Depending on the type of appeal, the attorney may have to first seek discretionary leave from the appellate court to see if it will take the appeal. Sometimes a stay is needed to keep the case from continuing while an issue is on appeal. Appellate briefs explain why a trial court's decision should be affirmed or reversed and rely on citations to statutes and prior appellate court decisions as authority for their arguments. Rules in appellate courts are different than those at the trial court level. Often attorneys specializing in appellate litigation handle appeals.
As this overview shows, knowing and following the complex rules is very important in litigation. Contact a litigator at Foster Swift such as Bruce Vande Vusse at 248.538.6330 or Liza Moore at 517.371.8281 if you find yourself involved in a lawsuit or if you have questions about what happens in a lawsuit.