Articles - FAQs
1. Have been wronged. Should I sue?
If the matter is one that would be considered petty but you feel you have been wronged and you want to sue as a matter of principle to show them - wisdom suggests that you might sleep on the matter first.
Just because you were harmed or slighted or suffered minor damage does not automatically mean that you have a real legal case and should sue. We suggest that if the matter involves few dollars, you consider forgetting it or going to small claims court. No lawyer would be able to spend any of his or her valuable time on a shirt that the dry cleaner ruined, a small parking lot dent to a parked car, or a lower raise than you had hoped for at work.
2. If I am sued and I win, does the losing party have to reimburse me for my court costs and attorney fees?
Under common law court systems like the ones that exist in England and the United States, there are two rules that determine who pays court costs and attorney’s fees. Under the English rule, followed in England and Wales, the loser pays these fees and costs. Believing that “costs follow the event", a winning party is entitled to an order that will allow the recovery of reasonable costs expended during the course of the litigation. These costs can include witness fees, attorney fees and professional fees for non-witnesses.
A different rule is followed in the United States, however. Under the "American Rule", each party to a lawsuit pays his own costs, irrespective of who won or lost. This rule allows individuals to pursue litigation without fear that costs will be excessive. There are exceptions, however, where costs are allocated to the losing side under certain circumstances. The exceptions vary by state and also by the type of case.
On example of an exception is in certain contract cases where the parties to the contract have agreed beforehand who will pay court costs and fees when a suit is filed over disputed provisions. State and federal statutes can also dictate who will have to pay court costs in a given situation. A Wisconsin law, for example, requires the loser to pay attorney fees where an appeal was filed solely to delay proceedings. Judges can order the losing side to pay costs when it is "equitable" or fair for them to do so. In certain cases, a judge can order the loser to pay costs when the underlying lawsuit filed was frivolous or without grounds and the defendant wins.
If you have filed a lawsuit or are thinking of doing so and are worried about paying costs and attorney’s fees, you should consult a lawyer and learn more about the specific law in your area with respect to these items.
3. What alternatives are available instead of filing a lawsuit? What is ADR?
There are several different alternatives to filing a lawsuit, depending on exactly what your legal situation is. Many of these alternatives are part of a system called alternative dispute resolution or ADR. Use of the alternative dispute resolution system has become increasingly popular, since it can be less expensive and quicker than going through a whole court proceeding. In fact, in some cases, a court will require you to try the ADR system before they will even hear the case. In still other cases, you may be required by contract to use the ADR system.
Alternative Dispute Resolution (ADR) Options
So, what exactly are your options under the alternative dispute resolution (ADR) system? It is going to depend on exactly what type of suit or court preceding you are trying to avoid, but in general, your options are going to be:
Negotiation
Mediation
Arbitration
Negotiation: involves trying to come to some type of deal on an issue without involving the courts. Assume, for example, you get into a car accident that is caused by someone else and you are thinking of suing the person. Before you do, his insurance company may offer you a settlement (an out of court cash payment in exchange for which you will need to sign a liability release and give up all rights to sue). You can engage in negotiation with the insurer, and if you come to a deal, can settle out of court. Negotiation is optional, of course, and if you don't come to a deal, you can walk away and sue at any time.
Mediation: sort of takes negotiation to the next level. Here, instead of just negotiating with the potential defendant, or his insurer, a third party mediator gets involved in order to help you negotiate. The mediator isn't going to make any binding decisions; s/he just facilitates open and calm communication between opposing parties to try to come up with a deal. Mediation is usually voluntary, and the parties can walk away at any time; however, some courts may require that people at least try mediation for certain kinds of cases before the court will hear the dispute.
Arbitration: is a third alternative to filing suit. Unlike mediation or negotiation, the arbitrator is going to make a decision about the case and it is going to be binding. Essentially, he's like a judge, but an independent judge who doesn't have the same legal authority as a standard judge to do things like hold you in contempt of court. Arbitration is a common method of resolving certain disputes; for example, many contracts contain an arbitration clause requiring some disputes to be submitted to arbitration instead of litigation.
Getting Help with ADR
If you are considering any of these alternative resolution methods, you'll want a lawyer's advice on whether that method is right for you or if you should be filing a lawsuit instead.
4. What are the possible benefits of notifying my insurance company before a lawsuit?
Depending upon the basis for the lawsuit, you may be covered by liability insurance that will both pay for the cost of your defense and any judgment that you may owe (up to the amount of your coverage).
5. What is a lawsuit?
A lawsuit is a civil legal action brought in a court. Typically one party is suing another party for money or other property. (The term party can include individuals, businesses and government agencies.)
The person suing is typically called the plaintiff; the person being sued is the defendant.
Lawsuits sometimes also involve an action to enjoin - a legal term than means restrain or stop a party from doing something, such as picketing or trespassing on your property or disclosing confidential information.
A lawsuit is one way that people and companies can resolve disputes arising out of an infinite variety of factual circumstances.
6. What is substantive law?
Substantive law is the aspect of law that defines and regulates the rights of individuals and legal entities. It is one of the two main categories within the law with procedural law being the other. Substantive law takes into account what is right and wrong, and embodies the idea that committing a wrong will result in some type of penalty against the wrongdoer as described under the law. Substantive law encompasses all areas of torts, contract law, real property, constitutional law, family law, wills and estates, etc.
7. Who cannot be sued under the rules of sovereign immunity?
Under the rules of sovereign immunity, judges and certain other government employees cannot be sued for their official acts. Sovereign immunity exists to protect these individuals and to allow them to do their jobs without fear of litigation. Without sovereign immunity, a judge, police officer or other officer of the government or court might be afraid to act out of fear of legal repercussions.
The term sovereign immunity originated in the beginning of the English common law system, and means that the ruler or sovereign government of the country under its rule cannot be persecuted or sued under civil or judicial law. The term was created to describe the English law or “crown immunity” and reinforce the adage that “The king can do no wrong”. This form of immunity doesn't exist to quite the same extent in today's governments as it did under English law, though there are still remnants of sovereign immunity stating that different governmental entities are immune from certain legal actions.
Sovereign immunity exists at both the federal and state level in the U.S. The 11th Amendment protects sovereign immunity, for example, and indicates that states may not be sued in a federal court unless they have consented to being sued. The federal government and government representatives also generally may not be sued under sovereign immunity, unless they too consent. Surprisingly, various forms of consent do exist. Laws such as the Federal Tort Claims Act allow for the suit of a federal employee that has caused harm, and the federal government or government officials may also be sued for breaching a contract under the Tucker Act.
If you have been involved in a dispute with a government official and you would like to sue, you should consult with an attorney as soon as possible to determine if your claim falls within an exception to sovereign immunity.
8. What are "rules of civil procedure"?
Jurisdiction:
The jurisdiction of a case determines where the case can or must be heard. In order for a case to appear in federal court, it must either be involving parties from two different states or countries .
Another way that a case can be heard in federal court is if the case is regarding a federal law. Examples of federal laws include EPA guidelines, civil rights cases, and gun law restrictions. As a general rule, any case not heard in federal court is by default a state issue and can be heard in any state court where at least one party to the case is a resident.
Filing Rules and Procedure:
Civil procedure further governs the particulars of how a case is filed including how the documents must read and be organized. For instance, a complaint must specifically list the parties to the case, jurisdictional reasons, as well as the legal claims. Additionally, there are rules regarding the way the complaint is served and how long the other party has to file their answer with the court. The rules also give guidance as to when motions can be filed by the parties in the case to end the case in the filing stage.
Discovery and Pre-trial solutions the rules of civil procedure dictate that after both sides have filed all the complaints, answers, and responses, they can then proceed to request permission for discovery. In this stage, parties are given the court’s permission to search through the property of the other party in an attempt to find valuable information regarding their case. The rules of civil procedure even go so far as to make it illegal for either party to destroy evidence beginning as soon as the complaint is filed. During discovery, the parties will also meet with a judge who may order mediation or arbitration to attempt an early solution to the matter at issue.
Trial:
The rules of civil procedure naturally govern the trial including jury selection, pretrial motions, and the actual trial. Under the rules of civil procedure, parties can choose between a jury or bench trial. Bench trials save time and money and typically guarantee a more accurate decision. Parties are then permitted to select jurors. When selecting jurors, the rules of civil procedure limit the amount of jurors that the attorneys can dismiss, so that the jury is less likely to be stacked. Finally, the rules of civil procedure work alongside the rules of evidence during the trial to ensure that both parties in the case act with the utmost dignity and decorum.
Appeals:
Once a trial is complete, the rules of civil procedure outline the appeals process. The rules of civil procedure dictate that cases may only be appealed by an injured party and there must be specific evidence of errors on the part of the judge in order for the appeal to even be considered. The rules also dictate the specific time frame where an appeal can be filed and how long the appeals court has to read the appeal and respond to the parties.
1. Have been wronged. Should I sue?
If the matter is one that would be considered petty but you feel you have been wronged and you want to sue as a matter of principle to show them - wisdom suggests that you might sleep on the matter first.
Just because you were harmed or slighted or suffered minor damage does not automatically mean that you have a real legal case and should sue. We suggest that if the matter involves few dollars, you consider forgetting it or going to small claims court. No lawyer would be able to spend any of his or her valuable time on a shirt that the dry cleaner ruined, a small parking lot dent to a parked car, or a lower raise than you had hoped for at work.
2. If I am sued and I win, does the losing party have to reimburse me for my court costs and attorney fees?
Under common law court systems like the ones that exist in England and the United States, there are two rules that determine who pays court costs and attorney’s fees. Under the English rule, followed in England and Wales, the loser pays these fees and costs. Believing that “costs follow the event", a winning party is entitled to an order that will allow the recovery of reasonable costs expended during the course of the litigation. These costs can include witness fees, attorney fees and professional fees for non-witnesses.
A different rule is followed in the United States, however. Under the "American Rule", each party to a lawsuit pays his own costs, irrespective of who won or lost. This rule allows individuals to pursue litigation without fear that costs will be excessive. There are exceptions, however, where costs are allocated to the losing side under certain circumstances. The exceptions vary by state and also by the type of case.
On example of an exception is in certain contract cases where the parties to the contract have agreed beforehand who will pay court costs and fees when a suit is filed over disputed provisions. State and federal statutes can also dictate who will have to pay court costs in a given situation. A Wisconsin law, for example, requires the loser to pay attorney fees where an appeal was filed solely to delay proceedings. Judges can order the losing side to pay costs when it is "equitable" or fair for them to do so. In certain cases, a judge can order the loser to pay costs when the underlying lawsuit filed was frivolous or without grounds and the defendant wins.
If you have filed a lawsuit or are thinking of doing so and are worried about paying costs and attorney’s fees, you should consult a lawyer and learn more about the specific law in your area with respect to these items.
3. What alternatives are available instead of filing a lawsuit? What is ADR?
There are several different alternatives to filing a lawsuit, depending on exactly what your legal situation is. Many of these alternatives are part of a system called alternative dispute resolution or ADR. Use of the alternative dispute resolution system has become increasingly popular, since it can be less expensive and quicker than going through a whole court proceeding. In fact, in some cases, a court will require you to try the ADR system before they will even hear the case. In still other cases, you may be required by contract to use the ADR system.
Alternative Dispute Resolution (ADR) Options
So, what exactly are your options under the alternative dispute resolution (ADR) system? It is going to depend on exactly what type of suit or court preceding you are trying to avoid, but in general, your options are going to be:
Negotiation
Mediation
Arbitration
Negotiation: involves trying to come to some type of deal on an issue without involving the courts. Assume, for example, you get into a car accident that is caused by someone else and you are thinking of suing the person. Before you do, his insurance company may offer you a settlement (an out of court cash payment in exchange for which you will need to sign a liability release and give up all rights to sue). You can engage in negotiation with the insurer, and if you come to a deal, can settle out of court. Negotiation is optional, of course, and if you don't come to a deal, you can walk away and sue at any time.
Mediation: sort of takes negotiation to the next level. Here, instead of just negotiating with the potential defendant, or his insurer, a third party mediator gets involved in order to help you negotiate. The mediator isn't going to make any binding decisions; s/he just facilitates open and calm communication between opposing parties to try to come up with a deal. Mediation is usually voluntary, and the parties can walk away at any time; however, some courts may require that people at least try mediation for certain kinds of cases before the court will hear the dispute.
Arbitration: is a third alternative to filing suit. Unlike mediation or negotiation, the arbitrator is going to make a decision about the case and it is going to be binding. Essentially, he's like a judge, but an independent judge who doesn't have the same legal authority as a standard judge to do things like hold you in contempt of court. Arbitration is a common method of resolving certain disputes; for example, many contracts contain an arbitration clause requiring some disputes to be submitted to arbitration instead of litigation.
Getting Help with ADR
If you are considering any of these alternative resolution methods, you'll want a lawyer's advice on whether that method is right for you or if you should be filing a lawsuit instead.
4. What are the possible benefits of notifying my insurance company before a lawsuit?
Depending upon the basis for the lawsuit, you may be covered by liability insurance that will both pay for the cost of your defense and any judgment that you may owe (up to the amount of your coverage).
5. What is a lawsuit?
A lawsuit is a civil legal action brought in a court. Typically one party is suing another party for money or other property. (The term party can include individuals, businesses and government agencies.)
The person suing is typically called the plaintiff; the person being sued is the defendant.
Lawsuits sometimes also involve an action to enjoin - a legal term than means restrain or stop a party from doing something, such as picketing or trespassing on your property or disclosing confidential information.
A lawsuit is one way that people and companies can resolve disputes arising out of an infinite variety of factual circumstances.
6. What is substantive law?
Substantive law is the aspect of law that defines and regulates the rights of individuals and legal entities. It is one of the two main categories within the law with procedural law being the other. Substantive law takes into account what is right and wrong, and embodies the idea that committing a wrong will result in some type of penalty against the wrongdoer as described under the law. Substantive law encompasses all areas of torts, contract law, real property, constitutional law, family law, wills and estates, etc.
7. Who cannot be sued under the rules of sovereign immunity?
Under the rules of sovereign immunity, judges and certain other government employees cannot be sued for their official acts. Sovereign immunity exists to protect these individuals and to allow them to do their jobs without fear of litigation. Without sovereign immunity, a judge, police officer or other officer of the government or court might be afraid to act out of fear of legal repercussions.
The term sovereign immunity originated in the beginning of the English common law system, and means that the ruler or sovereign government of the country under its rule cannot be persecuted or sued under civil or judicial law. The term was created to describe the English law or “crown immunity” and reinforce the adage that “The king can do no wrong”. This form of immunity doesn't exist to quite the same extent in today's governments as it did under English law, though there are still remnants of sovereign immunity stating that different governmental entities are immune from certain legal actions.
Sovereign immunity exists at both the federal and state level in the U.S. The 11th Amendment protects sovereign immunity, for example, and indicates that states may not be sued in a federal court unless they have consented to being sued. The federal government and government representatives also generally may not be sued under sovereign immunity, unless they too consent. Surprisingly, various forms of consent do exist. Laws such as the Federal Tort Claims Act allow for the suit of a federal employee that has caused harm, and the federal government or government officials may also be sued for breaching a contract under the Tucker Act.
If you have been involved in a dispute with a government official and you would like to sue, you should consult with an attorney as soon as possible to determine if your claim falls within an exception to sovereign immunity.
8. What are "rules of civil procedure"?
Jurisdiction:
The jurisdiction of a case determines where the case can or must be heard. In order for a case to appear in federal court, it must either be involving parties from two different states or countries .
Another way that a case can be heard in federal court is if the case is regarding a federal law. Examples of federal laws include EPA guidelines, civil rights cases, and gun law restrictions. As a general rule, any case not heard in federal court is by default a state issue and can be heard in any state court where at least one party to the case is a resident.
Filing Rules and Procedure:
Civil procedure further governs the particulars of how a case is filed including how the documents must read and be organized. For instance, a complaint must specifically list the parties to the case, jurisdictional reasons, as well as the legal claims. Additionally, there are rules regarding the way the complaint is served and how long the other party has to file their answer with the court. The rules also give guidance as to when motions can be filed by the parties in the case to end the case in the filing stage.
Discovery and Pre-trial solutions the rules of civil procedure dictate that after both sides have filed all the complaints, answers, and responses, they can then proceed to request permission for discovery. In this stage, parties are given the court’s permission to search through the property of the other party in an attempt to find valuable information regarding their case. The rules of civil procedure even go so far as to make it illegal for either party to destroy evidence beginning as soon as the complaint is filed. During discovery, the parties will also meet with a judge who may order mediation or arbitration to attempt an early solution to the matter at issue.
Trial:
The rules of civil procedure naturally govern the trial including jury selection, pretrial motions, and the actual trial. Under the rules of civil procedure, parties can choose between a jury or bench trial. Bench trials save time and money and typically guarantee a more accurate decision. Parties are then permitted to select jurors. When selecting jurors, the rules of civil procedure limit the amount of jurors that the attorneys can dismiss, so that the jury is less likely to be stacked. Finally, the rules of civil procedure work alongside the rules of evidence during the trial to ensure that both parties in the case act with the utmost dignity and decorum.
Appeals:
Once a trial is complete, the rules of civil procedure outline the appeals process. The rules of civil procedure dictate that cases may only be appealed by an injured party and there must be specific evidence of errors on the part of the judge in order for the appeal to even be considered. The rules also dictate the specific time frame where an appeal can be filed and how long the appeals court has to read the appeal and respond to the parties.