| 1. What Is Litigation? |
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Litigation is the legal process
by which people, companies and other entities resolve their
disputes and recover damages for losses and injuries. |
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| 2.
Does Litigation Mean You Have To Go To Court? |
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Not always. The final step in
litigation, in many cases, is a court trial and the parties
do have to be present. However, the process of litigation usually
begins with the filing of a complaint. That document is filed
with the court, but the plaintiff does not have to appear until
further proceedings in the litigation require his or her attendance.
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| 3. Who Are The Plaintiffs And
Defendants? |
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The plaintiff is the person or
entity seeking a determination of their rights according to
the laws that govern the subject matter in which they are involved.
The defendant is the person or entity against whom a claim has
been made. In litigation there can be several plaintiffs and
several defendants. These plaintiffs and defendants are called
"parties." |
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| 4. Which Laws Apply To My Case?
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Which
laws apply to a given matter is determined by many factors.
Those factors include, but are not limited to, location of the
parties, location of the real estate, location of the subject
matter, and the nature of the matter. Federal laws apply exclusively
to some areas of the law, such as bankruptcy. State laws often
apply to people and matters within a particular state. Each
state in the union has different laws. |
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| 5. What Laws Apply In Alabama?
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Both federal and state laws are
applied within the State of Alabama. There are special federal
courts to handle federal law and state courts apply state laws.
Federal Court is for disputes where ALL parties are from different
states and the matter in controvery exceeds $75,000.00 in damages
or when a federal question is presented. |
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| 6. What Is The Difference Between
District Court And Circuit? |
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District and Circuit Courts are
the two primary courts for application of Alabama Law. In civil
matters, the amount of money involved in the matter may determine
which court the matter is heard. A complaint for less than $10,000
is generally heard in District Court. Matters in excess of $10,000
are generally heard in Circuit Court. |
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| 7. What is a Complaint? |
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A complaint is the document that
often starts the litigation process. The complaint sets forth
the names of the plaintiffs and defendants. It states what is
the basis for the claims (Causes of Action), what evidence exists
to support the claim and what the plaintiff is requesting in
the form of action to be taken by the Court. |
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| 8. What Is A Cross-Complaint
or Counter Claim? |
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Generally there are two sides
to every story. The defendant in a matter may believe a different
set of circumstances exist from those stated by the plaintiff.
In such a case, the defendant may have a claim of his own which
he can bring against the plaintiff or other third parties which
may somehow be involved and responsible for the defendant's
situation. The defendant prepares a cross-complaint which is
similar to a complaint. It sets forth the reasons the defendant
thinks he will prevail in Court. |
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| 9. What Is An Answer? |
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An answer is the document that
the defendant files with the court responding to the allegations
of the plaintiff. The defendant can admit some of the plaintiff's
allegations, deny others, and add responses of his own. Those
responses are called "affirmative defenses." |
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| 10. What Happens If I Don't
Answer The Complaint? |
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The defendant normally has 30
(14 days in District Court) days from the day he is served with
a complaint in which to respond or answer. If the defendant
fails to timely file his answer, the plaintiff may ask the court
to grant a default judgment. If the defendant does not object,
the plaintiff can go to court without the defendant, prove his
case to the court and obtain a judgment including monetary damages
against the defendant. That means the plaintiff may be able
to recover the amount of the judgment from the defendant without
the defendant ever having been in court. |
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| 11. What Happens After An Answer
Is Filed? |
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After an answer has been filed,
the parties, or their lawyers, begin the process of evaluating
each other's claims, their defenses and the evidence available
to prove or disprove their claims. This is called discovery.
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| 12. What Is Discovery? |
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Discovery is the term used to
describe the process of evaluating evidence to prove or disprove
the plaintiff's or the defendant's case. There are several ways
to conduct discovery. The most common are interrogatories, requests
for production of documents, requests for admissions, and depositions.
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| 13. What are Interrogatories?
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Interrogatories are a set of
written questions that are presented by one party to the lawsuit
to another party. The party receiving the interrogatories has
30 days in which to answer the questions. The responding party
may answer the questions or object to the questions or qualify
their response to the questions. Those answers may be used at
the trial to prove or disprove a party's case. In Alabama, parties
are limited to 40 questions, including subparts, unless the
court specifically approves otherwise. |
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| 14. What Is A Request For Production
Of Documents? |
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Litigation often involves written
agreements and contracts between people such as purchase orders,
leases, insurance policies, etc. In order to evaluate a party's
claim it is often necessary to review the written documents
which may support that claim. Any party to a lawsuit may request
that any other party provide them with copies of any and all
documents in their control, which in some way may relate to
their claim. Parties, or their attorneys, may use those documents
to support their client's claim or discredit someone else's
claim. |
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| 15. What Is A Deposition? |
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A deposition is a meeting generally
held in a lawyer's office which allows one party, or their attorney,
to ask questions of another party to the case about their knowledge
concerning the facts, events, and people involved in or related
to the case. A court reporter is usually present to administer
the oath and transcribe every word spoken in the deposition,
including what the attorneys say. |
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| 16. What Is Arbitration? |
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Arbitration is a less formal
court proceeding which is not held in Court. The parties offer
evidence much as they would in a trial, but the outcome is decided
by the arbitrator or arbitrators (usually there is a panel of
3 in more complicated cases). An arbitration can be binding
or nonbinding. The arbitration is conducted by an arbitrator
who is generally a lawyer or retired judge. If the arbitration
is binding the judgment is usually final. If it is nonbinding,
the parties may agree the arbitrator(s) ruling or ask to return
to the litigation process. Many companies are including arbitration
provisions in their contracts and the State and Federal Courts
have been upholding those provisions in many settings including
employment disputes. Please note that arbitration is much different
than mediation (see below). |
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| 17. What Is Mediation? |
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Mediation is a voluntary effort
between the parties to a lawsuit to settle their claims and
avoid having to continue litigation. It is an informal meeting
in a mediator's office (typically a lawyer or retired judge).
Because it is voluntary the mediator tries to help both parties
understand the other side and to honestly evaluate the strengths
and weaknesses of both sides in an effort to reconcile their
differences. |
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| 18. If I Am Sued Or Want To
Sue Someone Do I Have To Have A Lawyer? |
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Not necessarily. The law allows
individuals to have an attorney or, in many cases, to represent
themselves (in pro se). Some parties in a lawsuit, such as corporations,
are required to have legal representation. Litigation is a complex
process. People can sometimes unknowingly harm their case if
they are not able to understand the law or properly represent
themselves. It is best to talk with a lawyer prior to getting
involved in litigation. For more information on choosing
an attorney, see our list of questions in the Resources
section. |
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| 19. Conclusion |
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Litigation, the laws of the state
and federal government and their separate court systems can
be complex and confusing. Nevertheless the American legal system
is the best in the world. It protects and defends the rights
of its citizens and institutions. |
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