Attorney: Now that you’ve signed my retainer agreement, let’s start talking in more detail about the lawsuit you want to file against your opponent.
Client: I gave you the general outlines when we first talked on the phone about what my opponent did to me, and what I want to ask for in money damages. Tell me what other information you need.
A: First let me explain how the process of filing a civil lawsuit works. Have you ever been involved in a lawsuit before?
C: Fortunately, no.
A: We start out by preparing a legal document called a “complaint.” It may be called something different in other jurisdictions. The complaint explains how you have been wronged, or damaged, and what relief you are asking for from the court.
C: So we tell my story in the complaint?
A: Exactly. However, we are legally required to tell your story within specific frameworks under the law, which are called “claims.” Sometimes they’re also called “causes of action.” For example, “breach of contract” can be one type of claim in a complaint. Another is “negligence.” The law requires us to plead your grievances against your opponent within those specific formats.
C: Will you be the one to write up those claims in the complaint?
A: Yes, I will draft them to conform to the legal requirements. First, we need to decide which ones to plead. Second, there are certain statements, called “prime facie allegations,” that we need to put in each claim, at minimum. Finally, we need to include enough specific facts and details to support your claims.
C: Why do we need to do that?
A: Because the purpose of the complaint is to fully notify your opponent in writing of the nature of your claims against him, so he can respond in court.
C: What happens if we don’t?
A: If we don’t, then when your opponent does respond in court, he can ask the court to dismiss your complaint for defective pleading without even looking at the merits of your case. We could get thrown out of court. It would be like writing a test, but the teacher deciding not to even grade it because you didn’t answer the questions in the proper format. You get a zero.
C: Tell me more about what we need to do to avoid being thrown out of court.
A: First, once you give me all the details about your dealings with your opponent, I will be able to determine which claims are viable against him, and which are not, from a legal standpoint. I will then be able to draft the allegations in the complaint to act like a “roadmap” for your case.
C: Do we have to give my opponent all that information in the complaint? Can’t we hold something back and surprise him later at trial?
A: No, the law of pleading does not allow surprising your opponent that way. If we don’t plead all of your available claims in the beginning, we may not be allowed to proceed to trial later on any claims that we omitted.
C: As you are drafting the claims in the complaint, what else will you be doing?
A: I’ll be thinking about if, and how, we will be able to prove each claim at trial. You not only have to plead, but also prove, each claim in the complaint. Otherwise you get thrown out of court. You have the burden of proof as the plaintiff. We have to both plead and prove
C: It sounds like you have to do some advance planning in preparing the complaint.
A: Correct. You have a straightforward, non-complex case. There are several ways that I try to think ahead on how we are going to prove our case at trial as I’m preparing the complaint.
C: What are they?
A: First, I need to get an idea from you in the beginning of who our witnesses will be at trial, besides yourself, and how strong each of them will be as a witness. Without some good favorable witnesses, we won’t get very far.
C: I have several witnesses who are willing to help. What next?
A: I’ll need to review any documents you have that we can use as evidence to prove your case. Sometimes documents are better than oral witnesses, because juries know that witness can lie, but documents generally don’t lie.
C: I have lots of helpful documents in my files that I’ll bring into your office for you to review as you prepare the complaint. What else?
A: I will do some legal research into the claims that we plead. It’s not that I haven’t prepared complaints such as yours before. It’s just that some quick legal research will tell me if there have been any recent changes in the law in those areas.
C: What do you look for?
A: Any new court case precedents that have either expanded, or restricted, certain claims that we might bring. That occasionally happens.
C: Since I’m cost-conscious about this lawsuit, at what point do you know that you have enough information to draft the complaint?
A: From a legal standpoint, we have to be able to establish two things at trial in order to win: liability and damages. That means we have to be able to prove both that your opponent in fact wronged you, and exactly what your damages were, in dollar terms. I need to make sure we can do both.
C: It isn’t enough just to show that my opponent has some liability to me for what he did?
A: No. Most clients don’t realize that proving damages is just as crucial to winning their lawsuit as proving liability. You’ve heard the term “no harm, no foul?” That means that even if someone wrongs you, if you can’t show that you actually suffered any damages, you legally can’t win your case. You need both halves to prevail.
C: How long do you think the complaint will end up being?
A: Since we will probably have several claims to plead, I’m estimating 10 - 20 total pages.
C: Will I get to see it before it’s filed with the court?
A: Yes, I’ll want you to review the draft complaint carefully to make sure I’ve gotten all the facts and details correct.
C: Let’s talk about the cost of all this. Can you give me a breakdown?
A: I can only give you a high/low estimate of the legal fees at this point. I won’t know how many documents or other evidence you will have for me to review until you bring them into the office, which will affect the amount of time I spend.
C: A rough estimate is fine for now.
A: I estimate that I’ll spend about 4 - 8 hours reviewing your documents and other evidence, plus a total of about 4 hours meeting or talking with you by phone to get the necessary facts and details. I’ll probably need to do about 2 hours of legal research, then about 10 - 15 hours drafting the complaint. That will include any revisions and edits to get it ready for filing. That adds up to roughly 20 - 30 hours at my $250 per hour rate.
C: So the overall estimate is $5,000 - $7,500 in legal fees to file the lawsuit?
A: Yes, roughly, but I won’t know for sure until I get into all of your documents and evidence. If it turns out that my estimate is too low, I’ll let you know in advance and we can discuss it.
C: Anything else besides your fees?
A: Yes, there will be a standard court filing fee of a couple hundred dollars.
C: Once the complaint is on file with the court, what happens then?
A: We’ll have to personally serve it on your opponent, which means we’ll have to pay a modest amount for a process server to handle the “service of process.” Once that’s done, your opponent will have about 20 - 30 days to respond to the complaint, either by answering your allegations, or asking the court to dismiss the complaint.
[TO BE CONTINUED]
© 2008 Ken Moscaret. All rights reserved.