Managing your attorney: the litigation process.
Okay so you got sued. Maybe it was a slip and fall your property, maybe a dog bite or an auto accident. Whatever happened, even if it’s a crazy lawsuit, you got sued. People can get sued for the right reasons, the wrong reasons or even crazy reasons.
At periodic intervals, look at the online docket, or better yet, go down to court and check on the computer file. Print out anything you don’t understand or didn’t receive from your attorney and take it to your attorney. Get a second opinion if you still have questions. You might not be able to sue for malpractice if you knew your atty was screwing up and you did nothing about it. Do regular file checks, don’t trust your attorney.
1) did you get served, did you get served properly? Go to the court and look for first court date and make sure you or a family member over 14 residing in your house was properly served. If not, check about objecting to jurisdiction. If they served the cleaning lady, a nurse, someone not residing with you, first step is your attorney objecting to jurisdiction.
2) jurisdiction by posting. If the sheriff has attempted 2 or 3 times, the plaintiff can get an order for posting. By posting, there can be no money judgment, but there can be an order for eviction or against property.
3) if you were served, make sure your attorney filed an appearance promptly.
4) at the time the answer is due, your attorney should file a “motion to dismiss”. Failure to do so, is often malpractice. Check it out. Ask him/er why this was or was not done. Once the motion to dismiss is denied, the court will require your attorney to file a written answer to your complaint. Make sure they do it on time and you review it before it is filed. At that time, the court will set a “case management schedule” or “trial schedule”. Make sure your attorney gets every task done on time. Judges hate it when you miss deadlines. Miss enough deadlines and you might get sanctioned. Plaintiffs can have their suits tossed out (DWP’d or Dismissed without Prejudice) for missing multiple deadlines.
5) Next step is sending out written discovery to all crucial witnesses. As soon as the motion to dismiss is decided (may take 2 to 6 months or more), and you did not get a dismissal, it’s time to start discovery. Your attorney should serve written discovery consisting of interrogatories, requests for documents and requests to admit. Failure to serve any or all of these before discovery ends, may be malpractice. Give your attorney a list of crucial witnesses and documents and demand s/he serve discovery. Once written discovery is over, the attorney should depose all crucial witnesses.
6) If you think the plaintiff does not have a case after discovery is over, instruct your attorney to file a Judgment on Pleadings (this is where you take all the pleadings filed in the case and attach it to a motion explaining why you feel plaintiff still does not have a case). If that is denied, you can file a Summary Judgment Motion. If the Plaintiff has a weak case, it may be malpractice to fail to file one or both of these. Again after the MSJ or JOP is filed, it may take the court 2 to 6 months to render a decisions.
7) After fact witness discovery closes, the attorneys will tell the court if they will have expert witnesses. If you will be having experts, this part of the case will proceed very quickly right to trial, so get ready and have your witnesses in mind for the close of fact discovery. You will then declare your witnesses and provide discovery and a written expert report to the court. If their witness for whatever reason, seems weak and not helpful (e.g. a Realtor testifying to building construction, an engineer testifying to patent infringement, which is a legal opinion), your attorney should move to strike their BS witnesses. Make sure they file a motion right away.
Next, the experts will be deposed for trial. Make sure your attorney deposes their experts before trial and you check out their expert reports.
8) Trial. Look closely at the trial schedule. Your attorney generally has a ton of work to do for trial, making an exhibit list, a witness list, having exhibit binders (this can be done electronically, if the judge allows), preparing a trial brief where your attorney explains the facts of the case and any relevant case law.
Your attorney should give you a copy of the trial binder so you know what will happen at trial.
You will also get to make “opening statements” and your attorney should get these to you in advance.
At the close of the plaintiff’s case, your attorney can ask for a “directed verdict” meaning plaintiff didn’t show enough evidence to even get his/her case to the jury and no reasonable juror could find for plaintiff.
At the close of defendant’s case, the jury will come back with a verdict. Your attorney can then make a Motion for Judgment as a Matter of Law, meaning no reasonable jury could have come to that conclusion.
You have the right to review and sign off on all pleadings prior to filing.
You have the right to request your attorney correct pleadings that are done wrong.
You have the right to fire your attorney at any time by just calling and/or emailing or texting your attorney instructions to file a Notice to Withdraw. In Illinois most judges will give you 21 days to get a new attorney.
Your attorney should not make any agreements with the otherside without informing you first. Many clients put this in their retainer agreement that any settlements of their case or substantive issues in their case must be in writing and signed by you.
Criminal trials: You have the right to a speedy trial (160 days in general if not in jail or prison, 120 days if incarcerated), you have the right to the attorney of your choice or no attorney. You have the right to fire your attorney. You have the right to see your entire file, whether it is in the clerk’s office, the state’s attorney’s office or with your attorney. However, an attorney can withhold your file if you bill has not been paid. Insist that your attorney scan in all documents and share them with you on gdrive so you have them all. Put it in the retainer agreement.
Attorneys are supposed to give clients of all documents they receive or send out on the client’s case within a few days. Insist on that. Put it in your retainer agreement. Insist all documents are kept on gdrive and shared with you.