Setting the Stage for the Schulansky Case

The first five parts of this book have dealt with the “substance” of civil procedure, that is, the various judicial rules and doctrines that govern the litigation process. The chapters that follow are intended to give you a sense of how the process actually works by chronicling the early stages of a typical (though hypothetical) civil case, Schulansky v. Ronan. Each chapter includes the court papers filed at one stage of the Schulansky suit, including typical pleadings, motions, and supporting documents. In addition, the materials provide a look at the legal and tactical questions that the attorneys considered in drafting those documents. This chapter is intended to help you to place the ones that follow in context, by providing a brief description of the process of litigating a civil suit from the beginning up until trial.

PREPARATION FOR FILING SUIT

In most cases, the litigation process begins well before the parties get to court. Obviously, the first step is for the client to bring a dispute to a lawyer. The plaintiff’s lawyer will obtain as much information as possible from the client. On the basis of this information, some investigation, and her assessment of the client, the lawyer must make a judgment as to whether to take the case. If she does agree to take it, she will propose a fee arrangement, and if the client accepts, a contract for services will be signed. In personal injury actions, the agreement will frequently provide for a contingent fee, that is, an attorney’s fee based on a percentage of any eventual recovery, frequently set at one-third of the amount recovered. The expenses of the action, such as filing fees, deposition costs, expert witness fees, and other out-of-pocket expenditures, will also be paid out of the recovery.

Once the plaintiff’s lawyer has agreed to handle the case, she will conduct a preliminary investigation of the events giving rise to the claim. She will obtain as much information as possible from her client and from other witnesses who are willing to discuss the case. She will gather and review documentary evidence, such as accident reports, correspendence, business records, government reports, or other available materials. She will also do preliminary legal research if the case involves novel theories of recovery or other critical issues of law, in order to ascertain whether her client’s injuries give rise to a right to relief.

On the basis of this preliminary development of the case, the plaintiff’s attorney will usually send a claim letter to the defendant or her insurer, or discuss the claim with the defendant’s counsel in order to explore the possibility of settling the claim without bringing suit. Many claims can be settled without the expense of litigation, particularly if there is little question as to liability and the only issue is the extent of the plaintiff’s damages. However, in other cases the settlement value of a claim will depend on facts that have not yet been fully explored at this early stage. In the Schulansky case, for example, the defendant’s judgment of the settlement value of the claim will turn in part on the parties’ testimony as to their negotiations before the construction work began. The plaintiff’s testimony as to those negotiations will only be available to the defendant through court-supervised “discovery” in the course of litigation. In such cases, the parties will be less likely to reach an agreement until suit is brought and the facts are more fully developed.