Whether you have just been sued or you are the one suing another, litigation can be very stressful and confusing. Our office strives to keep our clients informed and involved in their case, and that includes making sure that they have understanding of the legal process and all of the various players, and elements that go into litigating a civil case. Whether you were just recently sued, are deciding whether or not to file a lawsuit against someone who has wronged you, or you have been confused about the progress of your pending case, we hope that this brief overview can provide you some insight into litigating a case in Florida.   

THE PLAYERS:

1. The Plaintiff: The Plaintiff is the party that initiates the lawsuit, and can be a person or a legal entity, such as a corporation or other type of business. A plaintiff may sometimes bring a case on behalf of another party, for example, In Florida a minor cannot initiate a lawsuit as a Plaintiff, he or she would need a parent or guardian to initiate the lawsuit as the Plaintiff on their behalf.  The Plaintiff is the party that has the burden of proving their case. In a civil case, the plaintiff must prove that his or her allegations are true based on a preponderance of the evidence standard, which basically means that the claims must be proven to be more likely true than not true. Depending on the nature of the claim, if the Plaintiff prevails, he or she may be entitled to monetary compensations, known as damages. An experienced civil attorney can explain what specific kinds of damages are available in civil cases. For a quick overview of civil damages check out our article entitled “How the Legal System Can Help You”, by clicking HERE.

• The Defendant: The Defendant is the party who has been sued; the defendant can also be a person or a business. It is the Defendants job to counter the allegations being made against him or her by the Plaintiff. This can be done in two ways. First, the Defendant can simply deny the claims made against him or her and focus his or her case on undermining the allegations of the Plaintiff. Second, the Defendant can also put forth special defenses known as affirmative defenses. Affirmative defenses are intended not to deny the allegations made against the defendant but to avoid legal consequences for those actions. For example, Self-defense is an affirmative defense to civil battery. This affirmative defense does not deny that a physical altercation took place, but instead seeks to avoid blame for it under the law. There are many different defenses, affirmative defenses and defense tactics available to a defendant, a knowledgeable attorney can work with you to determine the best defenses to your legal case. For more information about the legal process for a Defendant, see our previous post entitled, “What to Do If You Are Sued” by clicking HERE.

THE PROCESS:

1. Pre-litigation: Certain types of cases, including medical malpractice actions, some insurance disputes and others, require certain steps be taken before filing of a lawsuit. These requirements are set forth by law and must be followed or you risk your case being dismissed. The pre-litigations process, if applicable to your case, can be as simple as sending a demand letter. However, in other cases, it can be quite complex and look a lot like the discovery phase of litigation. It is important to make sure that you follow any pre-litigation requirements; an experienced civil attorney can explain to you any pre-litigation requirements specific your case. 
2. Initiation of the lawsuit: A lawsuit is initiated by the filing of a Complaint or Statement of Claim. In Florida, the distinction between whether a Complaint is filed or a Statement of Claim is filed is dependent upon the court in which the case is filed. Cases must be filed in the appropriate court, the court that has legal jurisdiction over both the subject matter of the claim, the person being sued and the amount of money, if any, being sought. Once the claim is filed then the Defendant must be served. Service refers to giving legal notice of the initiation of a claim to the Defendant. Service of Process must be done properly in order for the Defendant to be legally joined to the case. Chapter 48 of the Florida Statutes governs legal service of process, and must be followed precisely. 

• Pleading stage: The pleading stage of litigation refers to the time after the Complaint is filed until the Defendant files and Answer to the Complaint. The pleadings, the Complaint (or Statement of Claim) and the Answer, form the basis of the case and should detail each party’s claims and defenses. 

1. Discovery stage: Discovery is the process by which both parties gather information about the case. During discovery each side may request that the other side produce relevant documents, or permit the physical inspection of a location or piece of physical evidence. During discovery, the parties may also request that the opposing side answer written questions, and admit certain facts. The parties may also take depositions. Depositions are in-depth interviews about the case taken under oath. Discovery is essentially a formalized information exchange between the parties, it can be the most important phase of litigation, as it sets the stage for the rest of the proceedings. It is also usually is the longest phase of litigation. 

• Post- discovery: After discovery is completed the parties will usually file and have hearings on a variety of motions intended to set the case up for trial. Some examples of motions presented and heard in this phase are: (1) motions for summary judgment, which ask the court to rule on the legal merit of any claim or defense, and (2) motions in limine, which ask the court to decide whether certain information is appropriate or not for use at trial, based on the rules of evidence. This phase of litigation is crucial and high stakes; it can fundamentally alter a party’s chance of resolving the case in their favor.  

1. Resolution: Cases can be resolved in various manners, such as:
   1. Settlement: A settlement is simply an agreement between the parties to resolve the case. A settlement can be entered into at any time. Be aware that a settlement is essentially a legally binding contract, whether in writing or not, and each party is legally bound to abide by the terms of the settlement. 

• Alternative dispute resolution: The parties can also resolve a case by and through alternative dispute resolution, such as mediation or arbitration. Alternative dispute resolution is essentially a non-judicial process that facilitates a settlement between he parties. 

• Trial: Trial is the culmination of the judicial process. Even though all cases filed in our court system are on the path to trial, the great majority of all cases will be resolved outside of trial. Trial is the formal presentation of facts and evidence before a judge or jury, which is strictly governed by the rules of evidence as set forth in Chapter 90 of the Florida Statutes. 

• Timeline: Most clients are surprised to learn that litigation may take years to complete. This is part of the reason that most cases settle before reaching trial. The Supreme Court of Florida has recently issued administrative orders intended to force local court systems to push cases through the court system at a faster rate, however, due to the backlog in the Court system (especially in Miami-Dade County) and the delays caused by the pandemic, litigation is still a very lengthy process. 

At the Law Office of Robert N. Pelier, P.A. we take pride in helping our clients successfully navigate the complex world of civil litigation. We have experience in civil cases of all kinds, including breach of contract, medical malpractice, insurance disputes, business disputes, personal injury, crime victim advocacy and much more. Our experience helping and advocating for our clients in South Florida can help you.