Anatomy of a Lawsuit
A lawsuit is formally commenced by service (or filing) of a summons and complaint. But before a lawsuit formally begins, a lawyer typically engages in fact gathering and research to make sure that the lawsuit is on a sound footing. Commonly, a lawyer contacts the adverse party, or its insurance company, to discuss the claim. By contacting the opposing party, the lawyer serves two purposes. First, the lawyer enhances the possibility of settlement before expenditure of substantial fees and costs. Second, the lawyer learns much about the strengths and weaknesses of the case by listening to the opposing party’s side of the dispute. Sometimes a lawyer urges a client to discontinue a case, based upon information received from the opponent. Sometimes a lawyer obtains valuable new information strengthening the case. In major cases, at the request of the client, the lawyer may draft a pre-litigation advice memorandum discussing the prospects of success.
We must make every effort to pursue evidence, such as photos of the car, shoes worn in a slip and fall, coffee maker involved in a fire, etc. The Appellate Division affirmed and noted New Jersey does not recognize a separate tort action for intentional spoilation of evidence. New Jersey relies upon various civil remedies when spoilation has occurred. One remedy is an adverse inference charge, another is a discovery sanction, such as precluding the spoilator from using the designated matters in evidence. Another remedy is a separate tort action against the spoilator for intentional or negligent spoilation under traditional negligence principles or an action for fraudulent concealment.
Prospects of Success
In considering whether to bring a lawsuit, a lawyer commonly weighs (a) the potential that the defendant will be found liable at all; (b) the likely damages awarded in the event of a favorable decision; (c) whether the defendant has insurance or personal assets available to pay the verdict. Many otherwise strong cases are turned down because the lawyer believes that the claim will not be covered by insurance. The lawyer will also evaluate whether the defendant may have a claim against the plaintiff. Starting a lawsuit causes the defendant to consider whether he has claims in return. For this reason, the lawyer asks whether the defendant may respond with a claim of his own.
Which Court?
The plaintiffs lawyer will give careful thought about what court should hear the plaintiff’s case. He will want, of course, to choose a court with subject matter jurisdiction, that is power to hear cases of this kind. He will need to sue in a state which can have personal jurisdiction over all necessary defendants, that is the power to subject those persons to a lawsuit. He will consider the appropriate venue, that is, which county court or judicial district should hear the case. The lawyer’s decision regarding choice of court will involve convenience to the plaintiff and lawyer. Plaintiff’s lawyer may consider the particular judges presiding in that court; may consider how fast the particular court system disposes of cases.
Summons & Complaint
A summons and complaint initiates a lawsuit. In the federal courts, a lawsuit is formally commenced with the filing of the summons and complaint in the Court itself. In New Jersey, a lawsuit is formally commenced with service of process on the defendant. In New Jersey, a personal injury plaintiff has 2 years within which to file suit. Contract and property damage claims have 6 years.
Defendant’s Answer
A defendant responds to a summons and complaint with an answer. If the defendant does not answer, the plaintiff will win by default. The defendant must serve an answer in 35 days, although the time to answer may be extended by agreement.
Insurance Defense
When the summons and complaint have been served, the defendant should provide a copy to his insurance company at once. The insurance company will review the allegations of the complaint to determine if any aspect of the complaint may be covered by insurance. Plaintiffs’ attorneys commonly grant the defendant additional time to answer while the insurance company conducts this review. The insurance company will respond by (a) rejecting the tender of defense in writing, stating reasons; (b) accepting a full defense of all claims presented by the complaint; (c) accepting the defense of some or all of the claims under reservation of rights. This latter occurs when the insurance company believes that some claims are covered and some are not covered, or that coverage depends upon disputed facts or facts yet uncovered.
Effect of Reservation of Rights
When a defense is accepted under reservation of rights, a potential conflict exists between the insurance company, which hires the defense lawyer and the defendant. The defense counsel must make strategic decisions regarding the defense of the case which may effect which claims are successful and which are not. A common difficulty arises when the plaintiff offers to settle a case within the policy limits (or on the covered claims), but threatens to seek in excess of the policy limits if the case goes to trial. During the litigation, the defense counsel may need instructions from the insured and from the insurance company, and at times the two may differ. For this reason, the defendant may well be advised to consult with another attorney for advice on issues related to the uncovered claims. Also, at times it may be in the defendant’s interest to commence a declaratory judgment action to establish coverage. If there is a dispute about coverage, it may be preferable to resolve that dispute before completing the main litigation. At other times, it is preferable to delay resolution of the suit.
Insurance policies require prompt notice of claims. If you have an insurance policy which might cover the claim, you should notify your carrier right away; failure to notify may result in denial of coverage.