Filing a Lawsuit – Your Obligations
Lawsuits are filed in either the district court or the circuit court. Both courts have filing deadlines but the circuit court especially has a management information system which generates deadlines that must be followed. If those deadlines are not met, the court may impose sanctions. These sanctions may include fines and penalties to both the attorney and the client and, in extreme cases, loss of the case through a dismissal. The party bringing the lawsuit is called the “plaintiff” and the other party is called the “defendant”.
Initially, after the complaint (the legal paper filed with the court presenting the facts and remedies sought by the party who brings the lawsuit) has been filed with the court and the defendant has filed an answer and/or a counter complaint, a scheduling conference is scheduled and held. As part of the scheduling conference, agreed dates are set which become part of a scheduling order. This scheduling order will include the following deadlines and dates: discovery deadline; deadline for designation of experts; a hearing date for a temporary order if it is needed; a date when mediation should be started and completed; deadline for the filing of a joint list of the issues in the case including any offers of settlement by either party including counteroffers and a list of witnesses; and a date for a settlement conference. The case may be settled, in part or in whole, at the settlement conference. If the case is not settled at the settlement conference, the parties then go to the clerk's office and select a trial date which often occurs within 30 days of the settlement conference.
One of the most important requirements in the scheduling order is the discovery deadline. Each side has the right to know of facts, witnesses, and exhibits of the opposing side so that each side may be prepared for trial.
Many clients have difficulty accepting the requirement to release information in writing and under oath. Some clients have expressed that if they knew how much of their private and personal information was required to be released, they may have settled the case and not have filed suit. Typically, before filing suit, lawyers inform their clients of the litigation process and especially that facts about personal information will be required to be presented to the opposing party.
In personal injury cases, one type of sensitive information required to be disclosed and about which clients often complain is the client’s prior medical history -- that is medical history before the injuries suffered in the lawsuit. The way in which a defendant requests personal and rather sensitive information, including the prior medical history, is through written interrogatories (written questions); through depositions of the client and witnesses and sometimes, medical providers (interviews conducted before a court stenographer); written requests for documents; written requests for genuineness of documents (documents are provided and the request is made to the opposing party to respond as to whether or not the documents are accepted as genuine); by subpoenaing records, which in addition to medical records can also include employment records of current and prior employers and payroll records; and the taking of recorded statements. Even though insurance information is not presented at trial, it is usually requested by the opposing party and the response may include records of insurance companies including health insurance, personal injury protection, auto insurance policy, umbrella insurance policy as well as photographs of the scene where the injury occurred and any evidence that will be presented at trial.
One of the important rules concerning the entitlement of the person who requests the discovery deals with the circumstance of the opposing party making a request that the other party says is not relevant. The Rules state in a liberal way that if the request may lead to discoverable evidence, then the requested information should be provided. Judges tend to uphold discovery requests for several reasons but the primary reasons are that any party, in bringing a lawsuit, should realize that his/her life is going to be somewhat of an “open book” and also because it is very difficult to determine at an early stage of the case what will be relevant evidence and what will be a fishing expedition.
Examples of discovery in family law cases involving divorce include discovery of facts related to child custody, marital property, pension programs, IRAs, 401Ks, deferred compensation, pay stubs, income tax records, assets owned before the marriage, assets owned jointly with others than the opposing party, list of gifts made to others than the opposing spouse, proceeds from the sale of property, negligence claims, current worker’s compensation benefits, Social Security benefits, wills and/or trusts. Also discoverable are benefits from employers that may be considered personal expenses and free rent where the parties have separated and the opposing party lives with relatives and is not charged rent. Courts have the discretion to consider free rent based on its fair market value as additional income to the party who receives free rent. The above is not a complete list of discovery requests. The discovery requests will be based on the facts and circumstances of each case.
Sanctions: If either or both parties fail to meet the discovery deadlines and the Court orders the discovery to be provided (compels the discovery to be provided) and it is not provided, the Court may impose a financial penalty on the party who did not obey the court order. Sanctions can be imposed also if the Scheduling Order deadlines are not met. Each party must understand that these deadlines and scheduling orders must be followed. Courts generally will not postpone or expand scheduling deadlines unless there are unusual and justifiable reasons to extend a deadline. Even after the parties jointly propose an extension of the date, the Court has the discretion to deny the joint request for extending a deadline date.
Cooperation between attorney and client is extremely important. The client's cooperation will go a long way to ensuring that the deadlines are met and sanctions are not imposed and may have the added benefit of reducing legal fees as well.
Even though clients are often reluctant to provide personal information, once the attorney has explained the rules of court, clients should accept the lawyer’s advice.
Fred Antenberg has over 30 years’ experience filing and defending lawsuits and dealing with scheduling deadlines in both the district and circuit courts of Howard County and surrounding counties in Maryland. Call Fred today at 410-730-4404 for a free initial consultation.