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ABC’s Of Litigation

Posted on May 22, 2019 in Firm News

A:  Appeals, Answer and Agreement.

Appeal: Almost any outcome in one court can be appealed to the next higher court.  Some decisions of the Justice Court, for example, can be appealed to the District Court, and likewise, a decision of the District Court can be appealed to either the Nevada Court of Appeals or the Nevada Supreme Court. In 2014, the voters of Nevada approved the creation of a court of appeals, and the categories and rules governing which cases will be heard by that court are evolving. Thus,almost no matter what outcome is obtained by one party, an appeal might still be possible the non-prevailing party.  This can cause litigation to dragon for much longer than parties expect when the first initiate their lawsuit.

Answer: After a Plaintiff files a Complaint, the Defendant is required to file a response,which is usually, but not always an Answer. The Answer will contain a response to each and every allegation contained in the Plaintiff’s Complaint.  An alternative to an Answer might be a Motion to Dismiss if the Defendant believes the Plaintiff’s Complaint is not properly drafted.

Agreement: Oftentimes, a contract (agreement) will have a provision in it that sets forth in which state (jurisdiction), and even which city (venue) a case will be tried.  This is sometimes referred to as a “choice of law”provision.

B: Bankruptcy.

Bankruptcy might seem like a strange category to consider when thinking about litigation,but it should actually be a very important part of the analysis undertaken when considering undertaking litigation.  If one’s potential opponent does not have a good deal of assets, it might prove an effective strategy for them to simply file for protection under the Bankruptcy laws, which might very likely result in a plaintiff receiving nothing for the expenses incurred in undertaking litigation.

C:  Complaint,Candor, Collection.

Complaint: As alluded to above, the most typical way a lawsuit is initiated is by one party (the Plaintiff) filing a Complaint with the court.  There are requirements that cover when, and in which court this can be done.  At the most base level, the amount in dispute between the parties will be the primary consideration.  Amounts in controversy in excess of $15,000, for example will mean the Complaint will be filed in the District Court for Nevada. Lesser amounts in controversy will be properly filed in either Small Claims or the Justice Courts.

Candor:  If you choose to have an attorney represent you, he or she has a duty of candor with the court.  This means the attorney cannot lie to the judge, but it does not mean he or she has to simply tell the judge everything, or anything you tell them.  Between an attorney and their client there exists a seal of confidentiality which allows for openness between them, which allows the attorney to assist the client within the law.  An attorney’s candor with the court means that they cannot intentionally lie to the court or hide a fact that would cause the court to make an improper ruling. Oftentimes a judge will hear things that, although harmful to one party, will, nonetheless, not be part of the basis for the court’s ultimate ruling.

Collection:  It is useful to keep in mind that just because one party obtains a judgment against the other, does not always, or necessarily mean that the winning party will be able to collect any money.  As discussed above under “Bankruptcy”,there are ways for a Defendant to no have to pay a judgment.  In addition to filing for bankruptcy, a defendant might simply not have enough assets, or might have lost their job, or be protected by the law against collection. One example of this is if the defendant is receiving a pension that might be protected and/or they have filed a homestead on their home, meaning a prevailing Plaintiff cannot force them to sell the home to collect the judgment. If a Plaintiff can get a garnishment order against the Defendant’spay, the law only allows a small percentage to be collected at one time,meaning it could take years to collect all the money due on a judgment.

Copyright Hans Baldau