Nolo’s Encyclopedia of Everyday Law Phần 9 doc

N o l o ’ s E n c y c l o p e d i a o f E v e r y d a y L a w

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I’m trying to decide whether to

sue someone—for example, a

contractor who goofed up my

expensive remodeling project.

What are my first steps?

You need to be able to answer yes to

three fundamental questions in order

to decide whether it’s worthwhile to

go forward:

• Do I have a good legal case?

• Can I prove my case?

• Can I collect when I win?

If the answer to any of these ques￾tions is no, you probably won’t want

to sue.

How hard is it to collect a court

judgment?

That depends on your opponent. Most

reputable businesses and individuals

will pay you what they owe. But if

your opponent tries to stiff you, col￾lecting what you are owed can be a

costly time-consuming struggle. Un￾fortunately, the court won’t collect

your money for you or even provide

much help; it will be up to you to

identify the assets you can grab.

Normally, if an individual is work￾ing or owns valuable property—such

as land or investments—collection is

less difficult; you can instruct your

local law enforcement agency (usually

the sheriff, marshal or constable) to

garnish her wages or attach her non￾exempt property. The same is true of

a successful business, especially one

which receives cash directly from cus￾tomers; you can authorize your local

sheriff or marshal to collect your

judgment right out of the cash regis￾ter. And in many states, if you are su￾ing a contractor or other business per￾son with a state license, you can apply

to have the license suspended until

the judgment is paid.

But if you can’t identify any collec￾tion source—for example, you’re deal￾ing with an unlicensed contractor of

highly doubtful solvency—think

twice before suing. A judgment will

be of no value to you if the business or

individual is insolvent, goes bankrupt

or disappears.

How do I decide if I have a

good case?

Lawyers break each type of lawsuit

(“cause of action,” in attorney-speak)

into a short list of required elements.

As long as you know what the ele￾ments are for your type of lawsuit, it’s

usually fairly easy to determine

whether your case is legally sound.

For example, a lawsuit against a con￾tractor for doing substandard con￾struction would be for breach of con￾tract (the contractor agreed either

orally or in writing to do the job

properly). The legal elements for this

type of lawsuit are:

Contract formation. You must show

that you have a legally binding con￾tract with the other party. If you have

a written agreement, this element is

especially easy to prove. Without a

written contract, you will have to

show that you had an enforceable oral

(spoken) contract, or that an enforce￾able contract can be implied from the

circumstances of your situation.

Performance. You must prove that

you did what was required of you

under the terms of the contract. As-

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suming you have made agreed-upon

payments and otherwise met the

terms of the agreement, you’ll have no

problems with this element.

Breach. You must show that the

party you plan to sue failed to meet

her contractual obligations. This is

usually the heart of the case—you’ll

normally need to prove that the con￾tractor failed to do agreed-upon work

or did work of poor quality.

Damages. You must show that you

suffered an economic loss as a result of

the other party’s breach of contract.

Assuming the work must be redone or

finished, this element is also easy to

prove.

The legal elements for other types

of lawsuits are different. You can find

outlines for most in Represent Yourself

in Court, by Attorneys Paul Bergman

and Sara J. Berman-Barrett (Nolo).

Is it difficult to prepare the

paperwork to initiate a lawsuit?

Actually, it’s often fairly easy—espe￾cially if you learn how to do the nec￾essary legal research and prepare drafts

of the papers, restricting your lawyer’s

role to that of checking your work.

Initiating a lawsuit is especially

straightforward in states such as Cali￾fornia and Michigan, where court

clerks provide preprinted fill-in-the￾blanks forms for many types of law￾suits. But even in states where law￾suits are filed the old-fashioned way,

using paragraphs of appropriate legal

jargon on numbered legal paper, the

actual wording you’ll need is almost

always available word for word from

lawyer “forms books” or CD-ROMs.

And increasingly states themselves are

making forms available free on their

own websites. (See “Court Information

Online,” above.) These information

sources, which are routinely used by

lawyers, are available at most larger

law libraries and are usually fairly easy

for the nonlawyer to understand.

I’ve filed my lawsuit. What do I

need to do next?

Before a case gets scheduled for trial, a

number of things need to happen,

including meetings with your oppo￾nent and paperwork designed to re￾duce or narrow disputed issues. Court

rules that cover many of these—for

example, whether and when a settle￾ment conference must take place,

when papers must be filed and how to

place a case on the court’s trial calen￾dar—should be available from the

court clerk and, increasingly, on the

Web (see Court Information Online,

above). Unfortunately, many clerks

are not willing to provide help be￾yond handing out a copy of often con￾fusing written rules. To get a plain

English overview of the pretrial pro￾cess, see Nolo’s Represent Yourself in

Court, by Attorneys Paul Bergman &

Sara J. Berman-Barrett.

In addition to procedural

maneuverings, most larger lawsuits

involve a search for information about

the facts of the case, called “discov￾ery.” This process is left largely up to

you and the other parties to the law￾suit. For example, one type of discov￾ery consists of your taking the deposi￾tion (oral statement) of the other

party or one or more witnesses to find

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out what he or she is likely to say at

trial. Additional types of discovery

consist of interrogatories (written

questions to the other party), a re￾quest to produce documents or a re￾quest that the other party admit cer￾tain facts (stipulations).

What are the advantages and

disadvantages of taking a

deposition?

Depositions, which normally consist

of face-to-face questioning of the

other party or a witness before trial,

have several big advantages as com￾pared to the other types of discovery

mentioned above:

• You can learn a great deal about

your adversary’s case, so as to avoid

surprise in the courtroom.

• You can offer a deposition transcript

into evidence at trial if the deponent

(the person questioned) is unavail￾able to give live testimony. This

rule explains why you might

consider deposing a helpful witness

who may not be available to testify

at the time of trial.

• If an adversary’s witness whose

deposition you have taken testifies

significantly differently at trial than

at the deposition, you can read the

inconsistent deposition testimony

into the trial record to impeach

(attack) the deponent’s credibility.

EXAMPLE

You have sued your former employer for

violating state law by firing you for miss￾ing work because you served on a jury in a

lengthy trial. Before trial you take the

deposition of your former supervisor, Paul

Chepick. At the deposition, Chepick testi￾fied that your work performance had been

satisfactory before you took off for jury

duty. At trial, Chepick testifies that you

were fired not because of your jury service,

but because of a number of work-related

problems. Because Chepick’s deposition tes￾timony contradicts his trial testimony, you

could read the deposition testimony into the

record at trial to call his believability into

question.

• As compared to conducting discov￾ery by asking written questions

(interrogatories), depositions allow

for more flexibility in questioning

because you hear a deponent’s

answer before you ask the next

question. For example, assume that

a deponent unexpectedly refers to an

important business meeting that

you had no idea had taken place. In

a deposition, you can immediately

follow up the remark with questions

about what took place during this

meeting.

• You can take anyone’s deposition.

You can depose your adversary, an

employee who works for your

adversary, a bystander who wit￾nessed a key event, an expert

witness hired by your opponent—or

even your opponent’s attorney! By

contrast, you can send written

questions (interrogatories) only to

your opponent, not to witnesses.

• You elicit the testimony of an

individual deponent. While your

adversary’s lawyer will probably

attend the deposition and can

consult with the deponent during

recesses (breaks in the testimony), it

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is the deponent who has to answer

the questions. By contrast, attorneys

often play a major role in preparing

the answers to written interrogato￾ries and usually advise clients how

to answer them in a way that

provides you with as little informa￾tion as possible.

• You can use a deposition to learn

and ask about documents (or other

tangible items) by simply using a

Notice of Deposition (to depose

your opponent) or a subpoena duces

tecum (to depose a nonparty wit￾ness). In either case you can list

items you want the deponent to

bring to the deposition.

Unfortunately, deposing an adver￾sary or a witness who supports your

adversary also has some disadvantages.

Weigh these considerations very care￾fully before you decide to take a depo￾sition:

• Depositions are the most expensive

discovery tool. Even if you are

representing yourself (and therefore

not paying an attorney to take or

attend a deposition), you must pay a

court reporter to transcribe the

testimony and prepare a written

transcript. While costs vary some￾what by locality, it’s not unusual for

a court reporter to charge up to

$5.00 per page of transcript. A day of

deposition testimony fills up about

150 pages, meaning that a day-long

deposition may cost you around

$750. If you win your case, however,

the judge may order your adversary

to pay your deposition costs.

• If you are involved in a lawsuit

against a good-sized business or

governmental entity and haven’t

investigated thoroughly enough to

know which witnesses are most

likely to have important informa￾tion, you may end up paying dearly

to depose a witness whose main

answers are, “I don’t know.” By

contrast, written interrogatories

give you access to “corporate knowl￾edge.” This means that when you

send interrogatories to an adversary

that is a business or other entity,

any employee with knowledge has

to contribute to the answers.

• Effective deposition questioning is a

difficult skill, even for many attor￾neys. You have to pose questions

carefully in order to be confident

that you know how adverse wit￾nesses will testify at trial. If ques￾tions are vague or you forget to

cover a topic, you won’t be prepared

for your opponent’s evidence at trial

or be able to show that a witness has

changed a story and therefore should

not be believed.

• Your adversary’s lawyer can be

present at a deposition. The attorney

may throw you off track by object￾ing to your questions. Also, an

adversary’s attorney can help wit￾nesses “refresh their recollections”

during recesses. Finally, seeing you

in action will allow the attorney to

estimate your own credibility, and

by listening to your questions often

learn as much about your case as you

learn about your adversary’s.

• If you depose an adverse witness

who becomes unavailable for trial,

you enable the adversary to offer the

deposition transcript into evidence

at trial.

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How do I take a deposition?

Start by checking your local court

rules (see Court Information Online,

above). Then read Nolo’s Deposition

Handbook, by Paul Bergman and

Albert Moore, which contains detailed

instructions on how to ask and answer

questions. Pay particular attention to

the time window for taking deposi￾tions and understand exactly how to

notify a person whose deposition you

want to take. Under all rules, you’ll

need to select a date and location for

the deposition, arrange and pay for a

court reporter’s presence (many are

listed in phone books), and give the

deponent and opposing counsel (or

your self-represented adversary) at

least ten days’ written notice. Even

better, as a courtesy, talk to all the

necessary people ahead of time to try

to arrange a mutually convenient date

and location.

If you want to depose a “non-party

witness” (someone other than your

adversary), you’ll probably have to

serve the witness with an official court

form called a “Subpoena re Deposi￾tion.” If you want the non-party wit￾ness to bring documents to the depo￾sition, use instead a form carrying the

fancy title “Subpoena Duces Tecum re

Deposition.” (These forms should be

available from a court clerk.) List the

documents you want the witness to

bring along, and state briefly how

they pertain to the case.

Once the deposition has been

scheduled, follow these tips to learn as

much information as you can:

• Prepare a list of questions before you

take a witness’s deposition. You

need not slavishly follow the list,

but having one to refer to should

prevent you from forgetting impor￾tant topics.

• Bring (or subpoena) copies of any

written statements about the case

that the deponent has previously

given. For example, bring the police

report if the witness gave a state￾ment to a police officer who in￾cluded it in the report, or the

witness’s own declaration (statement

under oath) if one was attached to a

document filed in court. Ask the

deponent to amplify on and fill any

holes in a statement’s contents, then

check to see if the deponent in any

way contradicts a prior statement. If

so, you might ask the witness to

repeat the contradictory statement.

That way, if you impeach (attack

the credibility of) the witness at

trial, the witness cannot easily

wriggle out by saying, “I made a

careless mistake during my deposi￾tion.”

• Bring copies of any other documents

about which you want to question

the witness, regardless of whether

the witness wrote the document or

has any connection to it. For ex￾ample, you may want to know

whether the witness ever saw a

document, the date on which the

witness saw it or whether the

witness is aware of the information

in the document.

• Review and bring along all paper￾work relating to the case organized

chronologically, including the

complaint, answer and any motions

or court rulings. These documents