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LITIGATION FAQ

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What is a Complaint?

 

A Complaint is a legal document filed with the court that begins the formal litigation process.  It identifies the defendant(s) against whom the personal injury claims are made, and it sets out the allegations of fact, the laws and rights violated, and the damages being pursued. 

 

A defendant’s attorney will file an “Answer” to the Complaint, responding to each allegation and setting out each defense.

What does it mean to file a Complaint in court?

 

Filing a Complaint means that the dispute is being formalized and escalated to the public courts to begin the litigation process.  A judge is assigned to the case, the defendant likely receives representation from a defense attorney, and your case becomes subject to the civil procedures of the court. 

 

The Complaint and future legal documents filed with the court become part of the public record, available to public scrutiny.

Can my attorney file a complaint without my approval?

 

A lawyer cannot initiate the formal litigation process by filing a Complaint without first receiving a client’s express or implied permission.  Failure to receive permission from the client could have legal and ethical consequences for the attorney. 

 

Although the attorney is most knowledgeable in the law, the claim always belongs to one person – the client.

Why does my Complaint have to be “served” on the Defendant?

 

Service of process – or service of the Complaint and Summons – on the defendant is critical because it establishes that the court hearing the lawsuit has jurisdiction over the defendant. 

Service of process is also important because it notifies the defendant that the plaintiff is escalating their dispute by initiating the formal litigation process with the courts.  It allows the defendant to hire an attorney, respond to the allegations in the Complaint, and form a legal defense.

What does the civil litigation process look like?

 

The civil litigation process is divided in to four general stages: 

  • Stage 1:  filing initial pleadings, such as the Complaint and Answer;

  • Stage 2:  discovery, which is the exchange of information, records, and taking of depositions;

  • Stage 3:  dispositive motions and pre-trial procedure, where the issues are narrowed for trial; and

  • Stage 4 trial. 

At any stage, legal disputes could be escalated in an appeal.  Most cases settle before reaching the trial stage.

Why do attorney fees increase for litigation?

 

Attorney’s fees increase for litigation, because it requires significant more time and resources of the attorney and his office. 

 

For instance, formal litigation imposes mandatory deadlines the attorney must follow, it requires the attorney to prepare for and attend legal hearings and depositions, and it necessitates that the attorney respond to different legal motions and address other legal disputes. 

 

Incidentally, the increasing attorney fees help ensure that the client is committed to pursuing bona fide legal disputes.

How long does the defendant have to file an Answer to my Complaint?

 

In Georgia, a defendant typically has 30 days after service of the Summons and Complaint to file an Answer.   However, if the proof of service is not filed with the court within five business days after the service was made, the 30-day clock does not begin until after proof of service is filed with the court.

How long does it take for a case to go to trial?

 

A civil case will not usually go to trial until at least eight to twelve months after the Complaint is filed.  But, this is highly susceptible to change, depending on the complexity of the case, the legal issues involved, and the court’s docket and availability. 

 

It’s not uncommon for case to be in litigation for a year and a half, two years, or longer before it can go to trial.

Who pays the expenses of litigation?

 

Generally, each party to a lawsuit pays his own litigation expenses, irrespective of who “won" or "lost."  A personal injury attorney initially pays for all of their client’s litigation expenses.  In this way, if the case does not resolve and the Plaintiff loses the case, the attorney takes all of the risk and absorbs all of the costs.  However, if the case settles, the attorney’s expenses are reimbursed out of the settlement.

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