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YOU HAVE BEEN SUED
You have taken the first step. You have reported and sent the summons and complaint
to Midwest Claims Service. In turn we have assigned the suit to appointed defense
counsel. This law firm will represent the named defendants that are covered under
the policy. We will be working closely with defense counsel in their handling of
the defense of this case.
Now that this matter is in litigation, it can only be resolved by dismissal, settlement,
or a trial.
We would like to take this opportunity to outline how we will proceed in developing
this case for trial. Every step that defense counsel takes will be with your interest
in mind.
HOW THE LAW SUIT PROCEEDS
The Complaint/The Lawsuit
The first thing that happens is the defense attorney will file an “answer”. There
is limited time to file this answer and a lot of information must be gathered to
respond to the allegations in the suit. That is why it is so important to provide
us notice timely and we thank you for complying with this reporting procedure. Failure
to respond within the required period of time the suit will go into “default judgment”,
which means you lose the case and its only a matter of damages to be calculated
by the court.
Discovery Proceedings
After the answer has been files the defense and plaintiff attorney will move to
discovery. This is where the two attorneys will obtain all the information they
can about the case. This will involve oral depositions, written interrogatories,
request for production of documents and requests for admissions of facts and damages.
Depositions:
A deposition is an informal proceeding conducted under oath. After a lawsuit is
commenced, the attorneys for both the plaintiff and the defendant have a right to
require the opposite party to appear at a designated time and place for a deposition.
A deposition is a series of questions asked by the opposing attorney, your own attorney
and a court reporter whose job it is to take down everything that you say after
first administering an oath to you so that everything you say is given under oath.
The importance of a deposition to the ultimate outcome of a lawsuit cannot be over-emphasized.
After you have given your deposition under oath, the court reporter writes up all
of the testimony and files it with the court. That means that your testimony is
a matter of permanent record and can be referred to by any of the attorneys during
the trial of the lawsuit. You can see that once you have testified at a deposition
you are absolutely and firmly committed to that testimony and there cannot be any
variance from the deposition testimony and the testimony at trial unless there has
been an honest mistake in recollecting some of the facts.
Because the claim out of which the lawsuit arises has generally happened quite some
time ago, it is extremely important that you confer with your attorney before giving
your deposition so that your memory can be completely refreshed from the investigation
file as to the facts of the claim.
The scheduling of a deposition may cause you considerable inconvenience but the
scheduling is done pursuant to court order and should not be changed unless there
is an emergency situation. Please confirm the date and time of the deposition just
prior to the arranged date.
How to be an effective witness:
1. Tell the truth. A lie may lose the case. In a lawsuit, as in all other matters,
honesty is the best policy. Telling the truth requires that a witness testify accurately
about what he knows and actually saw. If you tell the truth and tell it accurately,
nobody can cross you up.
2. Don’t guess. If you do not know, say you do not know or do not recall or remember.
Give positive answers when you can.
3. Understand that you can’t possibly give a truthful and accurate answer unless
you understand the question. If you don’t understand the question, ask the attorney
to repeat it.
4. Take your time and give the question such thought as it requires to understand
it, think about your answer, then give it.
5. Answer the question that is asked then stop. Don’t volunteer information. Answer
the question in as few words as possible. Don’t ramble
6. Talk distinctly and loud enough so everybody can hear you. Do not chew gum. Keep
your hands away from your mouth.
7. Give audible answers so the Court Reporter can hear you. Don’t nod your head
or say, “Uh-huh” the Court Reporter is writing down everything said.
8. You are on your own; do not look at your attorney for help when you are on the
stand. If you look at the attorney for your side when a question is asked on cross-examination
or for his approval after answering a question, the jury or judge is bound to notice
this and it will create a bad impression.
9. Don’t argue with the attorney on the other side. He has a right to question you,
and if you give them some smart talk or give evasive answers the Judge may reprimand
you and tell you to just answer the questions.
10. Be courteous is the best way to make a good impression on the court and jury.
Be sure to answer “Yes or No” and to address the judge as “Your Honor”
11. If asked whether you have talked to the attorney on your side, admit it freely.
12. Avoid joking and wise cracks. A lawsuit is a very serious matter. Expense, time
and many people are involved.
13. Look at the jury when answering the questions. Jurors want to know what the
witness has to say.
14. One person talks at a time. Don’t talk when the attorney or judge is talking.
If there is an objection made, keep quite. The judge will rule on the objection.
Interrogatories:
Interrogatories are written questions, which are used to obtain information that
may be helpful in preparing the case. Defense counsel may send them to the plaintiff
and the plaintiff and the plaintiff’s attorney may submit interrogatories to you.
If so, defense counsel will seek your help in providing the necessary information.
Trial Preparation:
After the above steps are completed, along with any additional work that may become
necessary, the case will be ready to go to trial. You will be notified of the trail
date. Many times the original trial date is not a definite one, and your case may
have to wait a completion of a previous case on the Court’s docket.
Before the trial, there will be a pretrial conference. The purpose of a pretrial
conference or a pretrial settlement conference is to get all the parties together
before the trial to look at scheduling and explore the settlement of the case. You
may or may not be called to attend this conference.
If the case goes to trial, defense counsel will go over the case with you and advise
you of what to expect at the trial. This is done shortly before the trial so everything
will remain clear to you. There will also be time to ask any questions about anything
that may be of concern to you, and to make sure everything is understood.
The procedures outlined above may take a year or more. In fact, it is not uncommon
for a case to take two years of more before it is resolved. This is due to scheduling
problems of other attorneys, other parties, expert witnesses, and the crowded nature
of the Court’s calendar. However, we will do our best to resolve this matter as
quickly as possible. If a settlement is appropriate and possible, the case may be
concluded at any part during the process.
Suggestions to work together on the suit:
1. Please get our approval or approval of defense counsel before you talk to anyone
concerning the case, especially news reporters.
2. The attorney that was hired by us is your attorney. You are obligated to cooperate
with the attorney and us on all matters during this process.
We will pay all defense cost. We want you to be interested in this case, the procedure
involved and the eventual outcome. Defense counsel will do their best to keep you
advised of all developments in your case, but we want you to come to us with any
questions or suggestion you may have.
Reservation of Rights
In some claims there may be allegations in the complaint that are not covered or
may not be covered in the policy. In those cases we are obligated by law to send
you a “reservation of rights” letter. The letter will acknowledge the summons and
compliant, list the allegations that are not covered or may not be covered and the
applicable exclusions in your policy. The attorney that has been hired on your behalf
is your attorney and will not be involved in any coverage discussions. The attorney
representing you will defend all allegations in the complaint. Midwest will work
with you on the allegations and issues that are not covered.
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