Contents:

Can you settle the thing?

Complaint and Responsive Pleadings

Discovery

Dispositive Motions

Trials

When will I be "in trial?"

Can you settle the thing?

I mean it! Have you talked and attempted to negotiate a resolution with the other party? I STRONGLY suggest that you do before you initiate litigation. The filing fee alone in non-small claims cases is $100.00.

If you can't settle it, then you may need to file a lawsuit. But even after a lawsuit is filed, there are mechanisms that you can use to try to avoid lengthy and costly litigation. This is called "Alternative Dispute Resolution." It involves MEDIATION, ARBITRATION, and MINI-TRIALS.

In MEDIATION, you and your attorney would meet with the other party and their attorney and with the mediator. The mediator is an attorney that has received special training in skills that help him or her try to get the parties to resolve their differences. The mediator is either agreed upon by the parties in advance, or the Court appoints a panel of three from which each party can strike.

Mediation has been extremely successful in reducing the stress of overwhelming case loads on our Indiana courts. Of course, you pay your prorated portion of the mediator's costs, which range from $100.00 to $175.00 per hour. If there are two parties involved, you would pay 1/2. I realize that this sounds expensive, but paying your attorney for one court appearance and travel time to and from the court can cost you three hours of attorney time. That three hours of attorney time for ONE hearing could be better spent on six hours of mediation time that ends the litigation!

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Starting the Lawsuit

In cases other than small claims, criminal, or divorce/custody support situations, a lawsuit is begun in Indiana by the filing of a Complaint by a PLAINTIFF. A Complaint is a document which includes a short and plain statement of the claim showing that the PLAINTIFF is entitled to relief. It also includes a demand for the relief which the PLAINTIFF feels he or she is entitled to. Indiana Rule of Civil Procedure [IRCP] 8(A).

The person being sued is called the DEFENDANT. A responsive pleading, either an answer or a motion allowed under the rules, MUST be filed by the DEFENDANT and served upon the PLAINTIFF within twenty [20] days after service of the Complaint. IRCP 6(C). If you were served by mail, you have three (3) additional days. IRCP 6(E).

If either party wishes, and the case is one that is not "in equity," he or she can demand a trial by a jury of six. IRCP 38(A). This demand must be made, in writing, any time after the initiation of the lawsuit and until 10 days after the FIRST responsive pleading to the complaint has been made, or 10 days after a responsive pleading to a counterclaim. IRCP 38(B). Though determining whether a case sounds "in equity" or not may sometimes be confusing, a good rule of thumb is: if you are suing for MONEY damages ONLY, the case is a cae "at law" and NOT "in equity." If, however, you are asking the Court to ORDER someone to do something or to stop doing something, then the case is "in equity" and a jury would not hear the evidence.

If a responsive pleading is not filed in a timely fashion, the PLAINTIFF can file for a default judgment. IRCP 55.

An answer can also include a counterclaim, which states that the person being sued has a claim for relief against . An answer MUST include a counterclaim if it arises out of the transaction or occurrence that is the subject-matter of the opposing party's claim and does not require third parties over whom the Court can't acquire jurisdiction. IRCP 13(A).

There are certain motions that a DEFENDANT can file that allows the DEFENDANT to delay filing an answer until the motions are ruled upon. They are listed in IRCP 12.

If a DEFENDANT files a counterclaim, then the PLAINTIFF must file a responsive pleading to the counterclaim.

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Learning about the other person's case

After the preliminary motions are filed, the parties conduct "discovery." "Discovery" is the process by which each party is free to seek information about the other party's case. This can be done by way of oral depositions, IRCP 30, depositions upon written questions, IRCP 31, interrogatories, IRCP 33, requests for production of documents and things, IRCP 34, requests for physical and mental examination of persons [when the mental or physical condition of a party is in controversy], IRCP 35, and requests for admission, IRCP 36.

If one party fails to make or cooperate in discovery, the other party can file a request for court intervention which would allow the court to order that the discovery be given and also allows the court to level sanctions against the party who is not cooperating. Sanctions would include the assessment of reasonable attorney fees.

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Can we win/lose before trial?

There are preliminary motions that can be filed to try to end an action before trial. One of these is a motion for summary judgment pursuant to IRCP 56. If the Court finds that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law, all or some of the PLAINTIFF's claims can be ruled upon.

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Trials

I will not go into the details of trials. There are far too many variables that can occur to allow me to paint a summary with even a broad brush!

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A sense of Time

I do, however, just want to touch upon the stark reality of TIME as it relates to trials in the State of Indiana. If I were to file a lawsuit on July 1, 1997, complete my discovery within, say, 120 days, and ask the Court on November 1st for the next earliest and available three day jury trial setting, I probably would not get a firm trial date until anywhere from August of 1998 until March of 1999.

That is the difficulty in our system of justice. Too many cases and not enough courts!

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