The Role of a Civil Litigation Attorney

Civil litigation attorney Dan Murphy of the Murphy Law Group describes what civil litigation is like and attorney does during and before trial to help their client get the best outcome. What can a civil litigation attorney do for you?

John: Hi, I’m John Maher. I’m here today with Dan Murphy of the Murphy Law Group in North Andover and Boston, Massachusetts. Today, we’re talking about civil litigation. Welcome Dan.

Dan: Hey John, thanks for having me.

John: Sure. Dan, tell me a little about civil litigation. What is that?

Dan: John, broadly defined civil litigation is basically any type of litigation matter that is not a criminal matter. Criminal matters are separate than civil litigation but civil litigation is a broad term that encompasses all types of cases ranging from business disputes to individual, personal injury disputes as an example.

John: What are some of the most common types of civil litigation matters that you see?

Dan: Well from an individual’s perspective, anytime an individual is harmed, it may bring in the possibility of a civil litigation. Whether it’d be a harm suffered by a trip and fall, by an automobile accident, or by a breach of contract–that will all be encompassed within civil litigation.

John: As a civil litigation attorney, what’s your approach to handling those types of cases?

Dan: Well, you’re always looking to find the best outcome for your client. Which means that at the outset of a case when you’re brought into a case, whether it’d be because your client has been sued or because your client has been damaged in some way, to do a complete evaluation of the case early on. It’s important to evaluate the case, evaluate the strengths and weaknesses of a case, and evaluate what needs to be done in order to completely understand your client’s standing in the case, whether it’d be continued investigation or whether it’d be a dialog with the other side.

It’s important that the outset of the case to do as much as you can so that you can counsel your client as to what they can expect in the potential litigation.

John: What kind of steps do you take when you’re doing an investigation in looking into the case for the first time? What are the steps that you take?

Dan: For example for the breach of contract claim, if someone’s claiming that your client had in some way breached their obligations under a contract, you would want to see exactly what the allegation is to what the breach is, you’d want to see what evidence the other side has to date to show the breach. You’d want to talk to your client about the allegation as to what their defense is, or potential defenses are. You’d want to evaluate what the possible damages would be.

John: What’s the next step after you’ve done the investigation?

Dan: Again, depending upon whether or not you’re on the defense side or on the plaintiff side. If you’re on the plaintiff side as an example and it’s a personal injury matter: you’ve looked, and your client was injured by a trip and fall. You’d want to look and you’d want to see where the trip and fall occurred. You’d want to take pictures of it. You’d want to make sure that you did what was necessary to preserve what might be necessary down the road, to show that there was negligence on the part of the defendant. That will be all be important to establish causation.

Then beyond causation, you would want to be able to show that there’s a nexus between the causation and the injury suffered by your client. You’d have to make sure that you did what was necessary to preserve whatever medical evidence is out there, medical records, so forth and so on. You’d encourage your client to take whatever steps is necessary to get better, and to take care of their own health. That would be the outset of a personal injury case as an example.

On the business side, if I use the example of your client being charged with a breach–if for example your client has been damaged because someone else has breached the contract, you would want again gather all of the evidence that you had in order to support that. You’d want to put together probably at the outset a demand letter that would be sent to the other side outlining your case and making an aggressive demand on behalf of your client.

John: At what point should an attorney be hired after a dispute between two parties becomes apparent?

Dan: As early as possible. The longer you wait, chances are the more that you’re opening yourself to exposure. You want to minimize exposure. You want to make sure you hire an attorney who’s looking to minimize your exposure on the defense side. On the plaintiff side, you’re looking at someone who is going to want to maximize your recovery. The earlier you bring someone on, the better chances that they’re going to do the kinds of things that I discussed in terms of preserving the evidence and mounting the things that will be necessary ultimately to prove your case.

John: What do you think that the role of a civil litigation attorney is during the case and what the most benefit is that somebody gets by having an attorney?

Dan: The best attorneys that I have been against have been attorneys who have worked diligently to find an outcome for their client, to maximize the outcome for their client. That’s the absolute truth. I would rather have an attorney on the other side who is a good attorney, who’s working to maximize the benefit to their client, than to have somebody who really isn’t paying attention to what’s going on. If you get two good attorneys in the case, who do the proper evaluation of a case and looked toward resolution in a most efficient way for their clients, you’re going to find a way to resolve a case.

What’s most important there are two things. One, for the attorney to completely evaluate the case, be on top of the case. Two, to have a real line of communications open with the client, so that the client understands everything that’s going on. The client understands when the attorney makes a recommendation as to resolution of a case because they feel as though they found some good leverage to use, to reach that resolution that the client is on board with that.

They’re not looking just to fight the fight, because looking to fight the fight is going to do nothing other than cost a lot of money down the road. The longer you go into a litigation, the more difficult it is to resolve litigation.

John: All right. That’s really great information Dan. Thanks again for speaking with me today.

Dan: Thank you John.

John: For more information, visit the firm’s website at mlgllc.com or call 978-686-3200.

The Steps in a Civil Litigation Case

Dan Murphy of Murphy Law Group describes the steps in a civil litigation case: what happens immediately after you file a claim, what the discovery process is like, and how a case moves to trial. He explains why sometimes cases don’t end in a jury verdict.

John Maher: Hi, I’m John Maher. I’m here today with Dan Murphy of the Murphy Law Group in North Andover and Boston, Massachusetts. Today we’re talking about the steps in a civil litigation case. Welcome, Dan.

Dan Murphy: Thanks for having me, John.

John: Sure. Dan, once a case has been filed, can you walk me through what occurs in a civil litigation case after that?

Dan: Sure. If you are the plaintiff, you’re in charge in terms of getting the case started. You filed the complaint, the complaint has been filed, and now the next thing you’re doing is waiting for a response from the defendant or defendants and that can take the form of simply an answer to a complaint or can take the form of a motion to dismiss.

It can also include, when you’re talking about an answer, it can include various affirmative defenses that are raised as well, but the next step after a complaint has been filed and has been served is for the defendant to respond to the complaint.

John: Can you tell me a little bit more about that? What are the options that a defendant has in terms of responding to the complaint?

Dan: It depends. It can range from raising jurisdictional defenses, as an example, saying that the defendant is not subject to the jurisdiction of the case, to the county or the jurisdiction in which the case was brought in and seek to dismiss the case on those grounds.

The defendant could state that the plaintiff simply failed to state a case upon which relief can be granted, which is a 12(b)(6) motion to dismiss, or the defendant might just, as I said, simply answer and deny the allegations in the complaint. The plaintiff would then play off of that, obviously. If the defendant moved to dismiss, then the plaintiff would need to meet the arguments that were raised by the defendant in the motion to dismiss and that would be the next step.

John: Can you explain that then: what is the next step then after you’ve responded to the complaint?

Dan: Once the defendant has responded to the complaint, as an example, it’s going to go on one of two directions. One, if the defendant has simply responded by answering the complaint and raising affirmative defenses but has not filed a motion to dismiss, then the case moves to discovery. If the defendant has filed a motion to dismiss, then the plaintiff will have to file responsive pleadings and the court would in all likelihood have a hearing on the defendant’s motion.

John: Explain “discovery” a little bit more and what that is?

Dan: Sure. Once you get beyond the initial complaint response, whether it be by answer or by pleading, you go into the discovery phase. The discovery phase is the most lengthy and most expensive phase of any litigation with the possible exception of the ultimate trial of the case. The discovery phase means an exchange of written questions, which are in the form of interrogatories.

They’re in the form of document requests to each side that each side would in all likelihood exchange. And then once you move from the written discovery, you move to the phase of discovery that in and of itself is probably the most expensive, which is the deposition phase of discovery, where you actually take testimony of witnesses under oath–which takes a fair amount of preparation on both sides, both preparing the witness and for the person who’s taking the deposition to prepare for the deposition in itself.

John: Are both sides, the plaintiff and the defendant, involved in that deposition of witnesses?

Dan: Yes, both sides are involved in the written discovery as well as the deposition process, and there are other things. There are things called “the request for admissions” that could possibly occur during the written phase or could occur during the deposition time period. There are various avenues that the attorneys have the opportunity to go down and various approaches that they can take in order to address this fact-finding part of the case, which is called “discovery.”

John: Okay. Then what comes next after discovery as part of the civil litigation steps?

Dan: Generally, there’s a flurry of potential motions toward trying to resolve some or all of the issues as a matter of law prior to going to trial. There’s a period of time during which, as an example, the defendant can say the plaintiff has now had an opportunity to take all the discovery necessary and it doesn’t have the facts to support the allegations in the complaint and therefore the complaint should be dismissed as a matter of law, or judgment should enter for the defendant as a matter of law.

That typically happens at the end of discovery, it’s called “a motion for summary judgment” and that could be on the entire case or it could be on various aspects of the case. For example, if there are several counts, say, there are five counts that the defendant may take the position that the plaintiff has failed to establish what was necessary on counts one, two, and three, and therefore those counts should be dismissed.

John: This is not in trial yet, so is it just a judge who is making that determination? That it doesn’t seem like one side has enough grounds to continue on with the case at that point?

Dan: Yes, it is a judgment as a matter of law based upon facts that are not in dispute. The judge cannot make a determination for one side or another if there are genuine facts in dispute, because those genuine facts that are in dispute are to be left for the fact-finder–whether it be ultimately a jury, or if it were a jury waived trial, it would be by a judge, after testimony before the judge.

John: There’s no opinions involved here, it’s just purely on the facts?

Dan: It’s strictly an opinion as a matter of law. It’s a judge applying the law to the circumstances upon the facts that are not in dispute. The judge then makes a determination that the facts that are not in dispute as applied to the law are insufficient for the plaintiff to move forward. Therefore, the plaintiff loses as a matter of law, as an example.

John: Okay. Then what’s next after that if it’s determined that we’re going to keep continue to move forward with this?

Dan: Well, if everything can’t be determined as a matter of law, then it goes to the fact-finder, which is either the jury or in the case of a jury waived trial, the judge. That would be the trial phase.

John: Then is the trial phase the end of a civil litigation case?

Dan: Yes, that’s the biggest misnomer out there. That is that you think you’re moving toward a final resolution to finally put the case behind you. A jury comes back with a verdict, one way or the other, and that’s it. Unfortunately, that’s not the case. There’s always the appeal phase. And if the aggrieved party, in other words the party against which a judgment was rendered, determines that they have an issue that they need to appeal, the Appeals Court will hear that. If the Appeals Court agrees with them, the Appeals Court could remand the case back to trial, and you’re basically starting all over again.

John: Okay. Can you to talk a little bit about settlements and how settlements are determined?

Dan: Well, settlement is something that your civil litigator should always be looking forward [for] you. Always want to be looking toward a resolution of a case, and I mean that from the very beginning to the very end. There are various points where it’s obvious that the resolution should be sought but, as I think I mentioned to you before, good lawyers on both sides will always look toward resolving a case for their client.

The longer you go into a case, the more difficult it is to resolve. Just take as an example: there’s a, say, a $300,000 dispute. Well, yes, at the beginning of a case before you, when you’ve only spent a few thousand dollars to evaluate the case, there’s a lot of room between 0 and $300,000 to get a case resolved. Down the road after spending a hundred, each side spends a $100,000 on a case, it becomes much more difficult to resolve that $300,000 case because each side has up the ante by a $100,000.

John: Okay, yes. All right, well, that’s really great information, Dan. Thanks again for speaking with me today.

Dan: Thank you.

John: For more information about the Murphy Law Group, visit the firm’s website at mlgllc.com or call 978-686-3200.