Chapter 3 - PRE-SUIT CONSIDERATIONS Consulting with an...

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PRE-SUIT CONSIDERATIONS Consulting with an Attorney: The first step to take when contemplating a lawsuit, as well as when facing a lawsuit, is to consult with a qualified attorney. Legal Fees: The anticipated expenses of investigating and prosecuting or defending the case, if necessary through an appeal, and the manner in which those fees will be paid. Fixed Fees: A flat rate for the attorney’s time and effort, typically excluding expenses for expert witnesses, depositions, etc. Hourly Fees: A fee based on the attorney’s time expended on the matter, sometimes varying depending on whether that time is spent researching, engaging in discovery, or before the court. Contingent Fees: Typically set as a percentage (or a declining percentage) of the damages recovered in the event of a successful outcome. Settlement Considerations: The limited time and money a client has to invest in a lawsuit, particularly when the remedy the client might recover is also limited, may Ch. 3: Court Procedures - No. 1 Clarkson et al.’s Business Law (11th ed.)
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suggest trying to resolve the dispute without filing suit or early in the litigation process. Ch. 3: Court Procedures - No. 2 Clarkson et al.’s Business Law (11th ed.)
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PLEADINGS Pleadings: Written documents that inform each of the parties of one another’s claims and defenses and specify the issues involved in the lawsuit. The primary pleadings are: (1) Plaintiff’s Complaint , which sets forth the claims asserted by the party seeking affirmative relief. (2) Defendant’s Answer , which: (a) responds to the claims set forth in the Complaint and, where appropriate, (b) asserts affirmative defenses (reasons why the plaintiff’s claims fail or are limited as a matter of law or equity), and, where appropriate, (c) asserts counterclaims (claims for affirmative relief asserted by the defendant). If the defendant does not answer within the time allotted by the applicable rules, the plaintiff may seek a default judgment . (3) If the defendant asserts a counterclaim, the plaintiff may file a Reply .
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Once the plaintiff has filed her complaint or petition, she must have each defendant served with process – typically, a copy of the complaint and a summons from the court informing each defendant of his obligation to answer or otherwise appear within a specified time or risk default. A court may not exercise jurisdiction over a defendant until it has proof that the defendant was properly served. While the acceptable means of service of process vary depending on the court and the circumstances, generally: An individual defendant may be served at his residence or at his principal place of business; A corporate defendant may be served by serving an officer or registered agent , designated for the purpose of receiving service; and A partnership defendant may be served by serving any (general) partner.
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Chapter 3 - PRE-SUIT CONSIDERATIONS Consulting with an...

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