What Exactly is Involved in the Litigation Process?

What Exactly is Involved in the Litigation Process?

Over the course of my career, many people have asked me what area of law I practice in, and I usually respond by stating “civil litigation.”  Then I am typically asked, “What do you mean by civil litigation?”  The civil in “civil litigation” refers to the form of law, and generally speaking, litigation is the process that occurs after a lawsuit is filed and the parties are attempting to resolve a dispute, with the potential for having a trial to decide the issues for the parties.  Many attorneys, including myself, emphasize handling litigation matters as part of their practice.  While every case has different facts and many contain different legal issues, there are some similarities among all litigation matters that you should be aware of. This awareness will make the process easier to understand and can make it less stressful for you should you ever find yourself in a lawsuit.

Most types of litigated matters follow a similar process; however, I will use a personal injury matter as an example for how things typically proceed.  This process takes place before the lawsuit is filed, up through a trial and potential appeal and can take several years of time.  The following sequence of events is typical for a claim by someone who sustains personal injuries as a result of someone else’s negligence:

1.)  First, the client meets with the attorney to discuss injuries and who is at fault for causing the accident or incident.

2.)  Second, the attorney investigates the facts relating to liability and damages, gathers evidence and speaks with potential witnesses.

3.)  From that point, the client treats with doctors or other health care providers until they reach the end of their medical treatment, and the attorney gathers all relevant medical records, bills, and other evidence of damages which have been caused by the negligent party.  This process may take quite some time, as we do not want to try to settle cases before the client has reached the end of their medical treatment, because once a case is settled, no claim for that same incident can be pursued again.

4.)  After that, the attorney and client discuss the value of the claim, and the attorney sends out a demand to the insurance company, along with all supporting documentation, to attempt to settle the claim for a fair and reasonable value.

 5.)  Then, if the insurance company is unreasonable with its offer, the attorney will file a lawsuit against the negligent party and his or her insurance company, and the case will proceed in a circuit court in the county in which the lawsuit is filed.

6.)  Next Discovery takes place.  The process of discovery is when both parties learn about the relevant facts and strengths and weaknesses in each other’s cases.  The parties each serve written interrogatories (questions) to the opposing side; the parties also request documents from the opposing side, and it often involves the insurance company seeking authorizations to be signed by the injured party so that the insurance company can obtain all pertinent medical records and bills.  The parties in the lawsuit also take depositions of the parties, as well as other important witnesses, including doctors or health care professionals and of other experts who have been hired.  A deposition involves the attorneys asking the witness numerous questions, sometimes for several hours, where the witness must answer the questions under oath and a court reporter transcribes all the questions and answers.

7.)  Once most of the discovery is completed by both sides, each side evaluates their respective cases to determine whether they are in a position to try to settle the case.  The parties will then either pursue Mediation, or the Court will usually order mediation so that the parties have to attempt to settle the case without having to proceed with a trial.  Mediation is a process that is not binding, and no one can be forced to settle unless they agree to the settlement terms.  Mediation usually involves the parties jointly hiring a neutral attorney or a retired judge to assist the parties in taking a closer look at the strengths and weaknesses of their cases.  The mediator will go back and forth for several hours between separate rooms where the respective parties are sitting with their attorneys.  The mediator tries to persuade each party to be reasonable in light of the risk and expense of going forward and having a trial, and hopefully the parties will agree on a settlement.

8.)  If mediation fails and the parties do not settle, then the parties will have a trial.  The trial can be only to the judge, or either party can request a trial to a jury, which usually involves a 12-person jury.

9.)  During the trial, the parties’ attorneys, with the assistance of their clients, will pick the jury through a process called voir dire.  The attorneys will give opening statements, call witnesses, and present documents and other evidence to support or defend their positions.  A jury trial can last from a half day to several weeks, depending on the complexity of the case and the number of witnesses each side intends to call.  The parties will then give closing arguments to the jury and try to persuade the jury to find in their favor.

10.)  The jury then goes from the courtroom back into a separate jury room to deliberate privately and to complete a questionnaire which is called a special verdict.  The answers the jury gives on a special verdict will determine who is at fault for the incident and the amount of damages that should be awarded to the injured party.  The process of jury deliberations can take less than an hour to more than several days, depending on the complexity of the case, the number of exhibits that it must consider, and the number of questions it must answer on the special verdict questionnaire.  The judge will then read the answers on the verdict to the parties once the jury has completed the questionnaire.

11.)  Finally, after the verdict if the losing party is required to pay damages, they can either pay it, try to negotiate for a lower amount, or appeal the case to the Wisconsin Court of Appeals.  If the losing party does not appeal and does not pay the judgment, then the winning party must attempt to enforce a judgment through collection procedures.

While it is best for the parties to attempt to resolve issues without having to file a lawsuit, the litigation process may be the only way a party can actually enforce their legal rights if the other side is not willing to cooperate or be reasonable in reaching a resolution to the dispute.  While attorneys try to work with their clients to persuade the other party to reach a resolution so as to avoid the risk and expense of litigation, being able to effectively litigate is one of the critical skills an experienced attorney must have in order to increase their client’s chance of having a successful outcome.  At Anderson O’Brien, our experienced litigation attorneys assist clients from the very beginning of a dispute through the entire litigation process, including any trials or appeals that may be necessary.

If the parties have a full understanding of this entire process, including the amount of time, risks, and expense involved, that should assist them in making well-reasoned decisions in determining what efforts they wish to take in attempting to resolve their dispute, or to file a lawsuit and go through the litigation process to enforce their legal rights.

 

Yours, Mine and Ours – How Property is Divided at Divorce

Yours, Mine and Ours – How Property is Divided at Divorce

In Wisconsin, property is presumed to be equally divided between the parties in a divorce action. Almost all property owned by the parties is subject to equal division. This includes property that is titled solely in one spouse’s name and property acquired by a spouse prior to the marriage. Only property acquired by way of gift or inheritance made to an individual is excluded from the division of marital property.

While it is presumed that all property not acquired by gift or inheritance is to be divided equally, the courts can consider a litany of factors when a party requests an unequal property distribution. It is not uncommon for parties in a divorce action to ask the court to credit them for premarital assets. Similarly, courts are also allowed to consider the contribution of each party to the marriage, giving appropriate economic value to each party’s contribution in homemaking and child care services. Courts may be more likely to entertain such requests in cases of shorter-term marriages. However, the chances of success of arguments to alter the presumed equal division of property decrease when parties were married for a longer period of time. Ultimately, whether a court will deviate from the presumption of equal division is dependent on the unique facts of any given case.

Clients often ask how property is “equally” divided. It does not mean that both parties get a one-half ownership interest in each marital asset. Rather, each asset is given a value and entered into a spreadsheet under one of the parties’ columns. After all of the marital assets and debts are entered into the spreadsheet, each party is left with a net value of assets in their column. If a party’s net assets have a higher value than the other party’s net assets, it is common for the party with a higher value of net assets to pay an equalization payment to the other party to ensure an equal division of property.

Determination of who gets what asset and what value should be assigned to each asset may be mutually agreed to by the parties but is often litigated in contested divorces. If you have questions about property division in your divorce, contact our office to consult with one of our family law attorneys.

 

Maximizing Bequests with Charitable Contributions

Maximizing Bequests with Charitable Contributions

Many Americans wish to leave a donation to their favorite charity, community foundation or nonprofit organization when they pass away. You may be one of them. Often people decide to donate by gifting a specific dollar amount or percentage from the residue of their estate. However, you could make the most of your philanthropic intention by designating your selected organization as a beneficiary of your tax-qualified retirement plan.

Qualified retirement plans are IRS-approved retirement accounts in which income accumulates, tax-deferred, over time. These types of accounts remain the leading form of a retirement account because they allow individuals to grow their pre-tax contributions over the course of their working career. Common examples of these accounts include non-Roth IRAs, employer-sponsored 401(k)s, profit-sharing plans, and public sector 403(b) plans, as well as other tax-deferred plans.

Rather than administering your retirement account as part of your estate and making a specific bequest in the form of a cash gift to the organization, you can name the organization as a direct beneficiary of your retirement account. By naming the organization as a direct beneficiary, you will notice a double tax benefit. First, your estate will not be required to pay federal estate taxes, if the value of your estate is greater than the federal estate tax exemption, because the retirement account will receive a charitable deduction. Second, charitable organizations are tax exempt, meaning that the organization is not required to pay federal or state income taxes on the gift it receives. The organization will receive the entire balance of the account, making the most of your gift.

Another tax benefit to consider arises if you intend to give part of your estate to charity and part of your estate to individual beneficiaries. When an individual beneficiary, such as a child, receives your qualified retirement account, the IRS requires the individual to pay income taxes on the distribution. Therefore, the individual would not receive the full retirement account value. In this circumstance, you should consider leaving these individuals the remaining non-qualified accounts from your estate, such as post-tax investment accounts, Roth IRAs and common stocks. By gifting qualified accounts to a charitable organization and gifting non-qualified accounts to individual beneficiaries, you will maximize the amount you leave to all beneficiaries. Being mindful about your beneficiary designations allows you the opportunity to minimize tax payments and to make the most of your legacy gift.

If you plan to leave a percentage of a qualified retirement account to a charitable organization and the remainder to a noncharitable beneficiary, you should be aware of impacts to required minimum distributions of your beneficiaries. The timeline for the required minimum distribution for the noncharitable beneficiary may be accelerated and the individual would not be able to take the required distributions over their life expectancy. You should be on the lookout for associated tax implications before finalizing your estate plan.

An estate planning attorney, such as the skilled attorneys at Anderson O’Brien, can offer guidance as you consider a charitable gift as part of your legacy to leave a lasting impact on your community or a charitable cause that is meaningful to you.

 

Which Insurance Companies Do I Have to Talk to After an Auto Accident?

Which Insurance Companies Do I Have to Talk to After an Auto Accident?

Following an auto accident, victims are often bombarded with calls from claims personnel connected with various insurance companies asking how the accident happened and what injuries were sustained. Usually, there are three different insurance companies trying to get information: (1) the liability insurer for the at-fault driver, (2) your own auto insurance company and (3) your health insurance company.

The insurance company you have no obligation to speak to and who we recommend you do not speak to is the liability insurer for the at-fault driver. Almost without fail, soon after an accident, injured drivers will receive a call from a claims person from the responsible party’s insurance company. This claims person will likely be recording the conversation and will ask questions about how the accident occurred and what injuries were sustained; rarely is this to your benefit. Being only a few days out from the collision, the injured victim will not have the police crash report and investigation findings, will have only been discharged from urgent care or the ER and not had an opportunity to see their doctor or a specialist for their injuries. In other words, the injured victim usually does not know the full extent of their injuries or the details of the accident.

In spite of this information deficit, the at-fault insurance company will use this opportunity to lock you into how the collision occurred and what your injuries are all without the benefit and protection of counsel. This is a statement that may be used against you at future depositions and trial. Worse still, there are some insurance companies who use this early opportunity to pressure you into a accepting a settlement offer.

On the other hand, you do have a duty to communicate and cooperate with your own auto insurance and your health insurance company. Your insurance policies have specific terms and conditions that you must abide by, one of which is that the insured has a duty to cooperate and inform the insurance company about the loss (i.e. the collision and your injuries). If you choose to ignore your own insurance companies, you risk them not paying for medical treatment related to the collision and possibly risk your uninsured and underinsured motorist coverages should you need them. We are often told by our clients that one of the services they appreciate most is our office’s ability to force all insurance companies to run their questions, forms and requests through our office which we handle. This allows our clients to focus on the most important thing after an accident: getting better.

 

What Is Probate?

What Is Probate?

Probate is an often misunderstood but frequently heard term in relation to the death of a loved one. Perhaps in completing your estate planning you have been advised to “avoid probate.” But what is probate and why is to be avoided?

Probate is the name of the legal process that takes place after someone dies for the purpose of the following:

  • Proving that a deceased person’s Last Will & Testament is valid, if there is one.
  • Determining and giving notice of the proceedings to the deceased person’s heirs, any beneficiaries named in the Will, and the deceased person’s creditors.
  • Identifying, inventorying and valuing what the deceased person owned when they died.
  • Determining who will receive the deceased person’s property (heirs, beneficiaries, creditors, etc.).
  • Distributing the remaining assets as the Will directs (or to the heirs identified by state statutes if no Will exists).

The process itself involves filing documents in the local probate court to have the Will admitted and to request that a Personal Representative (sometimes called, Executor) be appointed. The Personal Representative is thereafter required to continue to provide information to the Court and the other interested parties, until the assets and expenses are fully accounted for, and then will ultimately need to obtain approval to distribute the assets to those who are entitled.

Clients often want to avoid this process because it can take a great deal of time and requires legal paperwork and potential court appearances. It is often misunderstood that having a Will is necessary to avoid probate. There are numerous ways to avoid probate, but preparing a Will is not one of them. Whether or not probate is needed will be driven by the value and type of assets owned by the deceased person. An estate planning attorney can discuss the ways to avoid probate and what might be most suitable in your situation.

 

Disclosing Defects with the Real Estate Condition Report (RECR)

Disclosing Defects with the Real Estate Condition Report (RECR)

Wisconsin law has left the dark ages of caveat emptor or also known as “let the buyer beware” in the sale of residential property. The harshness of caveat emptor has been replaced by the Real Estate Condition Report or “RECR.” Basically, the RECR requires sellers to disclose their awareness of defects. What should be a simple concept is made complex by legalistic definitions. For instance, a “defect” is defined as a “condition that would have a significant adverse effect on the value of the property; that significantly impairs the health or safety of future occupants of the property; or that if not repaired, removed or replaced would significantly shorten or adversely affect the expected normal life of the premises.” It is not hard to imagine a silver-tongued lawyer arguing that just about anything is a defect under this definition. Consider the following quote:

“Houses are amazingly complex repositories. What I found, to my great surprise, is that whatever happens in the world – whatever is discovered or created or bitterly fought over – eventually ends up, in one way or another, in your house. Wars, famines, the Industrial Revolution, the Enlightenment – they are all there in your sofas and chests of drawers, tucked into the folds of your curtains, in the downy softness of your pillows, in the paint on your walls and the water in your pipes.” ― Bill Bryson, At Home: A Short History of Private Life

If Bill Bryson is right in saying that the history of the world is found within the four corners of a home, is it futile to expect a seller of a residential home to disclose defects? Not quite. In reality, the RECR is a straightforward document requiring a homeowner to check “yes, no, or N/A” to knowledge of defects concerning elements of the house, such as the roofing. 

Blindly checking “no” to all knowledge of defects is foolhardy and may violate Wisconsin law. Notably, there is also a requirement that sellers amend their RECR if defects are discoverable after completion of the RECR but before an offer is accepted. These representations are legally binding and a buyer is entitled to rely on the RECR. Often, the RECR forms the basis for a lawsuit. Any doubt about a defect should be resolved in favor of disclosure.

 

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