Page 20: of Marine News Magazine (May 2013)

LEGALget the Complaint to your legal team right away. Once you have been properly served, your legal team must determine the most appropriate response. In the event that the suit was not Þ led timely, that they named the wrong party, or that they do not have a cause of ac- tion, the Þ ling of a motion to dismiss the lawsuit may be appropriate. If not, an answer that denies the plaintiffÕs allegations and asserts the companyÕs afÞ rmative defenses must be Þ led prior to the deadline. In many courts, once the answer is Þ led, the Court will set up a status conference to select a trial date, discuss any pecu- liar issues that may be important and formally start the dis- covery process. In the Federal Court system, one can expect a trial date to be scheduled roughly eight to ten months from the status conference. Once the stage is set, the discovery process begins. Although each case is different, parties usually follow a somewhat predictable pattern of preparing initial disclosures, exchanging written discovery, issuing record subpoenas and document requests to third parties, deposing the plaintiff and fact witnesses, exchanging expert reports, deposing experts, and then taking trial perpetuation depositions, if needed. The dis- covery phase of the case is where the bulk of the work is done. It is also the phase of the case that requires company resources to assist the legal team in producing the requested documentation and witnesses needed to work up your side of the case and to respond to the other sideÕs discovery requests. The work done during the investigative phase can save you resources during the discovery phase as most of the requested information would have already been compiled and provided to counsel. Once the discovery phase is complete, the trial prepara- tion phase begins. This phase includes the Þ ling of pre-trial motions, the Þ ne tuning of arguments and the preparation of trial witnesses and exhibits. Often, productive settlement discussions are held during this phase once both sides have a Þ rm grasp of the evidence that will be presented at trial. The motion process may cover a range of motions seeking the dis- missal of the plaintiffÕs case for procedural or substantive rea- sons, motions to exclude the testimony of experts or motions to exclude the presentation of certain evidence during the trial of the matter. These motions go a long way towards setting the terms of engagement for the trial battle to follow. Work done at this stage can streamline the trial process and keep the jury from hearing prejudicial evidence that is not admissible. IN THE COURTROOM The trial, if it comes about, is actually a simple event. The parties will have sifted through the evidence and will be pre- pared to tell their respective stories as to why they are entitled to the relief that they seek. The parties will spend the Þ rst part of the trial questioning and selecting jurors. Once the jurors are selected, each party will be provided with an op- portunity to make an opening statement. Once the opening statements are complete, the plaintiff will put on his or her case by calling witnesses and introducing evidence. Once the plaintiff rests his case, the parties will make various oral mo- tions related to the plaintiffÕs burden of proof. Once those motions are ruled upon, the defendant puts on its case. Once the defendant rests, various oral motions are made. Then, the parties make closing arguments and the case is given to the jury for consideration. Prior to retiring to the jury room to deliberate, the jurors are read ÒchargesÓ that outline the law that they are to apply during the deliberative process. Often, after the jury begins to deliberate, both sides seem to believe that reasonable jurors have to see it their way. However, jurors, unlike the litigants, did not have the opportunity to live with the case for the duration of the litigation. They also come to the courthouse with many pre-existing opinions and life experiences that they will use to decide your case. As such, it is often difÞ cult to pinpoint how a jury is going to evaluate your case. During post trial interviews with jurors, we are always interested to see what evidence the jury found to be important and persuasive. Often, the jurorsÕ analysis is totally different than those of the litigants or the judge. This perspective leads to signiÞ -cant uncertainty as to the potential outcome. Once the jury has reached a decision, the jury is brought into the courtroom and the juryÕs verdict is read. Once the ver- dict is read, the jury is released. The Judge will then prepare a judgment based upon the juryÕs verdict. This written judgment is the event that begins the post-trial motion and appeal phase of the litigation. Although the trial phase is over with the issu- ance of a judgment, the Þ nal resolution of the claim may be far from over if the aggrieved party wants to continue on via mo- tions Þ led with the trial court, with the hopes of overturning the jury verdict or taking the case to the appellate court system. BOTTOM LINE: YOURS ?Clearly, litigation can be a signiÞ cant drain on corpo-rate resources and creates risk. Beginning the investigative/ discovery process as soon as is possible, after an accident, with the presentation of your case to a court in mind, will assist your legal team in putting on a strong case with a clear message as to why the jury should decide the matter in your favor. As with any aspect of business, expending time and resources early in the process can often pay real dividends later. Although it is not possible to avoid uncer- tainty when litigating a Jones Act personal injury claim, proper planning can help turn the tide in your favor. 20 MNMay 2013MN May2013 Layout 18-31.indd 20MN May2013 Layout 18-31.indd 205/3/2013 12:51:49 PM5/3/2013 12:51:49 PM