Lawsuits 101

Below are some questions that many have about various point of law.
Click on the question to read the answer.

1. What is a trial?

A trial is a proceeding in a court of law during which parties present evidence to support their claim or defense. The A. W. Smith Law Firm handles civil trials which involve disputes between private parties. These may include accidents, injury cases, class action cases, or commercial litigation.
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2. How long will my case be scheduled for trial?

Every civil case is different and the length of trial can vary greatly depending upon the complexity of the case and the amount of evidence that must be presented. In addition, sometimes civil cases involve many parties. Since each party is entitled to present evidence, the length of trial will be greater if more parties are involved.
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3. What is the timeline for a lawsuit?

All lawsuits begin with the filing of a document called a Petition or Complaint. Generally speaking, for courts in Missouri, parties should not expect a trial of the case until 18-24 months after the filing . This time line could also vary greatly depending on the complexity of the case.
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4. What is the difference between a civil case and a criminal case? Do you handle both?

A civil case involves disputes between private parties, such as an action for personal injuries in an accident or breach of contract between two parties. A criminal case is brought by a prosecutor against someone who is accused of a crime. The A. W. Smith Law Firm only handles civil cases.
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5. What is the difference between a plaintiff and a defendant? Do you represent both?

A plaintiff is the person or entity who initiates the case. A defendant is the person or entity who is being sued. Usually, The A. W. Smith Law Firm represents only plaintiffs. However, we do represent defendants in select cases.
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6. What is negligence?

Negligence refers to conduct that results in injury or damage to somebody. A party is negligent if they fail to use ordinary care that would be used by most people under similar circumstances.
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7. How is an award determined?

Ultimately, a jury determines an award based on definitions of the law given to them by the judge. Juries have wide discretion in evaluating damage awards. When a case is settled outside of the court, lawyers and clients evaluate the amount of the settlement based on what the lawyers believe a jury is likely to award in terms of a verdict.
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8. How do I know if I am a victim of malpractice?

Whenever a person has an unexpected injury or result after medical treatment, a question may arise as to whether the treatment was negligent or within the standard of care. A bad outcome does not necessarily mean that a doctor or hospital was negligent. However, the only way to know if one has been a victim of malpractice is to have the facts evaluated by an experienced lawyer who may also consult with medical professionals for advice.
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9. What are the benefits of litigation?

Although avoiding litigation is often preferable, sometimes it is the only way that a party can seek redress of a grievance. Litigation provides a controlled system that allows all parties to pursue their rights.
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10. What is the difference between a settlement and an award?

The majority of civil cases are settled before trial. A settlement is an agreement among the parties to resolve the case for a specific amount of money. On the other hand, a jury award results in a formal judgment by the court concerning the dispute.
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11. What are damages?

Damages are the way that the court evaluates compensation for any losses sustained. This may include actual monetary loss such as medical bills, lost income, etc. and may also include noneconomic damages such as pain, suffering, disfigurement and loss of ability to enjoy life.
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12. What is the value of my case? Am I guaranteed an outcome in my favor?

With any claim or litigation there are never guarantees of the result. In order to properly advise a client concerning the value of a claim, the lawyer must first learn as much as possible about the facts of the case and may need to do a significant amount of investigation both before and after the case is filed.
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13. How much do I have to pay you for legal representation?

The vast majority of cases handled by The A. W. Smith Law Firm are handled on a contingent attorney fee basis. Under that arrangement, we only receive payment if we recover money for you. The amount of the percentage varies with different types of cases.
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14. How long do I have to file a lawsuit? Are there exceptions?

Every case is governed by what is called a statute of limitations which provides a time limit during which a case must be filed. If a case is not filed during that time, the party is usually barred from recovering anything. For example, in Missouri, the statute of limitations for a medical malpractice case is two years from the date of a negligent act. The Missouri statute of limitations for an automobile case is five years from the date of the accident. Sometimes an individual case might involve multiple statutes of limitations. Generally speaking, it is always a good idea to pursue your case as soon as possible so that a statute of limitations is not missed. While there are exceptions to some statutes of limitations, they are very rare and very strictly interpreted.
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15. What is a deposition? Will I have to give one?

A deposition is testimony of a witness that is taken under oath but outside a court proceeding. Lawyers on both sides of the case can determine the facts that are relevant to the case from the deposition. When you file a lawsuit, it is almost always required that you must give a deposition.
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16. What is discovery and what do I have to do during discovery?

During the time a case has been filed and is awaiting trial, the parties engage in a process called discovery. During this process the parties are allowed to ask written questions of each other and take depositions. You will be required to answer certain written questions and may be required to produce certain documents that are relevant to the case. You may also have to give a deposition.
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17. What is the difference between a mass tort and a class action lawsuit?

A mass tort case is one in which an individual has a claim that is very similar to many other individuals’ claims involving the same product or occurrence. For example, some people have claims involving a prescription drug that has caused damage and these claims may be very similar to thousands or tens of thousands of other people’s claims. This type of claim is generally called a mass tort. A class action is a case in which one or more parties act as representatives for other parties that are similarly situated but are not actively involved in the lawsuit.
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18. What do I have to do if my case goes to trial? What if I am incapacitated?

Generally speaking, when your case goes to trial you will need to be in the courtroom at all times. While this is not a requirement of the court, it is necessary to make certain that the jury understands that you believe the case is important. However, in the event you are incapacitated and have legitimate medical reasons that prevent your presence all the time, juries and the judge will understand and accept this. In severe cases of incapacity, the client spends very little time in the courtroom.
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19. What should I know before I talk to the insurance companies?

It is critical to know that the insurance company has its own interest and that it is sometimes opposed to yours. There are very specific legal rules that govern settlement of cases and injured parties can lose their rights or have their rights greatly affected if they don’t have legal representation before talking to an insurance company.
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20. What are compensatory damages?

Compensatory damages are those damages that the law recognizes as compensation for something that you have lost, such as medical bills, lost income, or property damage. Compensatory damages also include compensation for pain, suffering, disfigurement, etc.
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21. What are punitive damages?

Punitive damages are sometimes allowed under the law and are designed to punish the defendant and to deter the defendant and others like them from similar conduct in the future.
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22. What is tort reform?

Tort reform is a name given to efforts made by certain people or groups to limit the rights of injured parties to recover for their losses. It can take many forms including placing legislative caps on damages, modifying rules concerning the location of lawsuits and other efforts.
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23. Do I need a legal specialist for my type of injury?

Many cases involve issues that are very unique and are better served by lawyers who frequently do that type of work. For example, product liability and medical negligence cases are often best handled by a lawyer with experience in those areas.

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