General Legal Questions

What is litigation?

A controversy before a court or a “lawsuit” is commonly referred to as litigation. If it is not settled by agreement between the parties it would eventually be heard and decided by a judge or jury in a court. Litigation is one way that people and companies resolve disputes arising out of an

I want to file a lawsuit. What is the first step?

The first step in filing a lawsuit should be selecting and meeting with an attorney to prepare the lawsuit. The attorney will be important your lawsuit because he or she will assist you in investigating the case, determining what parties may be liable to you, and selecting the theories of liability that will be included in the lawsuit. Once this process is complete, the attorney will then file a complaint in court. The complaint will name you as a plaintiff and the parties that are allegedly at fault as defendants. The complaint will state the facts of your claim and legal theories of liability you are pursuing.

How much will it cost to hire an attorney?

Every attorney is free to set his or her own billing method, and before you hire a lawyer, it is very important to understand how the attorney charges. There are many different types of billing methods, including:

  1. Contingency fees where you only pay the attorney if you win the case. However, you are still required to pay court costs and other expenses.
  2. Flat one-time fees
  3. Hourly fee

Usually the attorney will determine which method is best by the type of litigation in question.

Should I tell my lawyer everything even if some of it may hurt my case?

After you have retained a lawyer, your conversations with your lawyer are protected under the attorney-client privilege. No one can put your lawyer on the stand and make him or her testify as to what you have told them. You should note that initial consultations with a lawyer are not generally considered protected by the attorney-client privilege.

What do I do if I am served with a complaint?

You should seek the advice of an attorney immediately. You will have a certain time in which to answer the complaint. If the time period elapses prior to your filing an answer, you will potentially be in default and automatically lose the case.

What are the differences between a criminal case and a civil case?

Our legal system recognizes two different kinds of legal cases: civil and criminal. A civil case is one in which a person who has a complaint may bring a legal action to protect his or her interests or collect money damages. The person claiming relief is generally referred to as a plaintiff, petitioner, or complainant. The person against whom relief is sought is called a defendant or respondent. In a criminal case, the federal, state, or municipal government brings the action in the name of its citizens against a defendant who has been accused of committing a crime. The citizens are represented by a prosecuting attorney such as the local county District Attorney General, the Attorney General for the State of Tennessee, or the United States Attorney General.

In a criminal case, the defendant is charged with a crime against society such as murder, burglary, robbery, or theft. The legal action is initiated by the prosecutor who decides whether to bring charges and what charges to bring. In a criminal trial, a prosecutor must prove the defendant's guilt beyond a reasonable doubt. While this does not mean proof beyond all possible doubt, it is a heavier burden of proof than is required to prove liability than in civil cases.

In a civil case, it is the individual who feels wronged or injured (the plaintiff) who decides whether to file a civil suit. When damages are sought, the plaintiff decides how much to demand in damages, although the judge or jury will decide whether and how much a plaintiff can recover. In a civil case, the plaintiff cannot seek to have a defendant jailed unless the defendant has violated a court order.

How do I commence a civil lawsuit in Tennessee?

A civil lawsuit is commenced when a plaintiff files a complaint and serves a complaint and a summons upon the defendant. The complaint is the legal document that sets forth the alleged misconduct by the defendant. The summons is the legal document that directs the defendant to appear before the court.

How do I prepare for a visit to a lawyer’s office?

When you make your appointment, ask the lawyer some questions such as what papers he or she needs you to bring, whether you should be prepared to pay a retainer or filing fee, and whether you should bring anyone with you. Be prepared to briefly outline your problem for the lawyer. Write down some questions before you visit the lawyer so that you will not forget to ask something important.

How do I choose an attorney?

Choosing an attorney should be done very carefully with much thought. You will work with an attorney closely during your case and you want to be sure that the attorney is someone with whom you will be comfortable working. You should take the time to find out about the attorney as a professional and as a person. Most importantly, you need to select an attorney who is well qualified to handle the issues involved in your case. Many lawyers specialize or limit their areas of practice. It is important to find a lawyer whose practice specializes in the area involving your legal claims. Ask the lawyers about their experience in this field.

Click here to find an attorney in the area by practice specialties

What is a contingency fee?

A contingency fee sets the amount of the fee dependent upon the result obtained in terms of compensation to you. A contingency fee is a percentage of the total recovery in the case. If you do not recovery any money in the case, then the attorney’s fee is zero. Note that even if there is no recovery in a case, you may still be responsible for certain expenses incurred in prosecuting your case and court costs. The contingency fee allows people with insufficient funds to hire an attorney who does not work on an hourly fee, and receive access to the courts.

I’ve been subpoenaed for a deposition. What is it and what do I do?

In most civil actions, both parties have the right to engage in "discovery" to gather facts from the other party, and sometimes from third-party witnesses. A deposition is a type of discovery in which a lawyer for a party to the lawsuit asks you questions and takes your sworn testimony. The purpose of a deposition is to gather background and evidence and establish the stories of the parties and the witness. At the deposition you will be put under oath, just as you would be in a court, and a lawyer can ask you a wide range of questions relating to the case. The lawyer's questions, and your answers, will be taken down by a court reporter, and possibly be tape recorded and/or video taped.

Your deposition, when properly handled, can be an important part of assisting your lawyer in the litigation, either by way of settlement or at the trial. What you do at the deposition can help you or hurt you, depending upon your attitude, truthfulness and appearance.

Deposition Tips

  1. You have the right to have your lawyer present at the deposition, and you definitely should. Your lawyer will help you protect your interests.
  2. Your lawyer should spend time reviewing the facts with you and preparing you to give a deposition.
  3. Listen carefully to each question and then answer it.
  4. Do not volunteer any information outside of the question asked or raise other issues.
  5. If you do not understand the question, ask for it to be restated. Your lawyer may object to questions that are vague, improper, misleading, or if they do not relate to the specific case.
  6. Your lawyer will prevent the other side from using the deposition to harass you.
  7. At the end of the questioning by the other side, your lawyer can ask you questions that may clarify or better present your side of the story.

After the deposition is over, the court reporter will type out the transcript of the questions and answers, and all parties will receive copies. Unless your lawyer has waived this right, you will have the opportunity to review the transcript of your testimony and make corrections, but generally the reporter's word will prevail. The original copy of your deposition transcript may be filed with the court, and become a public record, depending on the rules of the court or state.

How long before the lawsuit will be finished?

There is no way of knowing how long a lawsuit will last. Some lawsuits are resolved or dismissed very quickly, while some take many years to complete. After the pleadings (complaint and answer) have been served, there is a discovery process. This is the period when the parties obtain all of the facts of the case. The length of this process depends on the complexity of the case. The overwhelming majority of all cases are settled long before trial.

What is a subpoena?

A subpoena is a written court order requiring the attendance of the person named in the subpoena at a specified time and place for the purpose of being questioned under oath concerning a particular matter which is the subject of an investigation, proceeding, or lawsuit. A subpoena is issued by someone authorized by law, usually by the attorney for a party to a lawsuit, but very often issued by someone authorized to conduct an investigation such as the State Attorney General or local District Attorney.

In addition to requiring the attendance of a person, a subpoena may also require the production of a paper, document, or other object relevant to the particular investigation, proceeding, or lawsuit. Usually a subpoena directs the person named to appear and give testimony in open court. However, certain subpoenas require the person to appear before a person or tribunal other than a court, such as a grand jury.

A subpoena will identify the person who issued the subpoena as well as the general nature of the proceeding to which it relates, although not necessarily the precise subject matter of the proceeding. If you are served with a subpoena, you cannot ignore it. If you do, you risk being held in contempt of court, even if the subpoena was not signed by a judge.

When you are served with a subpoena, you must do one of two things. You must either comply with the subpoena or, if you have an objection, you must apply to the proper court for permission to vacate or modify the subpoena. Such an application would ordinarily require the services of an attorney.

In considering what to do if you are served with a subpoena, you should keep two things in mind. First, if you feel that you may be a target of a criminal investigation or that your testimony may implicate you in criminal activity, however remote, you should immediately consult an attorney. Second, if there is any question in your mind about the validity of the subpoena, you should consider challenging the subpoena by applying to the proper court before you appear at the time and place designated by the subpoena.

If your only objection to the subpoena is that it may be difficult or impossible for you to appear at the time and place indicated, you should contact the attorney or person who issued the subpoena. Usually that person's name, address, and telephone number will appear at the bottom of the subpoena. It may be possible to postpone your appearance or to arrange a more convenient time for you to appear. If other arrangements cannot be made, or your appearance will jeopardize your health or your employment, you should seek the services of an attorney.

DISCLAIMER: The above information available through www.jacksonmadisonbar.org is basic legal information and is neither intended as legal advice, nor a substitute for legal advice. No attorney-client relationship is created herein. The content on www.jacksonmadisonbar.org is provided by the Jackson-Madison County Bar Association as a public service and for general information only. You should consult your attorney if you have questions concerning any specific situation. If you do not have an attorney, may we suggest that you visit our (Need a Lawyer search our Lawyers by Practice Area) section or find a lawyer in the phone book. The topics covered through www.jacksonmadisonbar.org will provide basic information and should make it easier for someone with a problem to decide whether they need professional help from a lawyer or if another agency could provide them with assistance.

A special thanks to the Memphis Bar Association for its contributions and assistance to the Jackson-Madison County Bar Association in making available this legal information. Portions of the foregoing content have been reprinted with the permission of the Memphis Bar Association. www.memphisbar.org.