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It happens to everyone at least once in their lives. You are involved in an automobile accident, have a dispute with the other party to the contract you signed, or see that a competitor’s business is using “your” slogan and marketing color scheme.

When such situations are not resolved with your phone calls and letters, the next step is litigation, as defined by Webster: “the act or process of carrying on a lawsuit in a court of law or equity.”  Occasionally the case comes quickly to a conclusion.   More often it takes many months for the parties to air out their expectations and different views of the facts and to appreciate the strengths and weaknesses of their case and the opponent’s case.   Most cases ultimately result in some compromise reflecting the shades of gray that most cases involve.  Other cases require a “day in court,” with resolution by a neutral and unbiased judge or jury, who do their best to give “justice” within the rules of law to two sides who BOTH believe they ought to prevail.

Litigators – lawyers who concentrate their practice in trial and appellate case development and presentation – have a sometimes schizophrenic job.  On the one hand, we zealously act as advocates for your point of view in arguing with opposing counsel, or presenting your view of the facts and law to a judge.  But in the privacy of an office conference or telephone call with you, it is equally our responsibility to point out any weaknesses or flaws in your case, and to think creatively of solutions by which a dispute might be resolved in a manner satisfactory to all sides.  As more than one judicial observer has put it: “a good settlement is one in which the parties reach mutually agreeable levels of dissatisfaction with the outcome.”

Here are answers to a few questions frequently asked of our litigators.

Q.  Can you make the other side pay for my attorney’s fees?

 A.  Only in a few situations.  In the United States, we do not have a “loser pays” rule to shift the fees in most cases.  Each party generally must bear his or her own costs and expenses.  The exceptions are those contract disputes where the contract itself provides for attorney’s fees, or situations (such as most civil rights and consumer protection-type claims) where a statute of Congress or the New York Legislature specifically authorizes payment of attorney’s fees to the prevailing party.

Q.  How long will a lawsuit take, and why does it take so long?

 A.  The time frames vary greatly and depend on a number of factors, including: the complexity of the legal and factual issues, the contentiousness of the parties and opposing counsel, time constraints imposed by the conflicting schedules of lawyers and witnesses, and court dockets.  Very seldom does a lawyer have the luxury of working on only one case, so there is constant adjustment of schedules and priorities.  In addition, courts which have both criminal and civil case responsibilities must give priority to criminal cases, which carry certain due process and speedy trial requirements under the Constitution.

 Q.  What’s the difference between a civil and a criminal case?

 A.  A civil dispute involves two or more private parties (“Plaintiff v. Defendant”), and the relief granted is typically in the form of a monetary payment, or a court order mandating or prohibiting a particular course of action.  Each party has its own lawyer. A criminal case (“People of the State of New York v. Defendant”) attempts to vindicate the interest of the community at large by punishing illegal conduct through a fine, probation or imprisonment.  The District Attorney represents the “People,” and a private attorney or public defender represents the defendant.

Q.  How does the “no-fault” law affect my claim if I’m in an auto accident?

 A.  Under New York’s “no-fault” statute, your medical expenses and lost wages (subject to various limits and priorities) are covered and paid by your own car insurance company, or by the driver’s insurance company when you are a passenger or pedestrian.  This compensation is to be paid regardless of whose fault the accident was – hence the name “no-fault.”

If another driver is at fault in causing the accident and your injuries, you may also have a claim for monetary compensation against that driver for your “pain and suffering” (often referred to as “non-economic loss”) – but only in cases where you suffer a “serious injury,” as that term of art has come to be defined.  Certain types of injuries are automatic qualifiers as “serious injury,” including any fracture, significant disfigurement, or death.  Other types of injuries may also qualify if there is permanent impairment or disability, a “significant limitation” of use of a body function or system, or disability from work and normal activities for over 90 days.

The no-fault law was designed to weed out of the system claims for “insignificant” injuries, such as bumps and bruises, temporary whiplash, and ordinary emotional upset that accompanies any disruptive event such as an accident.  In practice, we face many thorny and “unfair” issues in this area, such as: the back or neck pain that lingers and debilitates, but which health care professionals cannot conclusively label.

In situations where you have a qualifying serious injury, we typically seek damages for your pain and suffering first through negotiations with the insurance company, and if necessary, through a lawsuit in the appropriate court.

The “no-fault” law has no application to the collision claim portion of your accident.  Whoever is at fault (either as total or shared responsibility) must pay the fair market value of the loss, along with reasonable incidental charges such as towing, storage, and substitute car rental.  If you have collision coverage on your own car, the process of allocating final financial accountability to others is usually handled by your own company, after paying you for your loss.

McConville, Considine handles a wide variety of civil litigation matters.  Please contact Kevin Cooman, Peter Weishaar or Peter Gregory with any litigation-related questions.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.