I Responded; Now What?

Our previous blog, “So You Just Got Sued, Now What“, discussed the importance of filing an Answer to a Complaint if you’ve been sued in a timely manner.  But what happens after that? 

Discovery

In order to prove their case, one side might need documents in the other’s possession, or might need a witness to testify under oath regarding the circumstances at issue.  Discovery is an evidence-gathering process for the parties.  You can ask for the other party to produce documents relevant to the issues in the case, answer relevant questions under oath in writing, admit certain relevant facts, or sit for a deposition to be questioned in person under oath.

Each cause of action has elements that must be proven, and your discovery should generally be focused to proving the elements of the causes of action or defenses alleged.  The discovery process can be complex, and it is best to hire an attorney for this process because they will be aware of the causes of action or defenses involved and the elements that need to be proven.

One of the differences between the Small Claims Rules and the Florida Rules of Civil Procedure is the discovery process.  An opposing party represented by an attorney may not entitled to discovery from an unrepresented party under the Small Claims Rules and this may be a consideration when deciding whether you should move to invoke the Rules of Civil Procedure in a Small Claims action or agree to the other party’s request to invoke them. 

Invoking the Rules of Civil Procedure

If you are bringing or defending a Small Claims lawsuit, you may be asked to stipulate (or agree) to invoking the Rules of Civil Procedure.  If you are not sure of the differences between both sets of rules, it may not be to your benefit to agree to this.

Mediation

Before the case goes to trial, most jurisdictions have a process by which the parties sit down, negotiate, and attempt to resolve their differences.  This is called mediation, and it is, for all intents and purposes, mandatory in some form or another for most types of cases.  In mediation, the parties sit down to discuss the claim(s) with a neutral third party, called a mediator, who will attempt to help the parties come to a resolution.  Over 90% of cases settle out of court AND a 2008 study showed that parties who settle get better results.  Mediation is confidential, so the parties cannot disclose anything that happened in mediation.  That allows the parties to talk openly and honestly about the issues without worrying their frank discussion will be used against them if the case goes to trial. 

If the parties come to an agreement, the mediator will write it down in a contract called a stipulation, which both parties will sign and agree to obey.  This is a binding contract and can be enforced by the court if one of the parties does not comply.

What if mediation doesn’t work?

If the parties do not come to an agreement during mediation, this is called an “impasse.”  If the parties declare an impasse, the case will go to trial.  In civil cases, this will not usually be a jury trial, like most people are familiar with on television, unless one or both parties made demand for a jury trial.  Your trial will more than likely be a non-jury or “bench” trial heard only by a judge.