General Civil Litigation in Monroe, GA
Experienced Legal Counsel in Your Civil Case.
Here at Foster, Hanks, & Ballard we represent and advise clients who are, or might become, involved in a lawsuit or appeal as a result of a dispute. We counsel clients on the practical aspects of litigating claims, including the use of mediation, arbitration, and other alternative dispute resolution methods. We also assist clients in assessing their risk of litigation and in constructing strategies to reduce or eliminate that risk. We are often retained before a lawsuit is filed to help force a resolution without the need for expensive and time-consuming litigation. Our business litigation practice is focused primarily on disputes involving a breach of contract, fraud, breach of fiduciary duty, and insurance coverage disputes.
What is General Civil Law?
General or Common Law refers to non-criminal legal cases, which means that most everything that isn’t prosecutorial law falls under General Civil Law. This includes, but is not limited to the following:
- Tenant/Landlord Disputes
- Real Estate Disputes (title to land or boundary line issues)
- Contract Disputes
- Enforcement of promissory notes or loans
- Damage to personal property
- Defective products, defective repairs or deficient workmanship
- Appeals from State administrative decisions (such as worker’s compensation or
- Nuisance issues (neighbors not complying with zoning or deed restrictions, or
- causing excess water runoff, or other damage to surrounding property owners
Civil Law conflicts are between businesses, institutions, or people; oftentimes civil law disputes arise because of money. The party that files a formal complaint with the court is considered the plaintiff, while the party that harmed the plaintiff is known as the defendant. The plaintiff may petition the Court to:
Financial Compensation, otherwise known as damages, may be awarded to the plaintiff if their legal counsel is able to prove that they have suffered monetary hardship in direct correlation to the actions of the defense.
A declaratory judgment is when the Court determines who is right or wrong under a statute or contract. Money is not awarded, and a sentence is not given in these types of cases.
Impose an Injunction:
When a plaintiff seeks an injunction, they are asking the Court to prevent the defendant from doing something; it can also mean that the Court is requiring the defense to do something, like making restitution against the plaintiff.
It is possible and preferable for a civil law case to be resolved by the two parties themselves. At any point during the case, if both parties want to agree on how to end their dispute, they will file a settlement that lays out the terms both parties have deemed satisfactory. If a settlement is never reached and the court case progresses, the judge or jury, will resolve the case and implement the appropriate law to the facts presented during the case.
What are the different kinds of cases seen in Civil Court?
There are a wide variety of cases that are seen in Civil Court. Here are some broad examples of some legal issues that end up in Civil Court:
Sometimes called a tortious, a tort claim is an unlawful act that causes injury to a person, reputation, property, or something similar, and where the injured party is entitled to compensation. Examples of tort claims are fraud, negligence, defamation, assault, or medical malfeasance.
When a dispute arises between a tenant and their landlord, civil courts handle those claims. An example would be if a tenant is choosing to sue because they never received their security deposit after they moved out, or if the landlord is trying to evict their tenant due to poor maintenance of the rental property.
An equitable claim is when the court orders one of two things: to cease some action or to act on behalf of the plaintiff. These court demands may or may not be accompanied by a claim for damages (financial restitution on behalf of plaintiff). Improperly transferring land or seeking out a temporary restraining order to stop unwanted behavior are examples of equitable claims.
Breach of Contract:
When someone does not fulfill a term of their written or oral contract without a legitimate legal excuse, that is considered a breach of contract and is heard in civil court. If a contractor doesn’t complete a job, or a tenant doesn’t pay rent at all or on time, or if a product is not delivered as promised, these are all breaches of contract.
What is the role of an attorney?
A lawyer, sometimes called an attorney at law, counselor, or esquire, is a person who has spent several years (usually seven or eight) studying constitutional and criminal law, civil procedure, contracts, torts, and both State & Federal Statutes. Lawyers have passed their State’s Bar examination in order to obtain a valid license to practice law in the State where they reside. Attorneys are considered officers of the Court, and as such, they are responsible for representing their client in court; above all else, lawyers serve their client and their client’s legal interests; therefore, attorney-client-privilege is a vital component of the client/counsel relationship. Lawyers are not just needed to help their clients navigate the laws associated as they pertain to the case to settle a dispute; they are the spokesperson for their clients in court. The fact that attorneys are a third party to the conflict means they are able to communicate without emotion and with an expert understanding of legal knowledge that can help get their client off.
As it states in the bar exam that all lawyers must pass, the duty of an attorney at law is to zealously represent a client’s position or interests which means sometimes the lawyer will have to take on opposing counsel; a good lawyer knows that interactions with the opposition must stay respectful and professional, but that doesn’t mean they shouldn’t confront opposing counsel with passionate tenacity. This adversarial role usually only comes into play in the courtroom or during the pre-trial process. When a lawyer is called upon to draft a will, mediate a divorce proceeding, or evaluate a contract, they act as counselor to their clients; this means they work with their clients and provide practical legal advice to achieve the goal. If both parties of a dispute want to find a way to settle their argument, an attorney will then act as a negotiator, communicating with both sides in order to best settle the conflict; this is a difficult job requiring mountains of patience and experience and a deep understanding of interpersonal communication.
Finally, to maintain honesty and integrity throughout a case, an attorney may refuse to work on your case if:
- they have represented the other involved party in a past case, which would indicate that they possess confidential information that could negatively influence their actions and interest
- they are currently representing the other involved party, and the situation is not tenable for one legal counselor to represent both parties simultaneously
- the interests of the lawyer differ with that of the client, rendering the counselor unfit to be the client’s legal representativ
An attorney should always be acting in their client’s best interest, executing necessary legal procedures with professionalism, attention to detail, and a honed skill.
What are the stages of a Civil Case?
In most situations, civil litigation cases are broken down into several phases, most of which occur before the trial; the purpose of these pre-trial stages was established to help ensure a smooth trial. The phases are as follows:
This stage occurs after a dispute has arisen but before any paperwork has been filed with the Courts. Both parties will have made their demands, and depending on the situation, the attorneys of both parties will work towards negotiating a resolution outside of court. If a resolution is unable to be reached, this is also the time when lawyers will start preparing their clients for potential court proceedings.
At the point of an initial pleading, one party has filed the necessary legal paperwork with the help of their legal counsel, referred to as a formal complaint, which starts the ball rolling for a lawsuit. The purpose of a complaint is to identify both parties (the plaintiff will be the party who filed the complaint, the defendant will be served the complaint), define the reason the plaintiff filed a complaint, and clearly determine the kind of relief that the plaintiff is seeking. The defending party may receive a complaint accompanied by a summons, which is a written notice alerting them to the filed complaint and lets them know the date of the first required court appearance for the lawsuit. At this time, the defending party has the right to respond by filing either a formal motion or an answer. If the defendant chooses to file an answer, they will submit a written account that includes their version of the events that lead to the lawsuit; the answer may also include one of two defenses that the defendant can offer as a response:
- Affirmative Defenses: If the defendant has already settled this dispute in the past, or if they feel the statute of limitations has run out in relation to the filed complaint, those are defenses that the defendant need to prove in order to have the complaint dropped.
- Rule 12(b) Defenses: These kinds of defenses are different from affirmative defenses because the burden of proof falls to the plaintiff. Examples of rule 12(b) defenses are:
- failure to state a claim
- lack of jurisdiction over the subject matter
- failure to join one of the necessary parties of the lawsuit
- lack of personal jurisdiction
If the defendant chooses to file a motion with the court, they are usually seeking a motion to dismiss the case or to have the complaint revised in a totally different manner.
The pre-trial process really starts with Discovery; the case and it’s facts are investigated from either party’s perspective. The evidence gathered is shared with the opposing party along with other discovery devices, such as:
- Requests for Admissions: A request for admission is just that; a request to admit that you are at fault for certain aspects of the case. This may seem a bit redundant since the formal complaint, which initiated the lawsuit, already asked both parties to submit responses to the allegations listed in said complaint. The request for admissions allows either party to investigate further on issues involved in the case beyond stating a cause of action. For example, if someone is in a car accident, your lawyer may send a request for admission that asks the opposing party questions about specific aspects of the wreck that could prove to put liability on their shoulders.
- Depositions: Before a case goes to trial, lawyers for both or all parties involved will host a deposition at their office. A court reporter is required to be there to record the testimonies that are given under oath. Since there is no judge present to rule on any objections during the time of the testimonies, the court reporter just records everything and if either party’s counsel has an issue with the line of questioning, it is dealt with in court. The Deposition is a complex process made easier by an experienced legal counselor.
- Interrogatories: Although interrogatories are a list of questions that are submitted to the opposing party just like requests for admissions does, interrogatories differ in the fact that the questions asked are more open-ended. If you and your attorney need to know what evidence the opposing party intends to rely on to support their claims, your lawyer will probably submit an interrogatory to opposing counsel asking for an itemized list of said pivotal evidence. Because the questions are open-ended, oftentimes interrogatories become complicated with parts and sub-parts; because of this, most States require a limit to the number of interrogatories each party may submit.
- Requests for Production: When it comes to obtaining evidence for a case, requests for production is one of the most valuable tools at a lawyer’s disposal since they allow either party to ask their opposing party to submit documents or other tangible items as evidence to the Court. This is how most of a case’s physical evidence is obtained.
- Post-Discovery/Pretrial: Once Discovery is completed, both parties start to prepare for trial; this is also the last chance for both or all parties to come to a settlement agreement before the trial process commences. Motions may be filed with the court during post-discovery; the various types of pretrial motions are as follows:
- Summary Judgment: If an attorney submits a summary judgment motion, that means the facts of a case are not disputed by either party, so they are asking the sitting judge to render a judgment without going through a full trial.
- Motion to Dismiss: When a lawyer files a motion to dismiss, it is because the case is either lacking evidence or jurisdiction, or the involved parties were able to come to a settlement agreement.
- Motion to Change Venue: If a case’s jury pool could hold prejudice against either involved party, legal counsel could submit a motion for a change of venue. Often, this kind of motion pertains to high profile cases.
- Motion for the Release of Evidence: When there may be pertinent material evidence that is held which could be of importance to the case, an attorney may file a motion to have said evidence released so that it may be admissible during the trial process.
- Exclusion of Witness Testimony: Since lawyers don’t have grounds to object to witness testimony during the Discovery stage of the lawsuit, they may file an exclusion of testimony motion during pretrial. Usually, this is because the witness is either incompetent, unreliable, or has a conflict of interest with either party involved in the case.
- Exclusion of Physical Evidence: If either party’s legal counsel feels that evidence has been obtained illegally or outside of the scope of the issued search warrant, they have the right to file a motion to have those pieces of evidence released or removed from the trial
Once the case has moved to the trial stage, a court date and judge has been assigned to the case, and jury members have been selected if the case calls for such. How long the trial lasts is determined by the specifics and complexity of the case, meaning that some trials last hours while other may last weeks, months, and with some cases, years. The judge or jury will make a ruling in favor of either the plaintiff or the defendant.
Once the judge or jury have made a ruling judgment, the losing party may decide to file an appeal on said judgment during the post-trial period. This is also the point when the victorious party would collect any monetary judgments that have been awarded to them.
Although these phases of civil litigation are standard, it doesn’t mean every civil case will follow this protocol exactly. Summary eviction cases, for example, have their own unique stages that must be followed as stated in the State’s governing statutes or court rules; this is why making sure you obtain experienced legal counsel is so important, even outside of criminal cases.
What are the benefits of mediation?
There are several notable reasons people employ the use of the mediation process, the first of which is that a mediator acts as an independent neutral third-party who does not have any legal authority beyond giving involved parties the opportunity to work through issues, clarify any misunderstanding, and hopefully come to an agreement on certain areas of the case.
Along with providing this opportunity to communicate and potentially settle differences, the mediation process can:
Expedite Legal Process:
Often, lawsuits can take weeks, months, and in some cases, even years. By seeking Mediation, parties can instead expect to spend only a few days to a few weeks in the mediation process, meaning that everyone can resume normal life sooner rather than later.
Many times, issues that arise and lead to lawsuits can cause irreparable damage to both personal and business relationships due to their adversarial nature. Since mediation is a collaborative process without defined winners and losers, it can help preserve important relationships, and potentially improve future communications within those relationships.
Increase Flexibility & Control:
Once a lawsuit is filed, a judge is appointed to the case and a court date is chosen. If there are depositions, those are scheduled by the lawyer’s office, and the parties involved are at the mercy of the schedule of others. With mediation, both or all parties are in control of when and where their appointed mediator will meet with them. If the parties themselves are unable to make a mediation meeting, they have the ability to send a representative who has the authority to make legal decisions on their behalf. This allows the involved parties to save time and work the dispute around their schedule instead of the other way around.
Save Money & Energy:
Although many lawyers practice mediation, you are not billed nearly as heavily for hiring the services of a mediator as you would be if you had to hire an attorney for a lawsuit. Including the shorter duration along with the fact that there are no court fees to pay, Mediation can save you a lot of hard-earned money. Along with saving money, Mediation is also a far more relaxed and casual environment compared to the rule-driven court paperwork and procedure. This means that not only will both or all parties be more comfortable during the mediation process, but the mediator will be able to focus on the individual needs of the involved parties, instead of having to focus on sworn statements and submitted evidence.
Because Mediation is more relaxed, flexible, collaborative, and because no one is having to admit guilt or fault, parties can find more satisfactory solutions and agree upon the settlement mutually. This means happier people as well as a higher rate of settlement compliance.
Lawsuits become a part of public record once they are filed with the courts. With mediation, the confidentiality of the parties is respected through the absence of transcripts and the discretionary use of evidence.