Advisory to the Pro Se Litigant #13: Avoiding Trial When One Can Win -- As a Matter of Law

What if the facts discovered in discovery make it clear I should win, can I avoid a trial? Yes, it’s time to consider a Motion for Summary Judgment. There are certain occasions during the proceedings when a party may request that the court either dismiss the case or summarily rule in its favor, without letting the case proceed to trial. There are generally two situations in which this may arise. First, as discussed above, after the complaint is first filed, a defendant may file a “Motion to Dismiss.” After “discovery” occurs, either party may file a “motion for summary judgment.” A motion for summary judgment is a request by one party to the court to rule “summarily” in its favor. A party is entitled to summary judgment if it can show that there is no reasonable way that the opposing party could win. Maryland Circuit Court Rule 2-501(a) states: “Any party may make a motion for summary judgment on all or part of an action on the ground that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law…” This means that to win on summary judgment, the moving party must show that even if all the facts are viewed in the light most favorable to the opposing party, there is no reasonable way a fact-finder, such as a jury, would rule in favor of the opposing party. For instance, let’s say you are being sued for damages caused by a hit-and-run accident, but you have uncontroversial proof that you and your vehicle were in a different state on the date of the hit and run, and it seems as the injured party does not have contrary evidence to explain why he or she thinks you are the party at fault. In that situation, a motion for summary judgment would be appropriate, because there is no genuine dispute as to ant material fact, thus you are entitled to summary judgment as a matter of law.

North Hastings Latest to Benefit From Good Legal Help

I am now impressed by the Community Advocacy and Legal Clinic in North Hastings in Ontario, Canada. They have just announced they are holding a trial drop-in legal clinic tailored toward providing legal advice to members of rural communities. Issues covered will include diverse issues like tenant rights, workplace safety, and assistance obtaining public benefits. If I am understanding correctly, the CALC hopes to hold special education sessions in particular neighborhoods to benefit unique needs, such as needs of individuals in particular professions. As this is a new project, it is hard to know precisely where this will go, but I am eager to continue hearing about projects which increases the knowledge of the citizenry and decreases the barriers of access to the legal community by members of the general public.

Advisory to the Pro Se Litigant #12: Yes, You Have A Right to Resolve Your Case

A Response to two questions I have received:

 1. Even though suit has been filed, are the parties allowed to resolve the claims at issue through negotiation or mediation?

Yes, parties are always allowed to settle their disputes.

At any point in the litigation, the parties retain the right to resolve the differences that gave rise to the litigation. When parties agree to the terms of a case resolution, they usually draft a contract that identifies the terms of the resolution, thereby ending the existing litigation.

The benefits to settlement include: for the plaintiff, receiving specific remedies over the possibility that the court might not award any remedies; for the defendant, giving specific remedies over the possibility that the court might award damages of a far greater amount. In other words, as there is no guarantee that a judge or jury will see things as you do, if you can agree on a settlement that you are happy with, courts are likely to approve it. As for what is reasonable, you are encouraged to speak with an attorney knowledgeable in the field of your dispute.

 2. The opposing party has provided me a proposed settlement which requires me to release my claims. Can I sign this now and bring up the case when I get new information? 

 Generally, No.

The purpose of a settlement agreement is to resolve, or agree not to further pursue, each and every legal issue that would have been raised at trial or resolved by the court in the case at hand. It should be pointed out that a settlement does not forever bar the parties from litigating issues that arise subsequent to the settlement, or as the result of a settlement. For instance, a dispute concerning how to interpret the settlement documents or how to apply it is a given circumstance would not be barred by a settlement agreement. Also, as a settlement agreement in a contract, if a party violates that agreement, the other party has a right to seek remedies for non-compliance with the contract.

Advisory to the Pro Se Litigant #11: Discovery: The Process to Obtain Information from the Other Side

Each civil court system in this country provides each party with the opportunity to exchange information prior to trial. The process is called “discovery” because each party is allowed to “discover” what information the other parties have. After the complaint is answered, the court will likely issue a scheduling order dictating when discovery must be completed. There are five standard forms of discovery, namely, (1) interrogatories, (2) document requests, (3) depositions, (4) Requests for Admissions, and , (5) mental or physical examinations. Interrogatories are written question directed by one party to another regarding information that is relevant to the subject matter involved in the litigation. Document Requests are requests to another party to make available for viewing tangible items that are in their possession, custody or control. Although not necessarily mandatory, most responding attorneys make copies of responsive documents and provide the copies to the requesting parties. Depositions are oral or written examinations before a court reporter. Typically, a party or his or her attorney asks questions to the other party’s witnesses concerning the subject matter of the litigation. Be advised that there are specific rules concerning where, when, and for how long these depositions may occur. Mental or physical examinations are appropriate only when the mental or physical condition of a person is at issue. For instance, if you allege physical harm or medically cognizable emotional damages, a judge is likely to allow your opponent to require appropriate examinations to determine if the harm you are experiencing is caused by the alleged infraction. Note: Discovery in District Court is limited in contrast with discovery in Circuit Court. In fact, in many district court cases, no discovery is taken, even if it is permissible.

Advisory to the Pro Se Litigant #10: Take Inititive;Court's Failure to Issue Summons No Excuse

A recent (December 15, 2010) decision by the United States Court of Appeals for the Eighth Circuit should serve as an important warning to pro se and represented plaintiffs: take initiative; if you need a document from the court, ask for it! In Kurka v. Iowa County, Kurka had filed suit but the district court did not issue Kurka a summons to serve on the defendant. The Federal Rule of Civil Procedure #4 requires a plaintiff to serve a complaint and summons within 120 days of the filing of the complaint. As no summons was issued, Kurka could not serve the complaint. However, Kurka took no steps within the 120 days to request or push the Court to issue the summons for service. Instead, Kurka contacted the Court to issue the summons after the expiration of the 120 day period, and filed a motion to enlarge the time within which Kurka be permitted to serve the complaint. The district court denied Kurka's motion, and the appellate court (Eighth Circuit) did not overturn. According to the Eighth Circuit, "the district court found the clerk's error was not good cause for Kurka's extended inaction." In other words, although Kurka did not have a summons to serve within the period the law provides for him to serve the summons, he also did not take proactive steps to remedy the situation, such as request the summons or serve the complaint without the summons form. It is only fair to recognize that in this particular decision, the district court was influenced by the plaintiff's eventual counsel's lack of credibility It is possible that a different plaintiff-plaintiff's counsel team might have fared better in this court. However, in so far as we read court decisions to influence our practice or actions, this case is an important warning to comply with deadlines before us to and to proactively seek documents from the court if we require them to take action, such as is the case when we need a summons from the court to proceed with the case. I am certain that if the plaintiff had made a record of efforts to request the summons from the court within the 120 days, or had made efforts to serve the complaint itself even though the summons was not available, the court might have ruled differently. However, here, the plaintiff took no proactive action within the 120 days. Hence, our lesson: take necessary steps to progress the case.