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CIVIL LITIGATION
It is an unfortunate truth of life in an
organized society that sometimes we cannot resolve our differences outside
of a courtroom. Mc Carthy & Modelewski has litigation experience
in all trial level Courts in New York, and the Appellate Division of
the Supreme Court. Some of the cases we have argued have been
covered in Newsday and The New York Law Journal, and reported
in official and unofficial law reporters (the books commonly seen in
law libraries which are being replaced by CD-ROM's and other electronic
information systems).
THE CIVIL
LAWSUIT
In New York the civil lawsuit is commenced in the Supreme
Court (New York's trial level Court of statewide jurisdiction) by filing
a Summons with the Clerk of the Court. The Summons tells the defendant
to come to Court. A Complaint ordinarily accompanies the Summons,
and gives information, in the form of allegations, about the nature
of the dispute. The Summons and Complaint are then served on the
defendant. Thereafter the defendant will file and serve an Answer to
the Complaint, or make a motion (a written request supported by evidence
and legal arguments) asking for some relief (it could be dismissal)
from the Court. There are no secrets in a civil lawsuit, and the
parties are obliged to exchange names of witnesses, relevant documents,
and the identity of experts who may testify at trial, among other disclosures.
In addition, the parties can be compelled to give sworn testimony before
trial in a proceeding known as a deposition or "EBT" (examination before
trial). This entire process is commonly known as discovery, or
in New York, disclosure.
Upon the exchange of discovery, either party is free to
make a motion requesting that the dispute be settled by a judge based
on the law and the uncontroverted facts. This is called Summary
Judgment. The gist of a Summary Judgment motion is that there
are no disputed facts crucial to the case, and that the application
of the law to the facts should compel a decision, without a trial, in
favor of one party or the other. If such a motion is unsuccessful,
or if not attempted, the matter should be placed on the trial calendar
to await jury selection and assignment to a Judge for trial.
THE TRIAL
For a practicing attorney, the end of a trial is really
where it begins. Summation is a powerful tool, allowing the trial
attorney, for the first time in the trial, to use the ultimate weapon--argument.
Summation enjoys a certain reputation in our popular culture as the
very essence of lawyering. A stirring summation can sometimes win a
close case; and it can be entirely entertaining to observe a gifted
advocate deliver a brilliant summation. However, the summation
should be pondered and planned long before a lawsuit reaches the trial
stage. More important than dramatic content, the summation must
be complete and thoughtful; and should highlight the best parts of a
litigant's case. All of the evidence, including testimony, documents,
or objects necessary to prove a case must be properly introduced according
to the rules of evidence at trial. Without everything in place,
there can be no summation. The law allows "fair comment"
(which is really argument and persuasion) in summation, on evidence
properly before the Court and Jury. Hours, days and weeks of painstaking
preparation are often necessary to ensure that the evidence necessary
to support the case will be properly before the Court and Jury.
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