What is “discovery” in a civil lawsuit?

Discovery takes place during the pre-trial process—the phase between when the plaintiff’s case is filed against the defendant and when the trial begins. In a civil lawsuit, the plaintiffs file their case because they believe the defendant has harmed them physically, financially, or otherwise. Civil cases are typically resolved through financial compensation and have a lower burden of proof than criminal cases. 

At its most basic, discovery is the formal process both sides go through to gather information about the case before a trial. Plaintiffs and defendants collect and exchange information and documents through a variety of discovery methods to flesh out their understanding of the case. 

Certain relevant information may be solely within the possession of the defendant and, therefore, unavailable to a plaintiff at the time their case is filed. As such, discovery is crucial to building a case. While discovery rules vary by jurisdiction, the process generally calls for the production of information about “any non-privileged matter that is relevant to any party’s claim or defense.” 

What is the purpose of discovery in a civil trial?

During this process, both sides of a litigation obtain discovery information before a trial and submit that evidence to a judge. But why does discovery matter? 

Discovery is permitted to help attorneys and judges: 

Set up a level playing field. While shock evidence may be common in TV crime dramas, real courts try their best to avoid surprises. Before the trial, both sides should know what evidence is going to be presented, so that they’re fully prepared with a response. Discovery helps prevent anyone from withholding evidence or witnesses from the court and seeks to ensure that both sides have the same information to work from. If both sides are fully equipped with the facts, they are better able to argue more specific legal issues in court. 

Establish the scope of the case. Attorneys will narrow down what a case is about and identify relevant facts, which can keep the process from dragging on. 

Resolve disputes. Discovery is a chance to learn more about your opponent’s case, which can help both parties decide whether they want to continue to trial or negotiate a settlement. 

Analyze applicable legal issues. Based on the facts uncovered during the discovery phase of litigation, attorneys on both sides will conduct in-depth research into the legal issues in question to help them argue their case. 

Streamline the trial. Trials are time-consuming. By establishing the facts of the case before entering the courtroom, plaintiffs and defendants can keep things moving during the trial phase. 

File motions. Motions are written submissions to the court asking the judge to rule on some aspect of the case. They can help attorneys get access to the information they need, narrow the focus of the case, or even dismiss the case entirely. 

Tools of the discovery process

Plaintiffs and defendants have a number of tools they can use to obtain information during discovery: 

Interrogatories

Interrogatories are written requests sent by one party to another asking for answers to specific case-related questions. While each state has individual rules, the number of questions is usually limited. Typically, interrogatories are used to obtain basic information, such as details on people, corporations, facts, witnesses, document locations, and records. The recipient is required to answer in writing and under oath. 

Depositions

Depositions are out-of-court testimony from a witness, taken under oath. They can help plaintiffs and defendants vet a potential trial witness and give counsel the chance to build their case around the testimony. 

Depositions can be written in certain circumstances, but they are almost always taken orally. Oral depositions are usually attended by the witness providing the deposition, attorneys from all parties, and the person administering the oaths and recording the testimony. All parties have a chance to question the witness in oral examination, and lawyers are not permitted to coach their clients. 

In most jurisdictions, information from an oral deposition is not directly admissible at trial, with three exceptions: if the witness admits something that goes against their interest; if the witness’s testimony at trial contradicts what they said in the deposition; or if the witness is unavailable at the trial. 

Requests for admission

In a request for admission, one party will ask the other party to admit or deny a fact—such as the truth of a statement—under oath. A discovery request typically consists of multiple statements that can be admitted or denied and is used to authenticate information and establish basic facts of the case. 

The information provided is binding, but requests for admission are typically not about proving guilt or liability. Instead, it helps the defendants and plaintiffs agree on certain basic facts (for example, their business addresses) so that they don’t need to be established during the trial. 

Requests for production of documents

This is the most common way to gain access to documents during discovery. One party will ask the other for copies or originals of certain documents or other physical evidence related to the case. Where disputes arise, the parties can ask the court to compel the other side to provide the requested materials, as long as they are related to the case and not privileged. 

In complex, multi-plaintiff litigations, the defendants’ document productions can be extremely large—requiring the plaintiffs’ attorneys to sift through tens of thousands if not millions of documents to find what they’re looking for. 

What information is available through discovery requests?

Any information related to the lawsuit can be obtained through discovery, unless it’s “privileged,” or legally protected. This information can include documents, business information, reports of conversations, witness details, and much more. 

However, several categories of information are protected from discovery. These include: 

• The attorney’s work product, or work prepared by a lawyer for litigation. 

• Confidential conversations between people with a privileged relationship—such as spouses, lawyers and clients, patients and doctors, and religious advisors and their advisees. 

Additionally, the court may prevent the parties from having to produce certain sensitive or private information, including: 

• Private matters that aren’t directly related to the case—for example, religion or sexual orientation. The implementation of this protection is controversial, however, and varies by state. 

• The private information of people who aren’t directly involved with the lawsuit, such as coworkers or family members. 

Depending on the subject of the litigation, the judge might enter a protective order to keep sensitive information that is produced to the parties in the litigation from being shared with non-parties or filed on the public record.

The role of an attorney in discovery

Discovery is one of the single most important aspects of the litigation process. It defines the terms of the case and sets both sides up for success—or failure. A good attorney will have a thorough and nuanced grasp of the full discovery process and will work together with the defendant and the court to make sure your case is on the best possible footing going into trial. 

A good plaintiff’s attorney will also be your advocate—which may include advising you to take a settlement before the trial process begins. Depending on the information gathered during discovery, both sides may agree that a settlement payout is a more effective remedy for the harm caused. 

Questions about what discovery means for your lawsuit? Reach out to our legal team at (312) 261-6193. With over 75 years of collective experience in personal injury, class action, and mass tort law, Wallace Miller attorneys are experts in the legal process from filing to resolution.

Waiting years for your case to resolve can be frustrating. Many mass tort, class action, and personal injury cases are time-consuming and can last years. Especially when you’ve already been waiting to seek justice, it can be difficult to deal with the delay. 

While the circumstances of specific cases have a large impact on their timeline, the overall litigation process is a lengthy one. Factors that generally impact the duration of the case included how complicated the legal issues are, the schedule of the court overseeing the litigation, and negotiations with the defendants’ lawyers. 

From discussing your potential case over the phone to making sure we get your compensation, the legal team at Wallace Miller is always working hard to move your case forward. We are committed to keeping our clients apprised of our progress through consistent updates and communication. If you have questions about your lawsuit, reach out directly to the paralegal on your case or call our main office at (312) 261-6193. 

What is civil litigation?

In a civil case, the plaintiffs allege that actions taken by the defendant harmed them financially, physically, or otherwise. The plaintiff is generally asking for a monetary award as compensation for their injuries or damages. Civil lawsuits include class actions, mass torts, personal injury lawsuits, and more. 

Civil cases can’t send the defendant to jail, and have a lower burden of proof than criminal cases. Rather than proving the crime beyond a reasonable doubt, in civil court, the plaintiff must provide a preponderance of evidence (meaning the allegation is more likely true than false) that the defendant is at fault. (Read more about plaintiff litigation and civil cases here.) 

Elements of a lawsuit

On its most basic level, a lawsuit consists of a plaintiff, who files a complaint claiming harm done by the defendant. That action launches the official court case. The plaintiff might ask for damages (monetary compensation), an injunction (for the defendant to stop or start doing something), or a declaratory judgment (a legal statement of the plaintiff’s rights). The final judgment is made by a judge or jury and may result in legal consequences. 

At any point in the litigation process, the parties can choose to resolve their dispute between themselves in a settlement. Trials are slow and expensive for everyone involved, and so judges often encourage the plaintiffs and defendants to reach a settlement. This can be faster, saves time and money, and may give both parties more control over the outcome (if the case goes to court, both sides are bound to abide by the judge’s decision). 

For these reasons, more than 90% of all legal cases end in settlement. However, it is your Constitutional right in the U.S. to request a jury trial (or waive your right to a jury and be heard by a judge). 

Stages of a litigation

Each court will have a different system of rules, which are further detailed by the judge overseeing the case. However, any given civil lawsuit will generally fall into the same overall process. 

The case timeline is partially determined by the judge. They will set the deadlines and timeframes for each stage of the litigation. Counsel on both sides will often request extensions to deadlines in order to gather more information, and it is up to the judge how much additional time is granted. 

At any point in the litigation process, the plaintiffs and defendants may choose to settle. Settlements are much more common than a case proceeding all the way to court. 

Before filing a suit

Several steps are taken by the plaintiffs and defendants before a lawsuit is filed. Both sides will gather preliminary information on the potential case and may attempt to negotiate a resolution. Plaintiffs’ attorneys may request medical records from plaintiffs’ medical providers in order to validate that they have a claim. 

This is a highly flexible phase of the litigation, as both parties gather information, and can take several months to complete. 

Filing a complaint

In an official pleading, one party (the plaintiff) files a complaint, and the other party (the defendant) files a response. The complaint from the plaintiff’s attorney will describe the damages and/or injury sustained, explain the alleged defendant responsibility, demonstrate why the specific court in which the plea is filed has jurisdiction, list the laws violated, and ask the court to resolve the issue. 

The defendant response usually takes the form of an “answer,” consisting of responses to the complaint’s assertions, or a “motion to dismiss,” which argues that the specified law wasn’t violated or the complaint has other fundamental problems (such as issues with the statute of limitations). If a motion to dismiss is granted to all claims, the case is over–although sometimes the plaintiff is permitted to file an amended complaint. 

This process typically takes a few months, but can run longer. Timelines for how long the plaintiff has to serve the complaint, and how long the defendant has to answer, will vary by state and court. If the litigation goes forward, the court will schedule a conference to establish a general timeline of discovery. 

Discovery and the pretrial process

During the discovery phase, both sides gather and exchange information and learn about the strengths and weaknesses of the case. They are legally required to provide information to each other with the goal of preventing any potential surprises at the trial. 

Information gathered may include records and documents, answers to written questions, statements from relevant parties, expert examinations, and depositions. Both sides will gather witnesses and file motions with the court attempting to narrow the issues at trial or resolve the case entirely. This stage often involves settlement discussions, as both sides attempt to come to an agreement before the trial. 

The discovery stage is time-consuming. In complex cases, both sides must sift through thousands—sometimes millions—of documents, determining what information they need, what information they don’t have, and what additional questions they want to ask. Often the deadlines will be extended in order to investigate unsolved questions or locate additional resources. 

Your day in court

Should the case make it to trial–rather than going into settlement negotiations between plaintiffs and defendants–the case will be heard by a judge and, in some cases, a jury. The evidence will be presented and witnesses brought by both sides will be examined. After deliberation, the judge and/or jury will decide the case and enter the judgment. 

In a jury trial, the jury generally determines both whether the defendant is responsible and how much the defendant should pay. The plaintiffs can also opt for a “bench” trial, or a trial in which there is no jury and the judge makes all case decisions. 

After the trial

After the trial, parties will file any post-trial motions and the settlement–if any–will be distributed to plaintiffs. Depending on state and local laws, both sides may have the option to appeal the case to a higher court. 

Other elements that can delay trials

While many of the delays in the litigation timeline are part of the process, others are due to efforts by one party to slow down the lawsuit in an effort to avoid paying. One of the most egregious examples of this is defendants in mass tort cases trying to push litigation into the bankruptcy court system through the so-called “Texas Two-Step.” 

In the Texas Two-Step, a profitable company facing litigation from consumers shifts their legal liability to a subsidiary, and then declares bankruptcy on behalf of that subsidiary. Because of a loophole in U.S. bankruptcy law, this automatically pauses all lawsuits against the parent company. The claims may be shifted into bankruptcy court, which usually results in lower payouts for plaintiffs. And even if the bankruptcy petition is rejected (as recently occurred with lawsuits against 3M and Johnson & Johnson), the Two-Step can drag the process out by several years. 

Read more about the Texas Two-Step and what Wallace Miller is doing to advocate for your case here. 

Why do class actions take so long?

While class action lawsuits generally follow the standard process of civil lawsuits, they include several additional elements that can increase the length of the litigation.  

During case filing & coordination

After the initial case filing, class actions often go through the processes of consolidation and appointing leadership. This usually occurs in situations where multiple potential class action lawsuits are filed relating to the same issue or conduct.  In those situations, the cases may be grouped together in one district to be investigated more efficiently. If multiple law firms have filed class action cases on behalf of their individual clients, the court is asked to decide which of those attorneys will be appointed to lead the consolidated cases as Lead Counsel, Co-Lead Counsel, or via Leadership Committee. This process may take months to complete. 

After the cases are consolidated and leadership is decided, the plaintiffs’ leadership counsel will often file a consolidated complaint on behalf of the whole group (or “class”). The defendants typically then file a motion to dismiss the consolidated claims, which can take another six months or more to decide. 

During discovery

Discovery in class action cases encompasses not only traditional liability discovery–investigation into the alleged wrong committed by the defendants and gathering the necessary evidence to win the case–but also class discovery. Class discovery involves obtaining the necessary information to show that a class action is appropriate in this circumstance. There are a number of qualifications that must be demonstrated, including: 

• There are enough people for a class action; 
• The members of the class share common questions of fact; and 

• The class interests will be protected. 

Class certification

Class action cases involve an additional, and sometimes lengthy, stage that other types of cases do not: class certification.  In order for a case to proceed as a class action—as opposed to an individual action—plaintiffs must ask the court to “certify” the class.  That process always includes the filing of a motion by the plaintiff, and sometimes also includes the submission of expert testimony on issues relating to the class and its members.  Unless class certification is done as a part of an agreed settlement, the opposing party will oppose certification and likely seek to strike the plaintiff’s experts. The court will then rule on whether the class can be certified before the litigation can move on. 

During settlement

In a single event case, like a car crash or a medical malpractice suit, the client typically receives their compensation relatively quickly. In class actions, however, the settlement process is more complicated. After the settlement negotiations have concluded, the parties will first seek preliminary approval of the settlement. If the court grants that approval, the next step is to notify the eligible class members that they can participate. Those individuals then have a set period of time (often 30 days) in which they can choose to participate (either by doing nothing or submitting a claim, depending on the settlement type), opt out, or object to the settlement. 

After the notice and claims period, the parties will move for a final approval of the settlement. Before granting final approval, the court will ensure that the settlement is in the best interests of the class and deal with any objections by class members. Only after the court issues a final approval order will the settlement administrator begin distributing money to the class participants. This process alone can take months or even years and can be further delayed if objectors seek to appeal the final approval decision. 

Why do mass torts take so long?

In mass tort cases, every plaintiff’s individual story, injuries, and medical history must be investigated. As a result, they typically take longer than single personal injury cases. 

Discovery is generally the most time-consuming component of mass tort litigation. This stage includes both general liability discovery (interviewing corporate employees, finding experts on the product in question, and so on) and case-specific discovery (investigating the details of a plaintiff’s individual injury, medical treatment, and case circumstances). 

Most mass tort cases will also have a few early bellwether trials to help both the defendants and the plaintiffs’ attorneys determine how the litigation is likely to go. If the plaintiffs win most bellwethers, the defendants will likely settle for higher amounts. If the defendants win, they will often still settle, but for a lower amount. 

The size of a mass tort can also impact its litigation timeline. For consumer products such as Roundup or talcum powder, there are potentially tens of thousands of cases, each of which will need to be investigated individually. Finally, during the settlement process, it takes time to negotiate with health insurers and resolve medical liens. 

What are the steps in a personal injury lawsuit?

Single event personal injury cases move more quickly than mass torts or class actions, typically taking between 18 months and two years. In cases like these, which include lawsuits over car accidents, medical malpractice, and workplace bias, the discovery process takes up the largest share of time. Personal injury lawyers will exchange written and oral discovery, interview witnesses and experts, and file motions before the case moves on to trial. 

Personal injury settlements often pay out more quickly as well, because compensation only needs to go out to one plaintiff (rather than hundreds or thousands as in mass torts and class actions). Issues such as plaintiff bankruptcy, dealing with the insurance company, or medical liens may delay the resolution, but the client is usually entitled to their compensation immediately after the settlement. 

Contact Wallace Miller

Whether your litigation takes months or years, the legal team at Wallace Miller has your back. We understand how difficult it can be to wait for justice on your case–and we’ll do everything we can within the system to move your lawsuit forward. From filing suit to resolution, we’ll make sure you know what’s happening every step of the way. 

Questions about your lawsuit? Reach out directly to the paralegal on your case or call our litigation specialists at (312) 261-6193. 

Medical records play a crucial role in mass tort litigation. In any lawsuit where medical devices, pharmaceutical drugs, or harmful consumer products may have caused or been part of the alleged injuries or damages, these documents provide a large portion of the evidence needed to support plaintiffs’ cases and help law firms establish causation between the harmful product or drug and the injury sustained. 

Mass tort law firms like Wallace Miller go through the process of requesting medical records in order to make the strongest case possible for our clients. Medical record review and retrieval is a complicated process, particularly in cases with multiple plaintiffs.

We sat down with a Legal Nurse Consultant (LNC) on our team to learn more about how it works. 

Meet Debbie Pritts 

Debbie has been an LNC at Wallace Miller for 17 years and has more than two decades of clinical nursing experience. As an LNC, she assists in reviewing medical records and works with the attorneys to help them gain a complete understanding of the medical aspects of their cases. 

What information do we get from medical records in mass tort litigation? 

Debbie: For many of our mass tort cases, we may need a very limited amount of information. We need the information for proof of use of either the device or the drug. And then whatever they claim their injury is, proof of the injury, and maybe some confounders or history of other risk factors that they might have had. 

What do we need from clients to request medical records? 

In order to sign on for a mass tort litigation, a potential client will work with our intake team to sign a Retainer Agreement. Once that’s completed, the client will fill out a packet of forms that include detailed questions related to the potential claim, questions about medical history, and a HIPAA form that we use to prove we have your permission to review your medical records. Based on the information you provide in the packet, we contact your medical providers as well as the offices, hospitals, and pharmacies that may have the records we need to move forward with the case.  

What happens after medical record retrieval? 

As soon as records come in, they are electronically made word searchable. We call that process OCR, optical character resolution. This process takes the digital image of the paper document and converts the letters, numbers, and symbols to a searchable text. This helps us to search the records more quickly and efficiently to see if we received what we requested for the mass tort case. If we were looking for certain information and it’s not in there, we have to request it. So then the process starts all over again. 

If we need more records, we re-request or go back to the client. Sometimes it happens that the provider will say, “There were no records for that date of service, we don’t have anything on file for those dates.” That means a call back to the client to say, “Did you give us the right dates? Let’s think about this.” So it’s really important to try to get that accurate information up front.

What happens when a law firm requests medical records? 

Many times, when we submit medical record requests on behalf of our clients, the provider wants to charge a third-party fee for requesting your records and sending them. That is the vendor’s business model and how they make money. 

The firm covers upfront expenses, but those expenses come out of the potential settlement. When we go through the process of record retrieval, we’re essentially spending future money that we are hoping will go to our clients. So, in an effort to be good stewards of their future money, we want to keep the cost as low as possible. We always let our clients know if a provider is charging an inordinate fee so they have a chance to decide whether or not we should pay it. 

Under HIPAA rules and the HITECH (Health Information Technology for Economic and Clinical Health) Act, patients have the right to get copies of their health records in electronic form without paying excessive fees. That’s why we don’t like to pay these third-party amounts. What the federal government says for patients who don’t want an itemized bill is that it should only cost six dollars and fifty cents. If you want an itemized bill as well, they can only charge for the time it takes one of their employees to make and send an electronic copy of that record. 

Can a law firm fight the fee? 

If we refuse to pay the amount because we think it’s too much money, then we can have our client, with our assistance, file an OCR—an Office of Civil Rights complaint—for failing to be able to obtain their records in a timely manner. But so many people are doing that and there’s so many complaints that we cannot always wait for that to happen. And it’s just another hoop to jump through, too, in this complete process that’s already so complicated. 

So, we can pay that amount, and still file the complaint, and hope that in the future we finally get a ruling on it. If that happens, we will be refunded, which in turn refunds our client if they get a settlement. But there are a lot of steps involved, and a lot of state statutes that can complicate things. 

Can patients request their own medical records? 

Yes, every person has a right to their medical records. Access to it should be immediate, it should not be delayed. A client can request their record electronically and request it be sent to them electronically. The provider cannot add stipulations like, “It’s an older record, we have to send it to you in paper format.” If they can run it through a copier, they must do that and then send it electronically. 

What the Office of Civil Rights says is that you have a right to access your records at any time, and in a reasonable amount of time, and in totality. They cannot withhold anything. Under HIPAA, providers have to release records right away to patients—but they’re under no such obligation to third parties. That’s one of the reasons it takes us longer than patients to get the records. 

Many of us can now access our own medical records through the summaries that are usually sent to you after a visit in your electronic record. If you have a hospital stay, you can get a copy of your medical records simply by going into your electronic records through the healthcare provider’s portal and finding how to request it. You put the request in, and they’ll send it to you, many times in twenty-four to forty-eight hours, and it’s free to do it that way. Of course, the vendors that employ people to send records do not like that, because they are not making the profit they were before. 

The most recent government guidance on patients’ rights to access their health information is available here: https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/index.html  

Is it better to go through a law firm to request records or request records yourself? 

Clients often rely on us to obtain medical records, because they feel it’s difficult for them to do. If there are problems with record access, though, it can be quicker and more efficient if a client gets their own medical records. It’s financially the most cost-effective way and the fastest way to get the record. But we can and we do request records for clients. 

If there are issues with getting the records, clients requesting their own is ideal because it’s usually quick. When my sister was in the hospital, she wanted to look at her records. I told her how to do it, she sent in the request, and in 24 hours she had her records in her portal that she transferred to me. It was 3,000 pages, the very next day. It’s that quick. It’s never that quick for us as a third party. There’s always a long process to follow. 

If there are access issues with medical records, the best and most effective next step is typically the client reaching out directly to their provider. Your medical records team will guide you through requesting access and provide you with sample language for contacting the healthcare facility. 

How much do medical records actually cost? 

As a firm, we set a fee limit of one hundred dollars, meaning we will pay one hundred dollars for medical records. If we receive an invoice for the records for more than that, we reach out to the client to explain, “We can pay this, but we want to get your approval, because you can get them for $6.50.” And some will say, “Go ahead and do it,” because they would rather not go through the process. But we also have staff who work with our clients to help them access the records and sometimes even get them for free. 

If anybody ever has a question about how to access their complete records, our medical records staff is prepared. They’re trained to help any of our clients to access their records efficiently and cost effectively.

Beyond cost, what are other barriers to accessing medical records? 

One thing that’s difficult for our clients is that they don’t understand the portal. They sign up for it, they get notices of messages, but they don’t actively use the portal. And how to get your record isn’t always easily found on the portal. For the elderly, or somebody that’s IT-challenged, it’s just too much for them to do. Once they get the record, they must send it to us electronically too. It can be confusing. 

Another issue is that it may be difficult for our clients to remember the details of past medical care, because many times it involves care going back ten-plus years ago. Many providers destroy records after ten years. So, if the records date back too far, we may not even have the ability to access them. They could be completely purged and nobody can retrieve them, particularly in pharmacy cases. 

When does the legal nurse consultant get involved? 

The nurses get involved when there are cases of medical malpractice, where it takes more intensive medical knowledge to go through the records. Or if we’re looking at potential bellwethers, we will scrutinize the records more closely to determine what the strongest cases are. For these cases, and individual one-off cases, the nurse is doing a more specific, detailed chronology.

Questions about how medical records may impact your mass tort litigation? Reach out to Wallace Miller at 312-261-6193 to speak to an experienced member of our legal team. We’re here to help you understand the case process and fight for justice.

What is litigation?

In legal terms, litigation is resolving disputes via the public court system. Any legal proceeding—whether that is a criminal lawsuit, a civil lawsuit, or a bankruptcy case—is a type of litigation. 

Although often used interchangeably, litigation is not the same as a lawsuit. The term litigation refers to resolving disputes via the legal system, while a lawsuit is the specific legal action brought by a plaintiff against a defendant. For example, in the context of mass torts, each individual plaintiff has their own lawsuit. But each lawsuit is part of a larger litigation about the same alleged defective product or wrongful conduct. 

The U.S. court system is divided into federal and state courts. Federal courts, which include the Supreme Court, the courts of appeals, and the District Courts, oversee cases concerning federal law, disputes between states, constitutionality, bankruptcy, and other country-level concerns. 

While the setup of state courts depends on the state, they generally include a state supreme or high court, a court of appeals, and a variety of trial courts. They oversee suits, including most criminal cases, tort or personal injury cases, family law cases, and cases involving state laws or constitutions. 

In the State of Illinois, most cases begin in the 25 judicial circuits (also known as trial courts) across the state. Appeal cases proceed to the Appellate Court, which is divided into five districts. The Illinois Supreme Court, which consists of seven justices, provides the final judgment on state law. Look up the organization of your state’s court system here. 

Understanding legal terms

Both criminal and civil cases involve a plaintiff (or suing party) and a defendant (or party responding to the complaint). In a civil case, the plaintiff is the person filing the lawsuit, while the defendant is the party against whom the suit is filed. Plaintiffs bring lawsuits in civil court because they believe they have been harmed by the defendant physically, financially, or otherwise. 

Defendants can be business interests, individuals, hospitals, insurance companies, nonprofits, or government organizations. In some cases, many plaintiffs claim that the same defendant or group has harmed them. Cases like these may be filed via a class action lawsuit or consolidated into a mass tort. 

 

Criminal Cases

Criminal cases operate differently from civil cases in several ways. The plaintiff in a criminal case is the State representing the victim (often called “The People” in official documents). At the same time, the defendant is the person or organization being accused of a crime.  

Civil and criminal cases also differ in how they handle the burden of proof, how much evidence is required to prove wrongdoing, and who is responsible for providing it. In a criminal case, the State must prove beyond a reasonable doubt that the defendant committed what they are being accused of. In a civil lawsuit, on the other hand, the plaintiff and the plaintiff’s lawyer must provide a preponderance of evidence—meaning showing that something is more likely true than it is not true—to prove that the defendant is at fault. This usually means it is easier to meet the burden of proof in a civil case. 

Why is the plaintiff important in the law process?

Under our legal system, individuals can seek compensation for damages. These damages may include physical harm, medical expenses, loss of wages, or emotional distress, and lawsuits can also be filed for people who died due to harmful actions.  

Plaintiffs sue for financial compensation, but that’s not all there is to it. Many plaintiffs file claims not only to be compensated for the wrong done against them but also to find answers and prevent the same thing from happening to others. 

At Wallace Miller, we understand that there is more than money at stake in these cases. When someone suffers harm due to fraud or negligence, they often feel ignored, disrespected, or erased. Through the legal process, our attorneys can help plaintiffs pursue justice, achieve some measure of recompense, and prevent the harm from happening again.  

What is a plaintiff’s attorney?

A plaintiff’s attorney, or plaintiff’s lawyer, is simply the individual representing the plaintiff. However, the term is commonly used to refer to an attorney who specializes in representing plaintiffs’ claims against larger interests such as insurance companies, corporations, or hospitals. 

Wallace Miller focuses on this area of the law to make a positive difference in the lives of those who have been wronged. By taking on cases in consumer protection, product liability, employment, environmental and toxic harm, and personal injury, we protect the rights of victims of negligence, fraud, and other wrongdoing. 

The defense attorney or the individual representing the party being sued is on the other side of the lawsuit. The term is also often used for lawyers who specialize in representing defendants. Large companies may have a team of defense attorneys on staff responsible for handling suits brought against them. 

How do plaintiff’s attorneys get paid?

Because they are bringing the suit, plaintiffs and plaintiffs’ attorneys are the active parties in beginning a claim. Depending on the nature of the case, plaintiff lawyers are often paid via a contingency model, meaning they don’t charge their clients anything during the legal process. In these circumstances, the attorneys initially pay out-of-pocket all necessary litigation expenses—including travel expenses for deposition, expert reviews and analyses, testimonies, documentation, records, and court filing fees. Then, if a settlement or verdict is awarded, the attorneys are reimbursed for those expenses and receive a percentage of the award amount as their fee. If a plaintiff doesn’t receive compensation, the attorney doesn’t get paid, and they do not get reimbursed for the expenses they paid out-of-pocket on the case. 

This means that the plaintiff’s attorneys take a financial risk in filing lawsuits. Experienced attorneys are experts at assessing the risk of a given claim and can help the plaintiff understand the situation accurately. Still, there is never a guarantee of a positive case outcome. This system allows average people to access the justice system without paying expensive attorney fees upfront. 

What is the role of a plaintiff lawyer?

In a civil case, the plaintiffs’ lawyers are responsible for representing the plaintiff(s) and fighting for justice on their behalf. Their end goal is to help the plaintiff receive compensation for damages caused by the defendant(s). 

During this process, they research the plaintiffs’ specific situation and the case in general. They build plaintiff files, gather and present convincing evidence, retain expert witnesses, and prepare documents for the court.  

Many cases settle out of court, and in these situations, the lawyer’s goal is to achieve the best compensation possible for their clients. The plaintiff’s lawyer may represent the individual in court if a complaint goes to trial before a judge and jury.  

On a societal level, plaintiffs’ lawyers can also use their skills to hold powerful parties accountable. When the actions of a person, corporation, nonprofit, or government organization cause harm to a large number of people, plaintiffs’ attorneys may represent them in a class action or a mass tort. This not only allows the people harmed to receive some compensation but also discourages these organizations from committing the same harmful actions in the future.  

Wallace Miller: Your plaintiff lawyers

We know that you have many options when considering a legal claim. Our passionate attorneys and professionals have dedicated their careers to pursuing challenging cases and fighting on behalf of consumers, individuals, classes of people, and small businesses against some of the largest companies in the world.  

The attorneys at Wallace Miller have more than 75 years of cumulative experience in the law and have won millions in recovery and settlements. Our firm is nationally recognized, and we are frequently appointed by federal and state courts to serve in leadership positions. Most importantly, we are committed to obtaining justice for each and every one of our clients. 

If you think you may have a claim against a business, corporation, organization, or any other group or would like to discuss your options, reach out to our firm today at (312) 261-6193 or fill out our online questionnaire for a free and confidential assessment in minutes. 

Related Posts

Working With Wallace Miller

Navigating The Legal System For Trespass To Chattels Cases

Whistleblower/False Claims/Qui Tam Attorney In Chicago