Effective Case Resolution in Today's Legal Environment, 0713 ALBJ, 74 The Alabama Lawyer 233 (2013)
| Author | G. Whit Drake |
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\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Great Recession of 2008 created a number of obstacles to the speedy and efficient management of civil lawsuits.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The economic woes have also affected the efficiency and ability of some insurance companies to quickly and fairly resolve claims with personal injury claimants. Even “too big to fail” insurance companies like AIG had well-documented problems with their liquidity. Finally, as a result of the poor economic conditions and the lack of adequate revenue, the State of Alabama has not adequately funded the court system, which has resulted in budget cuts and lay-offs.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0All of the these factors have created hurdles for the average practitioner, whether representing plaintiffs or defendants, in efficiently and speedily resolving all manner of civil claims involving personal injury, probate, divorce and other legal issues. The purpose of this article is to address the different ways in which attorneys can resolve their client’s legal matter, while at the same time minimize their expense in this fragile economy.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Pre-Suit Resolution/Don’t File the Case Just Yet!
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Mediation can be an effective tool in resolving a dispute. There is no requirement that mediation must occur after the filing of a lawsuit. It can occur anytime upon agreement of the parties. Generally speaking, mediation is a voluntary process whereby parties to a dispute agree to allow a certified mediator to assist them in resolving the claim. The benefits of an early, pre-suit mediation are obvious. If the case can be resolved early on, the various expenses associated with litigation, such as filing fees, subpoenas, expert witnesses, depositions, and the like, can be avoided. Additionally, resolution by mediation takes the court system, and a potentially protracted litigation process, out of the equation.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0For the plaintiff ’s attorney who is, for example, handling a personal injury claim, the best advice here is “don’t be greedy!” For the most part, you can get a better result for your client by getting a reasonable amount of compensation and avoid the two- or three-year delay associated with the court system. In this instance, the present value of money and the avoidance of court delays and expenses should encourage a willingness to settle for a lower amount than what you really wanted for your client.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Rule 27 Petition
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0One of the most overlooked, but useful, tools in a litigant’s arsenal is the Rule 27 pre-filing petition. This allows an attorney to conduct limited discovery-before a formal suit is filed-to identify the proper party defendants and essentially determine whether a claim should even be filed, thus potentially saving time and money by avoiding filing a formal lawsuit that would ultimately be dismissed. Rule 27 provides, in pertinent part, as follows:
(a) Before action.
(1) PETITION. A person who desires to perpetuate that person’s own testimony or that of another person or to obtain discovery under Rule 34 or Rule 35 regarding any matter that may be cognizable in any court of this state may file a verified petition in the circuit court in the county of the residence of any expected adverse party. The petition shall be entitled in the name of the petitioner and shall show:
(1) that the petitioner expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought,
(2) the subject matter of the expected action and the petitioner’s interest therein,
(3) the facts which the petitioner desires to establish by the proposed testimony and the petitioner’s reasons for desiring to perpetuate it,
(4) the names or a description of the persons the...
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