Civil Procedure 101 - Part 3

Continuing series in an effort to live up to the blog's name. Feel free to use any information contained herein at will.

Disclaimer: for informational purposes only; not to be construed as actual legal advice pertaining to any particular situation.

Subpoenas

A subpoena is a written order issued by an attorney to a witness to appear to give testimony, and/or bring documents to trial or produce documents to the attorney issuing the subpoena. If documents are obtained from a non-party witness, the attorney who obtained them typically will produce them to the other parties in the case.

Costs

In a civil matter, the parties bear the cost of their own witnesses and discovery. As a practical matter, this usually means that the attorney (or, on the defense side, the defendant's insurance company) fronts the cost.

For example, in a motor vehicle accident case, the plaintiff (the person who was injured and filed the complaint) is usually represented by an attorney (but not always - you can always represent yourself). The attorney typically fronts the costs of the litigation, and either bills the plaintiff on a monthly or quarterly basis, or takes the costs out of the settlement at the end.

The defendant, on the other hand, will almost always have car insurance. The insurance company will arrange for representation of the defendant as part of his insurance coverage (the defendant can also arrange to have outside counsel, at his own expense). The insurance company is usually billed by the attorney they retain (many insurance defense attorneys are in-house, or work in "captive" law firms, owned by the insurer) for the costs as they go, and usually an insurance defense attorney will get approval of any costs they need to incur, beyond every-day items like photocopies and postage.

Pre-trial and Scheduling Conferences

A pre-trial conference in a civil matter is a meeting of the parties, their attorneys, and the judge. It takes place in the courtroom, and usually the attorneys and the judge work out a trial schedule, and discuss any pre-trial motions (such as motions in limine) that have to be decided before trial can go forward. The parties are usually present in the event that settlement is discussed, so that if the case can be settled, they can agree to the settlement's terms; then the court can approve the settlement, and the case doesn't have to go forward to trial (or can go forward, but with fewer issues to be decided). An attorney always has to have his client's approval of a settlement offer, before the attorney can accept it, so having the client present saves time.

A pre-trial conference differs from a scheduling conference. A scheduling conference happens soon after all parties have filed their initial documents (complaint and answer, etc), and sets certain deadlines and dates for the progress of the case as it goes forward. After the conference, the court usually issues a scheduling order to document those dates. Once that has been done, a scheduling order can be amended, but usually that requires a motion. A pre-trial conference, on the other hand, usually happens about 2-4 weeks before the trial date.

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