Trials, Litigation, & Arbitration
Some of our clients have had very little exposure to arbitration or litigation, and are unsure exactly what a trial is or how a trial differs from arbitration. To assist you in better understanding the fundamentals of litigation and arbitration, here are a few simple explanations.
Trials and litigation are an important part of the everyday operation of our legal justice system. Litigation is a broad term and refers to the act or process of bringing a legal action to court. In other words, it is everything before, during, and after trial.
A trial is an event in which two or more parties appear in a courthouse to prove or dispute claims through argument and evidence. A trial may be heard before a jury, judge, and are generally tried in public. The length of trials can last anywhere from a few hours to several weeks.
There are two basic forms of trials: bench trials and jury trials. A bench trial is one tried only before a judge and typically takes less time than a jury trial. A jury trial is a one held before a group of community members that have been chosen for that particular trial.
In some cases, the parties submit to arbitration. Arbitration occurs outside the court system. Most times, the parties submit to arbitration by agreement in a written a contract. In arbitration, two or more parties select an independent third person, an arbitrator, or multiple arbitrators, to decide the dispute. For example, most securities claims are heard by the Financial Industry Regulatory Authority, also known as FINRA, which is a private self-regulatory organization that coordinates private arbitration of securities claims. Our firm routinely represents clients in FINRA arbitrations.
What to Expect in Litigation
Tampa Bay Civil Litigation Attorneys | Probate Litigation Law Firm
The Litigation Process in Florida.
To get more comfortable with the litigation process and some of the legal terminology, below is an overview what to expect in your civil lawsuit. Of course, if you have any questions or want more details, you can contact PersanteZuroweste
Our clients often ask us how long their lawsuit will take to reach a resolution. Unfortunately, it is impossible to estimate a timeframe. Each case is unique and timing depends on a variety of factors including the complexity of the issues in the case, the amount of discovery, and the court’s availability.
The first step in bringing or defending a lawsuit is the consultation. This is your opportunity to tell your story to us. You are encouraged to bring every relevant document to the consultation.
Typically, lawsuits are not brought immediately after the consultation. In drafting the Complaint, attorneys and their clients often create many drafts to make sure the allegations are scrupulously accurate. Without getting too technical, the Complaint explains why the court has the authority to hear the case (jurisdiction), where the case should be litigated (venue), the difference causes of action or legal theories for the lawsuit, and how much the Plaintiff has been harmed (damages).
Service of Process:
Once the Complaint is finalized and filed with the Court, the Plaintiff in Florida state courts must serve the Complaint on the Defendant(s) within 120 days.
Responding to the Complaint:
Once the Defendant has been served, in Florida state courts he or she has 20 days to respond to the Complaint. This is called the first responsive pleading. The response is either an Answer, which may contain legal defenses to the lawsuit (affirmative defenses), or a motion in lieu of the Answer, such as a Motion to Dismiss. If a Motion to Dismiss is filed, the Court must determine whether the Complaint states a legal cause of action. An answer is exactly what it sounds like. The Defendant must answer every allegation by admitting or denying each paragraph in the Complaint.
The discovery phase is critical to winning cases and can usually take one year or more to complete. This is the stage of the lawsuit where both parties exchange information. The purpose of discovery is to give each party the opportunity to fully understand the opposing party’s argument and evidence in the case. There are many different methods to receive information in a lawsuit. The most common are:
- Requests for Documents: This form of discovery involves the request for documents and records that could be important to the lawsuit.
- Interrogatories: These are questions asked by one party to another party. The other party must answer the questions in writing and under oath.
- Requests for Admission: Here, one party asks the other party to admit to the truth of something. The purpose of requests for admission is to narrow the issues in the case.
- Depositions: A deposition is the lawyer’s opportunity to question the opposing party and other witnesses in the case. Depositions are transcribed by a court reporter so that they can be used at future court proceedings.
Generally a trial is the opportunity for your case to be heard. Trials can either be decided by a Judge or Jury. Trials range in length from a few hours to several weeks. Generally, the Plaintiff puts on his or her case first. The Defense puts on its case, and then the Plaintiff is allowed to respond. The nature and complexity of trials depends on the types of claims involved and the facts of each case.
Once the trial is complete, it usually does not mean the case is over. Depending on the case, sometimes there are additional motions to be heard and sometimes the losing party will file an appeal.
After trial, a party may ask a higher court to review the trial court proceeding. If an appeal is taken, each party submits a written argument, called a brief along with evidence from the trial. Generally, the appellate court will review the trial court for legal error. Appeals can be rather quick, or take a year or more.
What to Expect in Arbitration
Tampa Bay Arbitraion Attorneys | Arbitration Law Firm
The Securities Arbitration Process
Most securities claims are decided by FINRA (the Financial Industry Regulatory Authority) arbitrations. FINRA operates the largest dispute resolution forum in the securities industry to assist in the resolution of monetary and business disputes between and among investors, brokerage firms, and individual brokers. An experienced securities lawyer is critical to navigating the FINRA securities arbitration process. If you have any investment related claim, do not hesitate to contact one of our attorneys.
What is Securities Arbitration?
Securities arbitration is a formal dispute resolution process where the parties select neutral third party to review the evidence and decide the case. The arbitration process provides significant advantages for an investor because the process is usually less costly and time consuming than a traditional lawsuit and parties reach a resolution more quickly. Below is a brief description of how a securities arbitration progresses.
Filing the Statement of Claim:
The first step in the arbitration process is filing a Statement of Claim. A person bringing a securities action is called a “Claimant.” The Claimant files a Statement of Claim, which includes a description of the dispute, the parties involved, and the amount of money the Claimant seeks. Unlike a “Complaint” filed in a traditional lawsuit, the Statement of Claim is more detailed and comprehensive, and includes significant factual detail. This is the opportunity for you to tell your side of the story and provide documents supporting your claim.
FINRA examines the Statement of Claim:
Once FINRA has received the Statement of Claim and the necessary fees, FINRA will review the claim, determine the number of arbitrators required to hear your case, and review the nature of the dispute and type of securities involved. FINRA then assigns a case number.
A brief note about location: The arbitration hearing will typically take place at the location nearest to where the Claimant lived at the time of the original dispute, unless the parties agree on a different location. In Florida, there are FINRA dispute resolution offices in Tampa, Orlando, Miami, Boca Raton, and Jacksonville.
FINRA Serves the Respondent:
The party defending a securities arbitration dispute is called the Respondent. After examining the Statement of Claim, FINRA notifies each Respondent a packet by mail that includes the Statement of Claim, FINRA’s rules, and a FINRA Submission Agreement.
Answering the Statement of Claim:
A Respondent has 45 days to answer the Statement of Claim. The answer usually outlines the defenses Respondent plans to argue and documents supporting their argument. Once FINRA receives the answer, FINRA examines it to see if the Respondent has filed a claim against the Claimant (this is called a counterclaim) or a claim against another Respondent (this is called a cross claim).
In a traditional lawsuit, a jury is selected for the trial in a process called voir dire. In the FINRA arbitration process, the parties get to select their arbitrators in advance. FINRA provides each party with an identical list of potential arbitrators. The list contains a disclosure report, which is a detailed information sheet about each arbitrator’s background including education, training, and history of arbitration awards (or decisions). Each party then reviews the disclosure report and ranks the arbitrators in order of preference. Each party can also strike some of the arbitrators from consideration entirely.
There are two types of arbitrators, ones who have a connection to the securities industry (non-public arbitrators) and those who have no connection to the securities industry (public arbitrators). Arbitrators take an oath to remain neutral and must decide the case based on the facts and merits of the case.
Once the arbitrators are selected, there will be a pre-hearing conference conducted telephonically. The arbitrators and the attorneys from each party discuss important deadlines, set the final arbitration hearing dates, and other procedural issues.
Discovery is the process where each party exchanges information and identifies their witnesses. The exchange of information usually occurs within 60 days of the Respondent’s Answer. Each party must comply with the FINRA Discovery Guide. In addition, each party can request documents relevant to the claims in the Statement of Claim.
The Arbitration Hearing:
The Arbitration Hearing is similar to a traditional trial, but less formal. Just like a traditional trial, each party is given an opportunity to make an opening statement, present their evidence, and make closing arguments. Unlike a trial, however, arbitrators do not need to rule in favor of either party. Arbitrators are typically given 30 days to make a decision in the case.
Each arbitrator has an equal vote in making the decision, with a majority deciding the case. When the arbitrators render an award, they also decide the allocation of FINRA forum fees. The award is legally binding and final unless there is a court challenge. If the Respondent is required to pay money to the Claimant, the Respondent must pay within 30 days or they risk suspension from FINRA. Typically, the arbitration award is confirmed in state court and converted into a judgment by a court.
A party can appeal an arbitration decision by making a motion to vacate or a request to have the court set aside the award. Appeals are rarely successful, and are generally limited to one of two events occur: when an arbitrator commits fraud or manifestly disregards the law. These circumstances are extremely rare.
To view the regulatory history of your financial advisor, conduct a BrokerCheck at FINRA’s website.
In addition, FINRA offers a video of what investors can expect in the arbitration process. The video can be viewed HERE.
FINRA has provided a list of common investor problems and tips on how to avoid those problems. Investor Best Practices
For a list of FINRA’s fees and costs please see the List of Arbitration Fees and Terms or the Arbitration Fee Calculator.
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Our lawyers litigate disputes on behalf of beneficiaries, trustees, and other interested parties. He handles trust contests, trustee removal, and breach of trust actions.
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Even the best estate planning can potentially spawn disagreements between beneficiaries, heirs, or other interested parties. We can assist in challenging an estate plan, defending a will contest, or lawsuits relating to personal representatives.
We handle causes of action for breach of fiduciary duty relating to powers of attorney, caretakers, family members, trustees, and personal representatives.
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