Flooring Case Review and Litigation Support

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  Arbitration
Conflict of Interest
Deposition
Expert Witness
 
Litigation
Mediation 
Retainer
Small Claims Court

 
     
 

 

Arbitration:

In arbitration, parties mutually select a neutral decision maker from a list of individuals with expertise in the area in dispute. Arbitration is less formal than litigation and the evidentiary process is limited. Arbitration is private and the parties can agree to make the process confidential. Arbitration awards are binding and are vacated only under limited circumstances, as outlined in state and federal arbitration laws. Most civil cases are good candidates for arbitration.

 

Conflict of Interest
Is  a situation in which a person has a duty to more than one person or organization, but cannot do justice to the actual or potentially adverse interests of both parties. This includes when an individual's personal interests or concerns are inconsistent with the best for a customer, or when a public official's personal interests are contrary to his/her loyalty to public business. An attorney, an accountant, a business adviser or realtor cannot represent two parties in a dispute and must avoid even the appearance of conflict. He/she may not join with a client in business without making full disclosure of his/her potential conflicts; he/she must avoid commingling funds with the client, and never take a position adverse to the customer.

 

Deposition

A deposition is one of the many tools lawyers use to gather information before a trial. In fact, in many ways, a deposition is like a trial. If you are called or subpoenaed for a deposition, you are being called to testify about your personal knowledge of facts that relate to a lawsuit.

When a lawsuit is instituted, the parties have the right to conduct discovery (formal investigation) to find out more about the case. Discovery can be done in a number of different ways. Requests for documents, interrogatories (written questions), and depositions are the most common ways. These methods allow the parties to find out what the facts are and what each witness knows.

A deposition is the taking of an oral statement of a witness under oath, before trial. It has two purposes: To find out what the witness knows, and to preserve that witness' testimony. The intent is to allow the parties to learn all of the facts before the trial, so that no one is surprised at trial. Contrary to what you see in the movies, springing a surprise witness at the eleventh hour of a trial is regarded as unfair. By the time a trial begins, the parties should know who all of the witnesses will be and what they will say during testimony.

A deposition does not involve only favorable testimony. If a witness' testimony will be damaging to your case, you will need to know about it before trial. The last thing you want is to be surprised at trial with the damaging testimony. Therefore, it is usually wise to take that witness' deposition so that you will know in advance what that witness will say.

A deposition does not take place in court. Instead, it usually takes place at an attorney's office. The attorney will ask the witness, or deponent, a series of questions about facts related to the lawsuit. The rules allow some latitude in the areas that can be inquired into. The deponent must answer all proper questions under oath. The deponent does not ask any questions. He or she only answers questions.

The entire deposition is preserved word-for-word by a court reporter, who is present throughout the session. A transcript is produced at a later time. The deponent can have his or her attorney present at the deposition, and the parties to the case can also be present. Judges are not present at depositions, except in special cases. You may recall that the trial judge was present at one of Bill Clinton's depositions to rule on problems that arose.

A deposition can be videotaped. This is usually done when the deponent is very ill and may not be well enough for trial. It can also be done if the deponent will be out-of-town or unavailable during trial.

A deposition can be as short as fifteen minutes or a long as a week or more for a heavily involved witness. All depositions are very serious matters. What is said at a deposition is very important. The deponent should listen to the questions carefully and be precise in his or her answers. Remember, the deponent is under oath. There are consequences for false statements made under oath. Top

 

Expert Witness

An Expert witness is a person who is a specialist in a subject, often technical, who may present his/her expert opinion without having been a witness to any occurrence relating to the lawsuit. It is an exception to the rule against giving an opinion in trial, provided that the expert is qualified by evidence of his/her expertise, training and special knowledge. If the expertise is challenged, the attorney for the party calling the "expert" must make a showing of the necessary background through questions in court, and the trial judge has discretion to qualify the witness or rule he/she is not an expert, or is an expert on limited subjects. Experts are usually paid handsomely for their services and may be asked by the opposition the amount they are receiving for their work on the case. In most jurisdictions, both sides must exchange the names and addresses of proposed experts to allow pre-trial depositions. Top

 


Litigation

A controversy before a court or a "lawsuit" is commonly referred to as “litigation”. If it is not settled by agreement between the parties it would eventually be heard and decided by a judge or jury in a court. Litigation is one way that people and companies resolve disputes arising out of an infinite variety of factual circumstances.
The term "litigation" is sometimes to distinguish lawsuits from “alternate dispute resolution” methods such as "arbitration" in which a private arbitrator would make the decision, or “mediation” which is a type of structured meeting with the parties and an independent third party who works to help them fashion an agreement among themselves.

 

Be prepared to prove beyond a shadow of a doubt that the defendant is responsible for the items for which you're suing. If you're suing for breach of contract, be sure to produce not only the contract, but also evidence of the defendant's failure to honor it.

 

Consider hiring expert witnesses to provide additional testimony, if needed. These are usually used if you're making a key argument that relies on conjecture or theory of some sort. Expert witnesses are used to give added weight to such arguments. Top

 

Mediation
Mediation is a voluntary process in which parties to a dispute work together with a neutral facilitator – the mediator – who helps them reach a settlement. The mediator does not decide the case. Mediation is a dispute resolution process that is generally considered to be confidential. Mediation is offered as an option to parties who file an arbitration. The results of mediation are binding if and when parties enter into a settlement. Top

 

Retainer
An advance payment to an expert for services to be performed, intended to insure that the expert will represent the client and will be paid at least that amount. Commonly in matters which will involve extensive work there will be a retainer agreement signed by the expert and client. Further payments for services can be expected as the time spent on the legal matter increases. Top
 

Small Claims Court
S
pecial Civil or Small Claims Court is a division of most municipal, city or other lowest local courts which hear cases involving relatively small amounts of money The highest (jurisdictional) amount that can be considered in small claims court varies by state, but goes as high as $5,000 in some states. In small claims court, attorneys may not represent clients, the filing fee is low, there is no jury, the procedure is fairly informal, each side has a short time to present his/her case and the right to appeal only permits a trial de novo (a new trial) at the next court level. Often the judge is an experienced lawyer sitting as a pro tem judge. Small claims court is a quick, inexpensive way to settle lesser legal disputes. Top