Trial Lawyer


What Does a Trial Lawyer Do?

Florida trial lawyers are experienced in handling cases in a courtroom. They are skilled at picking juries, presenting evidence, examining and cross-examining witnesses, making opening and closing statements, researching laws and judicial decisions that relate to a client’s case, and advising their clients throughout the trial. Trial lawyers regularly represent clients in the courtroom for civil or criminal matters.

What If I Don’t Want to Go to Trial?

Sometimes clients would prefer this route because they don’t wish to go to trial in a civil matter. Even if they have a strong case, they may not want to spend time and money in court, or they may be concerned that the trial will cause unwanted publicity for their business. There’s nothing wrong with wanting to settle out of court, but this isn’t always possible. Sometimes your attorney may try to negotiate a settlement with the other party but the other side simply isn’t willing to budge.

However, an experienced trial lawyer will do their best if you want to try to negotiate a settlement with the other side. The same skills they use in a courtroom are often helpful in negotiating a compromise out of court. If a deal can’t be made, they will be up to speed and able to represent you when you go to court. 

Under Florida law, parties may attempt to resolve their issues officially but outside the courtroom through two processes, mediation or arbitration. In mediation, parties negotiate and a third party will supervise and manage the negotiations while trying to keep things on track. The hope is that both sides can reach an agreement on their own. In arbitration, a neutral third party plays a role similar to that of judge and decides the outcome after listening to both sides. Both parties need to agree to enter mediation or arbitration; though mediation is generally mandated by the judge prior to having a trial. If they can’t agree, the case will proceed to trial.

People dealing with criminal charges may also prefer not to go to court but this often isn’t an option. There are some situations in which the prosecutor may be willing to make a deal but this may mean pleading guilty to the charges in exchange for a light sentence or probation. While this can seem appealing to some people, it usually means a permanent mark on your criminal record and, depending on the crime, may cause issues in other areas of your life. A criminal record may prevent you from voting, receiving government benefits, and getting into housing. Also, there are many instances where the prosecutor is not interested in making a deal in the first place.

If you have concerns about your criminal case, the next best step is to consult a Florida criminal trial lawyer right away. They can go over your case with you and explain your options so you can make an informed decision.

The Civil Trial

Civil trials usually settle disagreements between individuals or businesses over a sum of money, property, or some injury to a person’s rights or person. Businesses may go to trial over a variety of issues, including breach of contract or other contract disputes, real estate litigation, landlord/tenant difficulties, employment issues, and internal disputes between owners, partners, or shareholders.

Individuals may go to court over business or personal matters. Divorce and child support or custody are common sources of trials, and sometimes probate or estate issues may lead there as well, especially, if a potential heir wants to contest a will. People may also sue companies they feel have harmed them or damaged their property. They may also sue other individuals over things like property damage or encroachments. Workplace challenges may also lead to court, such as difficulties with a non-disclosure agreement or intellectual property, wrongful termination, or other issues.

A civil trial starts when the plaintiff files a complaint against another person or entity. If you are the plaintiff, your trial lawyer will draft the complaint, which states the nature of the loss or injury and asks the court to award “relief.” This relief may take several forms. You can ask for the defendant to pay damages or money for your loss. You can also seek an injunction, where the court orders the defendant to stop doing something or to prevent them from doing something. For example, if the case involves the misuse of your intellectual property, you might ask for an injunction to stop the defendant from using said intellectual property in their advertisements or other company materials. You may also ask for a declaratory judgment, in which the court explains the parties’ rights under a contract or statute, such as who has a right to do what with a piece of intellectual property.

Types of Civil Cases That May Go to Trial

There are many different types of civil cases. Here are some of the most common:

  • Torts. A tort or “tortious act” causes a person or business entity injury in some way. This could be a physical injury to a person or their property, or a financial one, or an injury to one’s reputation. Torts may include things like libel, defamation, malpractice, or fraud. For example, if you feel a local news website harmed your Stuart surf shop’s reputation by writing something untrue and damaging about it, you might want to sue them for libel or defamation.
  • Breach of contract. These cases commonly involve businesses or individuals who enter into contracts with other businesses or individuals. They may also involve real estate, investments, purchase/sale agreements, or employment contracts like non-disclosure or non-compete agreements. They are based on the claim that one or more parties to a contract failed to fulfil some obligation they agreed to in the document. Often, these suits happen because a contractor didn’t finish a job or didn’t do it correctly, or the client didn’t pay the contractor, or some product sold was never delivered, etc.
  • Equitable claims. These usually seek a court order to make another entity stop doing something, like advertising to your business’ customers, selling a piece of property, or tearing down a building.
  • Landlord/Tenant disputes. These trials typically revolve around a landlord trying to evict a tenant, or a tenant who moved out and is trying to recoup their deposit or other losses.

Civil cases usually proceed according to the following steps:

The pre-filing phase. Your trial lawyer will gather information and evidence. They may try to negotiate with the other party, but will also prepare for an upcoming lawsuit and eventual trial.

Pleading stage. If you are the plaintiff, your attorney will file your complaint, and the defendant will then have to file a motion or answer responding to it. Your Florida trial lawyer will help you figure out which court has jurisdiction so your complaint can be filed correctly. Then they will draft a document explaining the nature of your complaint, which will contain sufficient facts to establish all aspects of the claim. It will also include what you hope to gain from the lawsuit—for example, “plaintiff is seeking judgment of $20,000 for damages from construction defect caused by XYZ Construction.” Once the complaint is filed, the court will issue a summons and, in most cases, your attorney will hire a process server or another third party to deliver it to the defendant. 

Sometimes clients want to deliver the summons to the defendant themselves. This is not only a bad idea because things can get heated, but it may also not be allowed. Under Florida law, the person who delivers the summons must be an adult who is not a party to the conflict. In some locations, the county sheriff’s department may deliver these. If not, process servers are available for a modest fee.

What Do I Do If I’m Being Sued?

If you have received a summons yourself, you may be wondering what to do. Finding out that you’re being sued can be very stressful. Some people may have the urge to ignore a summons or pretend they didn’t get it. However, that won’t work since a summons is always personally delivered by a process server or other party who can assure the court that you got it. Ignoring a summons will likely only make things worse. In some cases, the court may just find against you since you couldn’t be bothered to respond to the summons, and you could end up owing whatever the plaintiff asked for.

In Florida, you typically only have 20 days to respond to a summons so it’s important to figure out what to do as soon as possible. Contacting a Florida trial lawyer should be your next step. Your attorney will go over the summons with you, explain your options, and draft a response after you decide what you want to do. If you want to try to work things out with the other party, your lawyer can assist you with this.

In some situations, you may have grounds to file a motion to dismiss. This is usually based on a claim that the court doesn’t have jurisdiction in the matter, that the summons wasn’t served properly, or that it doesn’t state a legal claim. You can also file a motion for a more definitive statement if the complaint isn’t clear. When you file a motion to dismiss or for a more definite statement, your time to respond to the complaint is extended until a judge has ruled on the motion. If they find in your favor, then the complaint is dismissed but the plaintiff would most likely still be able to refile an amended complaint. If not, then the judge would give you a specific amount of time within which to file a response.

You may also want to file a counterclaim, or sue the plaintiff. Your Florida attorney can help you figure out if you have enough evidence to support a claim against the person suing you. If you have a claim that stems from the same transaction as their claim, this is called a compulsory counterclaim. For example, maybe you are being sued by a contractor who claims you didn’t pay them in full for a construction job they did on your Port St. Lucie ice cream shop. However, you had to fire them before the job was finished because their work quality was so poor. You paid them for the time they had already worked and hired another contractor. This person told you that due to damage caused by the previous contractor, your costs for finishing the project would go up considerably, as some of the previous work would have to be torn down and redone. In this situation, you might file a counterclaim for damages against the contractor. If you do not file a counterclaim at this time, you would likely lose the right to sue in the future over the contractor’s damages.

You can also file a counterclaim for situations unrelated to the subject of the initial claim. These are called permissive counterclaims, and you do not have to file one when responding to the complaint in order to have a lawsuit later. However, you can file one when responding to the complaint if you choose.

You can also simply file an answer to the summons, stating whatever facts you have in your defense—that you did not do what was claimed, or mitigating circumstances (such as the contractor doing such terrible work that you had no choice but to fire them).

Discovery stage. At this point, both sides will exchange and request information from each other. Your lawyer may ask the other side for various documents or evidence. They may also prepare interrogatories, which are lists of questions other parties are required to answer. The other side may send you an interrogatory as well. Both sides may take depositions, which is where a lawyer asks questions, usually in an office setting, but with the witness under oath. These are usually recorded. You may need to be deposed, and if so, your trial attorney will spend some time helping you get ready for the deposition and going over potential questions you may be asked.

 As more information is gathered, your Florida lawyer will identify the strengths and weaknesses of the case and prepare for them ahead of trial. During discovery, both sides need to provide documents and witnesses to the court and the other parties, so everyone can prepare. If one side fails to include documents or witnesses in the discovery phase and attempts to use them later, the judge may decide to exclude them from evidence.

Pre-trial phase. Your attorney will make sure evidence and witnesses are ready to go, may negotiate with other parties, and may file additional motions with the court. They may also write responses to motions filed by the other party.

Depending on the circumstances of your case, your lawyer may request a bench trial instead of a jury trial. In a jury trial, the jury decides the case, and because a jury includes multiple people, these trials are much more complicated. In a bench trial, the judge decides the case. There are pros and cons of both types of trials, and your attorney can advise you on which would be better for your situation.

Trial stage. This can last anywhere from one day to a week, or a few weeks to a few months. If you are having a jury trial, the selection process, or voir dire, could take several days. This is a complicated process, and your trial attorney will use their skills to help ensure the jury is made up of people who will judge the case fairly. For this reason, they may object to certain jurors they believe can’t be objective about the case for some reason.

After a jury is selected, the trial will begin. The plaintiff’s trial lawyer will make an opening statement, and the other party’s attorney will do the same. Both sides will present evidence, question witnesses, and eventually make closing remarks. At this point, the jury will deliberate and reach a decision.

Civil trials begin with the plaintiff, who has the burden of proof. If you are the plaintiff, your trial attorney will explain your case. They’ll state the events that led up to the lawsuit, call and examine witnesses, and introduce evidence. These can include objects, documents, videos, etc. After your attorney questions a witness, the defendant’s lawyer may cross-examine them—usually they will ask questions to poke holes in or raise doubts about the witness’ story and/or credibility.

When the plaintiff’s attorney is finished, the defense side will present their case. They may also call witnesses and introduce evidence. The plaintiff’s attorney may cross-examine their witnesses as well.

Often clients want to know if they will have to testify. This depends on the circumstances of your case but, in many situations, your lawyer may believe it’s important for you to testify. For example, you might have been the only witness the day your contractor cracked the foundation of your business building. If this is the case, only you can tell the jury what happened that day. If you and your attorney agree that you should testify, they will go over the questions they plan to ask, as well as questions the other party’s attorney may present you on cross-examination.

After both sides have presented their cases, the attorneys will both make closing statements. Then, the jury will deliberate until they reach a decision, or the judge will rule. In a bench trial, the judge can rule from the bench and issue a written decision later, or they can take time to consider the matter and just release a written decision when they’re ready.

What does the jury need to consider in a jury trial? The judge will give the jury instructions, usually relating to being fair, impartial, and making a decision based on the evidence presented. In most civil cases, juries are asked to decide based on a “preponderance of evidence,” which means the jurors found one side’s evidence more convincing. This is a different standard than in criminal cases, where the jury is asked to decide if the defendant is guilty “beyond a reasonable doubt,” based on the evidence presented.

Post-trial stage. After the case concludes, the final decision will be filed with the local clerk and a copy provided to all parties in the case. At this point, the losing party may want to appeal the court’s decision. If, unfortunately, you did not win, your attorney will go over your options with you. 

The party that won will usually try to collect on a judgment or execute an injunction. You may also try to recover court costs and, in some cases, attorney’s fees, from the other party. If your case was based on some sort of contract, such as one with a contractor, there may be a clause that stipulates who is responsible for court costs and attorney’s fees in the event of courtroom litigation.

If you need assistance with an upcoming trial or lawsuit, or have questions about any potential legal matter, please contact Apfelbaum Law for a consultation. You can also check out our  Litigation Practice Area for more information. We have offices in Port St. Lucie and Stuart, but provide legal services throughout the Treasure Coast and Florida. 




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