Among its many meanings, “transparency” means allowing light and open or candid. Any client who has a lawsuit should be able to find out and understand what is going on with his or her case, at any time during the case, and be able to access case documents. This means that the client must be able to communicate by email or telephone with and receive a thorough, timely response from the attorney who is in charge of the case, not just another or junior attorney or paralegal or secretary.
Effective attorney-client communication is not just a marketing promise, it is an ethical requirement under Rule 1.4 of the New York Rules of Professional Conduct: see pages 18-19, NYRulesofProfessionalConduct. Rule 1.4(a)(3) requires that the client be kept reasonable informed about the status of his or her matter.
The Firm’s strength is effective and personal representation. Robert Erlanger meets and discusses the factual and letter issues with each potential Firm client. Once you become a client, he personally represents and communicates with you. He will respond to your emails or calls as quickly as possible and keep you informed, in detail, about the status of your matter.
The Firm also believes that clients should be able to access documents filed with the court. Many cases are now filed electronically, known in the New York court system as “e-file.” You may review any document any e-filed case in New York State Supreme Court by clicking “Search as a guest” in the court system's website: https://iapps.courts.state.ny.us/nyscef/Login. You may find your case by entering the index number, or under the “Name” tab, entering the name of any party or attorney. If your case is not electronically filed, we pledge to email you a copy of any filed or other document that you might wish to review.
Lawsuits in New York City can move slowly. This may be a combination of any number of factors, including a slow exchange of documents and scheduling other discovery between attorneys, one party being slow in providing discovery, and the general difficulty in quickly moving cases through the court system, particularly in actually getting to trial. But you should be knowledgeable as to how your case might move through the system. The following is our published guide on how cases move through the New York State Supreme Court, particularly in the five New York Counties, New York, Bronx, Kings (Brooklyn), Queens and Richmond (Staten Island):
1º THE BEGINNING
We prepare your Complaint and file it with the county clerk along with the $210 fee to purchase the index number. The Complaint and the summons are then served on defendant(s). Typically, defendant´s attorney or an insurance adjuster will call us to ask for an extension of time, beyond the initial 20 days, in which to serve an answer.
These extensions are routinely granted and will add at least 30 days to the case progress. The defendant then serves its answer with discovery demands. Once we have received defendant´s answer, we will file a Request for Judicial Intervention with the $90 fee, to request scheduling of a Preliminary Conference ("PC").
2º THE PC AND INITIAL DISCOVERY
Some cases receive electronic discovery orders setting dates so there is no actual PC. But typically a PC is scheduled. Because of reduction in court budgets, the PC date may be set weeks or months ahead. This adds even more time to the case progress.
In the meantime, we will be collecting information from you to complete your response to demand for a Bill of Particulars, which adds detail to the facts of your Complaint, including the statutes and regulations your claims rely on and more detail about your injuries, medical treatment, and any lost income.
The parties will also exchange documents and defendats will be provided with medical authorizations so that they can access and review your medical treatment records. We will also communicate with defense counsel or insurance adjuster(s) for an early case resolution, if the circumstances are right.
3º DISCOVERY GENERALLY AND TIMING
Discovery or disclosure is how each party learns about the substance of the other's case. Do the facts support the legal theory or defense? What do the experts have to say for each side? Discovery involves the exchange of documents and information and conducting depositions, and usually takes one to two years.
How quickly it moves depends upon: the case complexity; the amount of documents needed to be exchanged including their accessibility; whether the parties exchange documents and produce deposition witnesses according schedule; how aggressive the judge is in pushing along his or her cases; and the attorneys' schedules.
After initial scheduling, status or compliance conferences are held every few months so that the court can monitor the discovery progress. These conferences result in agreements between the parties that are approved by the court and referred to as compliance conference orders. There generally is no penalty for not meeting the schedule so this adds much more time.
4º DEPOSITION AND MEDICAL EXAM(S)
Your first real contact with your case will likely be your deposition, also called an examination before trial (EBT). An EBT is really an interview under oath by the opposing attorney(s). A court reporter will record everything that is said by you and all of the attorneys unless any attorney makes a statement "off the record".
We will prep you for your EBT in advance, including explaining the rules of the game. Court rules require that the EBT proceed with a minimum of interruptions by the attorneys but we do fight and we will do what we believe is necessary to protect your interests. As your lawsuit involves physical injuries, defendant(s) expert physician is allowed to examine you in his or her office.
This called an Independent Medical Exam (IME), but it is certainly not independent because it is by defendant(s) expert(s). Depending on your injuries, there may be several IMEs by different specialists.
5º TO THE TRIAL CALENDAR
At discovery completion, we must file a Note of Issue ("NOI") with a fee, $90 for a jury trial. The NOI tells the court system that your case is ready for trial. Within a limited time after the NOI filing, typically 60 days, defendant may make a summary judgment motion to have your case or some issues thrown out.
The completion of all parties' motion papers and judge's decision on the motion will typically add one to six months to your case progress, although some judges make their decisions promptly at or right after oral argument by the attorneys. After your case survives the summary judgment motion, it will move slowly but surely toward jury selection.
Some counties first require mediation. In mediation, the court-appointed mediator evaluates the parties' legal claims, evidence and demands and tries his or her best to get them to settle. Usually, only the attorneys attend the mediation but the parties are required to at least be available by telephone.
If the mediation fails, your case will be scheduled for jury selection in a few months. Note: at this point in the lawsuit, many attorneys now hire mediators from private organizations, usually NAMS or JAMS, to try to settle cases outside the court system; these mediations, which are far more comprehensive than the court’s mediations (which are free) require that the organization be paid for the mediator’s services up front.
6º JURY SELECTION
On a certain date, your case will be called for jury selection before the trial assignment judge. But this rarely means that the attorneys will be sent out to pick a jury on that date. Expert witnesses may be difficult to schedule and attorneys have their own scheduling conflicts like other jury trials.
There may also be too many older cases on the jury selection list ahead of yours and a limited number of trial judges. After repeated jury selection appearances, six months may pass by before the day the attorneys are actually allowed to pick a jury. And in at least one county, even once a jury is selected, weeks pass by before the jury is called back to attend the actual trial because there are no available trial judges.
Once the trial judge is assigned, the trial will usually begin within a few days to a week, depending on the judge's schedule and schedules of expert witnesses.
From one point of view, having to go to trial is a failure because the parties were unable to reach a reasonable settlement. (Books could be written about settlement and negotiation strategies). Sometimes, settlement is just impossible due to unreasonable positions taken by the parties, or most often, defendant(s)’ insurance carrier(s). But here we are. Trial will be stressful.
How long the trial takes depends on many factors, including the complexity of the issues, the quantity of evidence (documents and number of witnesses), and the judge's and witnesses' schedules. The judge's schedule is the most important factor, and a case that should take a few days or a week could stretch out to weeks, even months. Most cases end up settling at some point, whether right after jury selection or up to the time the jury has heard all the evidence and is deciding your case.
Some judges push settlement throughout the trial and others take a hands off approach. Ultimately if there is no settlement, the jury will render its verdict. In civil cases, a verdict in your favor requires the vote of five of six voting jurors on both liability (who was responsible) and damage (how much).