We’ve helped attorneys and others with auction litigation consulting since 2010. The other day, I was asked what “auction litigation consulting” was … or “looked like.” Here’s an overview:
First, there are basically two types of lawsuits — criminal and civil. Our work most always involves civil cases between two parties where the plaintiff is damaged in some way. The other is criminal where the plaintiff is the government (the public) who has been damaged due to some criminal activity.
In a typical civil lawsuit, here’s the flow of activity:
Lawsuits result from one party (plaintiff) filing a complaint in the appropriate court detailing the damages incurred and the other party (defendant) being notified of such complaint.
Pretrial Discovery is where depositions are taken and interrogatories are used for each party to ask questions of the other party, all to be answered under oath.
Settlement Negotiations are ongoing throughout the litigation process. Most civil litigation is settled before a court judgment — and in fact — many parties settle before the trial even begins.
Jury or Judge. For the most part, litigants have a right to a trial by a jury, but some cases (and some remedies requested) must be heard and decided by a judge rather than a jury. Remedies are typically either legal (money or property) and/or equitable (orders to do something or refrain from doing something.)
Trials involve opening statements by the plaintiff’s attorney followed by the defendant’s attorney. Witnesses are called to testify who typically support that particular client’s version of the facts. Fact witnesses are people who witnessed the actual events connected with the dispute, whereas expert witnesses are people who assist with subject matter expertise through their education and experience. All witnesses are usually subjected to direct examination, cross-examination, and often redirect examination.
Evidence is any testimony, documents, audio recordings, pictures, video, or other objects submitted in a lawsuit as proof of the facts. Courts can rule some evidence inadmissible if it’s deemed unreliable or unfair. Attorneys for the parties can also object to testimony or questions ask of a witness for various reasons. The plaintiff has the burden of proof in civil cases. The burden of proof can be a “greater preponderance of the evidence,” or possibly “clear and convincing evidence.” Criminal cases have a burden of proof of “beyond a reasonable doubt.”
Closing Arguments involve both attorneys giving their closing arguments supporting their client(s) while “explaining away” any testimony provided by the other side. Thereafter, the judge or jury is excused to make the decision.
Decision. When verdicts are reached by the judge or jury, the court is reconvened and the decision is read for all to hear. If a jury can’t make a decision, it’s considered a “hung jury” and the case is dismissed.
Court decisions (other than those made by the Supreme Court of the United States) can be appealed (for example, if the trial judge made a prejudicial error) with cause. Many times in material lawsuits, plans for possible appeals are underway concurrently.
Additionally, traditional court proceedings can be avoided through arbitration or mediation where resolutions can be reached through a slightly more informal process, which is usually quicker and less expensive.
Next time you are confronted with the threat of litigation due to your [possibly innocent] careless or misguided behavior, you might consider settling the case rather than subjecting yourself to this long, expensive, somewhat structured, and stressful court-managed process.
Mike Brandly, Auctioneer, CAI, CAS, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at Mike Brandly, Auctioneer, Brandly Real Estate & Auction, and formerly at Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College, Executive Director of The Ohio Auction School, and an Instructor at the National Auctioneers Association’s Designation Academy and Western College of Auctioneering. He has served as faculty at the Certified Auctioneers Institute held at Indiana University and is approved by The Supreme Court of Ohio for attorney education.
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