The first step is to send what is known as a Demand Letter. The Demand Letter is sent to the party that owes you money and informs them that, 1. You have an attorney, 2. A demand is made for the money that is owed, and 3. If the money is not paid, that a lawsuit will be filed. At Zies Widerman Sutch & Malek, we send a copy of the lawsuit (the “Complaint”) with the Demand Letter. If the party refuses to pay the money, the Complaint is filed with the Court.

Once a Complaint is filed, the party who has been sued is served with the lawsuit and has 20 days to respond to the Complaint. If an Answer is not filed, a Default Judgment can be entered by the Court.

For claims between $1 and $100, the filing fee is $55. For claims between $101 and $500, the filing fee is $80. For claims between $501 and $2500, the filing fee is $175. For claims between $2501 and $5000, the filing fee is $300, and for all claims over $5000, the filing fee is $301. To file a counterclaim or a cross claim in any action requires a filing fee of $295. These fees are charged by the Court.

In Florida there is no automatic right to recover court costs and attorney’s fees. These costs and fees can be recovered, however, in certain situations. First, if a contract contains a provision that states that a prevailing party can recover fees and costs from a losing party, the prevailing party can recover fees and costs. Second, certain statutes (such as Civil RICO or Elder Abuse) contain automatic attorney’s fee provisions. Third, attorney’s fees can be recovered pursuant to an effective offer of judgment, or pursuant to a motion for sanction under Florida Statutes section 57.105 (consult an attorney for more information on these methods).

Sometimes a losing defendant will voluntarily pay a judgment entered against them. When that is not the case, there are various techniques that can be sued to satisfy a judgment owed by a judgment debtor. Two of the most important are Writs of Execution and Writs of Garnishment. A Writ of Execution commands the sheriff to seize and sell certain real or personal property of the judgment debtor, and a Writ of Garnishment commands a third party (such as a bank or employer) to turn over funds that would otherwise be due to the judgment debtor.

Consult with an attorney immediately. As previously mentioned, a defendant who has been sued has only 20 days to respond to a complaint, or a default judgment can be entered against them. The first thing an attorney can do is review the lawsuit to see if a Motion to Dismiss should be filed. A Motion to Dismiss challenges the legal sufficiency of the complaint, and more importantly, most Motions to Dismiss also toll the time to file an answer to the complaint until after the Motion to Dismiss is heard by the court. An attorney can also help determine if there are counterclaims that need to be filed. If a counterclaim arises from the same transaction or occurrence as a claim in the Complaint, it must be asserted as a counterclaim or it will be waived.

The best way to avoid litigation is to consult with an attorney prior to entering into a contract or other business relationship. Having an attorney review a contract can save a lot of time and money down the road. Also, even if an attorney is not involved, get everything in writing. Without a written document, it can be very difficult to prove the terms of an agreement, or to show that a party has breached an agreement. A detailed and specific written contract also helps prevent litigation by informing all parties of what is expected of them from the very beginning. If it appears that litigation may be imminent, it is important to involve an attorney as soon as possible. Often an attorney’s involvement can help resolve disputes, and even when it can not, an attorney can help ensure that you do not waive any of your rights and that your actions are timely and appropriate under the law.

The best idea is to file as soon as you have a claim. This will help when it comes to locating evidence and witnesses, and can ensure that the person you’re suing doesn’t hide or otherwise dispose of money or assets that could be used to satisfy your judgment.

In Florida there are Statutes of Limitations that control the time in which you must file your claims. If you do not file within the time limits (except in very limited circumstances) your claims will be forever barred. The statutes of limitation in Florida are as follows: Breach of a Written Contract: 5 years from the breach Breach of an Oral Contract: 4 years from the breach Products Liability claim: 4 years from the injury Personal Injury 4 years from the injury Fraud: 4 years from the fraud Liable / Slander / Defamation 2 years from the occurrence Medical Malpractice: 2 years from the malpractice* Specific Performance of Contact 1 year from the breach *This may be extended in cases where the malpractice is not, and could not, be discovered earlier.

Physical evidence, including contacts, documents, etc., can be collected and submitted to the court. Additionally, there are certain types of discovery that are authorized in Florida. A plaintiff may take the deposition of any person (party or witness) that has information about the case. A plaintiff may also require the deponent to bring certain documents to the deposition with them. A plaintiff may also submit written discovery to other parties in the case, including Interrogatories, which must be answered under oath by the party, Requests for Admissions, which must be admitted or denied by the party, and Requests for Production, which require the party to produce documents. There are also other types of discovery, such as Requests for Entry Upon Land, Requests for Inspections of Items, and Requests for Medical or Professional Examinations of Persons. Consult with an attorney for more information about all of these discovery techniques.

While there is no set formula, and many cases are settled long before trial, the average length of time from the filing of a Complaint to trial adjudication is about 18 months in Brevard County.