Updated: Mar 12, 2019
CIVIL PRACTICE And PROCEDURE ( Part 1) BY MELVIN PEREZ . As a practical matter, lawsuits start with a problem. The problem can be between two people or with many others. The problem might also involve the government or its agencies ( like the Florida Department of Corrections ) or a business, or all the aforementioned. Before people sue, they usually try to resolve the problem on their own. In turn, when that does not work, a lawsuit is a way to resolve the problem and enforce its solution. Depending on who is filing a suit, some form of prior exhaustion may exist or be mandated. For example, a prisoner is required to exhaust the grievance procedure before filing a lawsuit. Most legal remedies for prisoners mandate that prisoners exhaust their administrative remedies before filing a 42 U.S.C.1983 Civil Rights Lawsuit, mandamus, and other similar actions. This exhaustion procedure can be found in Florida Administrative Code, Chapter 33-103. The most common question asked by prisoners and other people regarding civil litigation is "Can I sue for that?" The short answer is "Yes". However, the most important question is whether or not you will win. This depends on many factors. REQUIREMENTS. The factor that should be considered before filing a lawsuit is the potential for winning your lawsuit. Some people call this having a good case. In the legal area it is called stating a claim for relief. In order to have a good case, you should be able to meet some requirements. Put simple, to have a chance of winning or even having a case you should have: 1) A problem 2) A loss 3) A law. You can say that if you are missing any of these three requirements, you don't have a case, even if the other parts are very strong. I will explain these requirements closer. A PROBLEM. Generally, you need a problem that is either an ongoing problem or has already happened. The law doesn't provide solutions to potential problems that may or may not happen in the future, except when there is evidence that the potential future problem is part of a current dispute. A LOSS. Similarly, you need to have suffered a loss or been hurt somehow. In other words, the person suing has to have some kind of damage. If you have not been hurt or lost something, you don't have a case. Now this loss could be that a FDOC staff did not give you you're mail, might have just ripped your photos or some other type of wrong. The loss could also be that you were placed in confinement without due process, denied visitation privileges by the use of an unconstitutional procedure or simply the mailroom staff just sent your issue back without due process of law or without being rejected by the review committee. These examples are just that, examples. Any loss can be the basis for a lawsuit. A LAW. Next, there needs to be a law of some sort that says that the kind of damage you suffered is something where the law allows for a remedy. For example, if there is a problem and you have been damaged due to the problem, there has to be a law that addresses that problem. The most common place to find this law is looking at cases decided by the courts. This is called decisional law or common law. The cases show you what the elements are to prove your claim and how someone did or did not prove these elements. ELEMENTS. Once you've got these three requirements, now you need to take one more step to ensure you have a good case. That is, you need to make sure the facts of the situation meet the requirements of the law that provides for your problem. To see whether that is true, you must analyze your problem by breaking down the relevant law into its smallest parts, called elements and apply your facts to each element. If the facts don't match up with all of the elements of the law, there is no case under the law. It is very important to know that when the facts change, so does whether or not there is a case under the law. That is why it is important to tell your attorney, jailhouse lawyer or law clerk the whole truth when you meet if you are not doing it yourself and to include even minor details. TIME ISSUE. Often prisoners want to know how long it will take to know the outcome of the lawsuit. The true answer is that there is no telling how long any case will take. So many factors go into determining when a case ends, which include: A) How busy the court is. B) If the court sets its own deadline that all parties have to follow. C) How many claims you raised. D) How willing both sides are to compromise. E) How much time you have available. F) How complex the problems are you want to solve. G) What kind of problem you have and H) How many parties are involved. To illustrate, if the court is really busy, your case is going to have to wait. The court will not be able to place it at the top of the case pile unless there is a very compelling reason. A compelling reason could be that a party is seeking a preliminary injunction while the case is decided or an emergency injunction. Further, if you have a case involving 20 defendants, it is going to take more time to sort through than if there were only two defendants. Therefore, if the other side is unwilling to settle or compromise, you can spend a great deal more time on a lawsuit than you had originally planned. Likewise, the longer the case takes, the more money it will cost you. However, you are, to some degree, in control of how long the case will take in that you can always settle the case at any time. That is, if the other parties are willing to settle. If you have time on your hands, you might be more willing to let a case play out over a long period of time. Beside, a lot of courts like to delay pro se ( you as your own lawyer) prisoner cases anyway or FDOC attorneys use the delay tactic to delay the resolution of the case. THE GOAL. Before you file a lawsuit you should know what you really want to achieve. It should be easy to say what you really want to achieve with a lawsuit, you want to solve the problem that brought you to court in the first place. Yet, that is often not the only goal you might have in going to court. For instance, you may see yourself as an advocate of justice. You may want to get back at the correctional officer who lied against you in a disciplinary report or beat you down until you were almost dead. You may see this as a way to make some money. But be aware that the judge who must read the lawsuit might get the idea of motives from reading the lawsuit. Be simple, direct and as professional as possible. It is hard not to show emotion when writing about the types of abuse that are common in the Florida Prison System, but if the judge believes that your lawsuit is malicious or frivolous it will be dismissed. Keep this in mind when writing your lawsuit. Importantly, lawsuits take up a great deal of time, money, and energy. The more honest you are about your goals in bringing a lawsuit, the better able you will be to make a decision about how and when to end it.
In upcoming writings, I will discuss other important areas of civil litigation. Until then, keep your head up and good luck with your legal claims.
Melvin Perez # 11781
Current Release date :2031