August 2024 CT

CIVIL LITIGATION... from page 32.

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as the bulk of the evidence will be in the form of documents. However, in a construction defect action for instance, this phase is of the utmost importance and would involve the retention of professional engineers, architects, cost estimators, and/or potentially other “experts.” These experts are the profes sionals that are necessary to identify the defects throughout the community, opine on the causes, remedies, responsible parties, and damages. • Take depositions of fact witnesses. Fact witnesses are those persons who are either parties to the action or non-parties with relevant knowledge. A depo sition is a judicial proceeding that is typically held outside of court where one party’s attorney asks questions of either a party witness or non-party under oath regarding the claims at issue in the action. Depositions are used, among other reasons, to discover evidence and facts, test legal theories, and memorialize testimony for use at trial. Fact witnesses may only testify about their personal knowledge and may not offer opinions or conclusions. The Final Act (except when it’s not) – Trial After the parties complete all discovery, the action moves into what is called the “pre-trial phase.” This phase can include attempts at settlement through mediation, trial preparation, dispositive and “in limine” motions. Mediation is a form of alternative dispute resolution. The parties hire an independent mediator that acts as a go-between to the parties to help bring them to an early resolution avoiding the need and costs of trial. A motion refers to a party’s request to “move” the court to take a requested action. Dispositive motions are those motions that would resolve the matter either

in full or part. This type of motion is generally referred to as a motion for summary judgment. These can only be granted by a court if there are no material (critical) facts in dispute, there is no need for a jury to consider the facts, and the only issues are legal, which are for the court to decide. A motion “in limine” (that’s Latin fancy talk for before trial), is filed for the purpos

“This phase can include attempts at settlement through mediation, trial preparation, dispositive and ‘in limine’ motions.”

es of limiting, excluding, or setting specified restrictions on the use or introduction of evidence. For example, defendants routinely file motions “in limine” to bar expert testimony in construction defect actions in the hopes of either limiting or altogether eliminating a plaintiff’s proofs (evidence) at trial. Following pre-trial is…trial. This is the time for the parties to put before the court, and most importantly, the jury, the facts and testimony gathered in

Community Trends ® , Drew Podolski, Esq., Editorial Chair

For past editions from 2017-2021 visit www.cainj.org.

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AUGUST 2024