Serving on a board may lead to being served with legal papers

Most people do not have contact with a lawyer except under the following circumstances: closing on a house, traffic court, getting divorced or family reunions. However, if you are a property manager or have served on a board, you have a higher likelihood of being involved in litigation than the average person.

Whether a "concerned owner" sues board members for towing his car or someone slipped on the ice and broke her "keister," you may have to answer interrogatories, produce documents, give a deposition, or even sit on a witness stand. By not being properly prepared, even a well-intentioned answer can turn into a bombshell if misinterpreted or too much information is disclosed.

In the initial stages of a lawsuit, a complaint is filed that is supposed to contain well-pleaded facts; after all the defendants have been served with a summons, motions may be filed, but eventually the complaint is answered and discovery commences.

Interrogatories: This is a lengthy set of questions that are posed to all parties trying to probe and extract essential information. Each party should answer the interrogatories as thoroughly as possible and then legal counsel may rewrite some of the answers to make sure that it is legally and factually correct before it is filed.

Document production: Whether by request or subpoena, all documents that are requested (unless there is a legal reason to keep them confidential) must be produced. Once a case is filed and if it does not settle quickly, a party should start to assemble their documents and have them copied because at some point they will be requested and usually it is at an early stage of the case.

Once again, counsel will organize the materials once they are produced and also file appropriate objections to any request that is unreasonable, such as a board member's personal financial records in a case involving a defective roof.

Depositions: This is the taking of sworn testimony before a court reporter. Sometimes it is even for evidentiary purposes in lieu of trial testimony, although that type of deposition is usually necessary when the witness is aged, or ill.

It has been said that "the deposition is the trial." This is why it is most important to be well prepared with regard to the facts as well as following attorney prompts. This is also a juncture where cases often settle due to either a rock solid deposition testimony or a disastrous performance; either way, the information is now on the table.

The deposition testimony is transcribed and may be written up to use to support a motion, or may be used to impeach a witness on the stand at the trial when statements in the deposition are inconsistent with trial testimony.

Preparation: Whether plaintiff or defendant, a case will be won or lost on the testimony of witnesses and documentary evidence. A well-prepared witness will make or break a case. Since plaintiffs have the burden of proof, their job is more difficult than the defense, whose job it is to poke holes in the plaintiff's case and to raise doubt.

Being negative is always easier.

Settlement conference: This is where more cases are resolved than at all of the aforementioned stages. If all parties and their lawyers can be locked in one room - with or without a mediator - long enough, the case will settle. Unfortunately, you cannot lock people in a room for six weeks. That would constitute false imprisonment! (I was once involved with a federal case where the judge ordered all the parties into a conference room and not to leave except to break for lunch until the case settled. We settled the case after lunch.)

In settling a case, or having a mediated settlement (a mediator is a neutral third party who helps facilitate settlement), both sides are going to be forced to give up something to get to X. People have to forego emotions and be willing to put on the table what is minimally acceptable. If a party's primary motivation is that they want their day in court, then that case will not settle. However, since most cases do settle, this only happens in a small number of cases.

Considering the length and waste of time, the enormous potential costs and the fact that even the best case can run into a roadblock by a bad jury or arbitrary judge, settlement if at all possible is the wiser way to go.

Cross-examination: This is the part of a deposition or a trial where the opposing attorney gets to ask questions based upon the statements made on "direct" examination. This can be a powerful experience since this attorney will be picking and probing for flaws and inconsistencies to break the case open. Sometimes trial attorneys can be aggressive, sarcastic or downright mean. No matter how much you prepare in advance, if you have not been through this before, it is mentally grueling. It is the job of your attorney to provide some protection from abuse or self-incrimination. Sometimes judges give trial attorneys a lot of latitude, so be prepared.

This is a brief summary of the world of litigation for people who are involved with or work for associations. No matter how much people want to believe, it is not like TV or the movies. Real life can be even more interesting.

Jordan Shifrin is an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. Send questions to jshifrin@ksnlaw.com. This column is not a substitute for consultation with legal counsel.