The litigation process can be daunting. It is likely one of the most stressful periods of anyone’s life. It is filled with uncertainty and sometimes it is difficult to understand exactly why things are happening the way they are. We can help. We guide our clients through the litigation process every step of the way. As can be seen below, litigation is a convoluted process that takes time and experience to be successful. This article is a brief summary of the litigation process which is intended to provide the general steps for most types of litigation.
The Litigation Process
Most companies facing litigation for the first time don’t know what the litigation process entails. In fact, I encounter many misconceptions about the various steps of the process and what each step entails. The most significant misconception is the length of time litigation takes. Substantial cases can take years before getting to a trial date. That is because each of the steps in the litigation process has to be addressed before even getting to trial. Litigation is broken up into four essential steps. These steps are the pleadings, discovery, pretrial procedures, and trial. At any time during this process, the parties can discuss settlement. Most cases do not take years to conclude because a settlement is most often reached in the early stages of the litigation process. Indeed, a significant portion of these cases settle at some point.
The pleading stage involves filing a complaint and the defendant answering the complaint. In this stage the complaint puts companies on notice of what the alleged facts of the lawsuit are and what the company is being sued for. Once filed, the complaint is served on the defendant or defendants and the litigation starts.
The response to a complaint is most typically an answer. In the answer, the defendant or defendants admits or denies the allegations in the complaint. This sets the stage for the next step of the process, discovery.
However, there is one exception to filing an answer. If the complaint lacks any legal basis, the defendant(s) can file a motion seeking to have the complaint dismissed. It is important to note however, that this only applies to legal issues. Factual disputes do not permit the complaint to be dismissed in this fashion. Factual disputes have to be proven during the litigation process. So, even if the facts in the complaint are not true, the lawsuit must continue unless there is no legal basis for it to do so.
The discovery process is the step in litigation when the parties conduct their investigation into the claims and defenses of the action. This process contains four elements. The parties can submit written questions to the other parties that have to be answered under oath, called interrogatories. The parties can request documents and things from the other parties. Subpoenas can be issued to non-parties to obtain information, whether it be by deposition or through documents. Finally, depositions are taken.
Depositions are in-person interviews under oath. The parties sit in a room with a court reporter and ask questions of the deponent. The deponent has to answer the questions under oath. Outside of the trial, this is the only in-person step to the process of litigation besides, perhaps, mediation.
Discovery is the longest step in the litigation process. Parties have 30 days to respond to discovery requests, and the responses are rarely on time. Moreover, the number of depositions needed, and the time it takes to prepare for them can take months of time as well.
After the discovery process, there are typically pre-trial motions filed to eliminate issues or to narrow issues for trial. These motions take a substantial amount of work and tend to summarize every issue and the legal authority that supports the party’s position on those issues. Moreover, these motions tend to summarize all the facts that were found during the discovery process. In other words, these motions provide a very good summary of what to expect at trial even if the motions fail.
The final step is the trial. Trials can be before the judge, a bench trial, or a jury. Unlike criminal trials, civil litigation trials do not require evidence beyond a reasonable doubt, but rather a preponderance of evidence. This means more likely than not, the party should prevail. Reducing this to a mathematical proposition, this means 50.1% more likely that one party should prevail over the other party.
The road to the trial has steps in and of itself. Several documents have to be drafted. These include proposed questions to ask potential jury members, voir dire, and proposed jury instructions. These are submitted to the Court who chooses which portions of the parties voir dire and jury instructions the Court will use for that particular trial.
In addition, motions in limine are often submitted. These are motions asking that the Court exclude certain evidence from the trial. Oppositions and replies in support to these motions also have to be prepared.
These pre-trial submissions require a massive amount of effort and time to prepare. However, these documents set the tone and the limits of the trial and are absolutely necessary.
As you will notice, settlement discussions are not included in the litigation process. Many people believe such discussions can only occur during a certain time frame. This is not true. Settlement discussions can occur at any time from before the lawsuit is filed, to while the jury is deliberating. I have had several instances where a previously intransigent party attempted to settle while the jury was out deliberating. In addition, often times the party can reasonably discuss settlement before the lawsuit is even filed. Settlement discussions can occur at any time.
The litigation process is long and involved. It requires diligence. Whether in the federal or state arenas, it requires intimate knowledge of the rules of each, which differ substantially. Each step of the process provides its own challenges. Don’t try to do this alone. Having knowledgeable and experienced counsel can only improve your results.
Contact us for a free consultation to discuss your case.