For more than 20 years, I’ve assisted hundreds of clients who have never been involved with litigation. Think of a lawsuit as a process in which you’re traveling down a long and winding road towards your destination. In this case, your destination is a trial where a judge or jury will decide on contested facts. The following is a very brief overview of the litigation process designed to help you understand the road you’re traveling on. Despite what you see on TV or read in the media, a good sense of timing will help your through the process as well.
The journey begins by filing a document known as a complaint and waiting 20 days for the opposing party to file their response after they have been served with the complaint. They can either answer the complaint, or they can challenge the complaint. If an answer is filed, the answering party addresses the points raised in the complaint. The journey continues and the lawsuit proceeds onward. If they challenge the complaint (generally in the form of what’s known as a motion to dismiss) there is typically a detour where a court hearing is scheduled which deals with whether or not a claim has been asserted properly.
These issues can range from simple to extremely complex, but once there’s a determination on the issues, the court will typically order one side to file their answer or require the one filing the complaint to amend it to address any deficiencies and provide enough time to properly respond.
The Discovery Process
Once the lawsuit is back on track, the discovery process (which can begin at any point on the journey) is another phase of litigation that one cannot avoid during this trip. Discovery is the process by which the parties to a lawsuit exchange information and there are particular rules that must be followed during the exchange of information in terms of answers to written questions, providing documents, giving sworn testimony, or admitting facts as appropriate.
The discovery process can be simple, or complex, depending on your case. Discovery disputes are somewhat common and if they cannot be resolved amicably, they have to be argued and resolved by the court. However, the discovery process is very important in that it will typically force both parties to assess the strengths of their respective positions.
While there are many motions available to a party to move a case along, where the parties do not contest the facts in dispute (or agree that certain facts occurred), either party can move to end the voyage with what’s known as a motion for summary judgment, which is a way for a court to issue a determination of the case without a trial where there is no genuine dispute concerning the main facts of the case.
Where the parties do not contest the material facts, either party can ask the court to apply the law to the undisputed facts. Depending on your case, this can be an expensive but worthwhile detour before trial which educates the opposing side and the Judge with the facts and circumstances of your case. If the court agrees with the one moving for summary judgment, the case can be over and a final judgment can be entered on all the issues, or any partial issue, before the court. If the court does not agree, the journey continues towards trial.
Attempting To Settle
Once you approach your destination, the court will require that the parties attempt to shorten the journey by attending what’s known as mediation. This is a process where the parties attempt to settle their lawsuit by engaging in confidential settlement discussions facilitated by a neutral individual. The cost of mediation is typically shared equally between the parties.
This is an important stop along the long and winding road of litigation—it’s one of the few opportunities parties will have to jointly resolve their dispute and seek to control the outcome and exposure of litigation. If mediation is successful—an agreement can be entered into, the case resolved and done—the journey stops. If it is not successful, there is what’s known as an impasse and the journey to trial continues.
There is typically a substantial amount of work that needs to be done to prepare for your arrival before the judge or jury (more work, perhaps, if you’re presenting your case to a jury). In general, your attorney will be pulling together your facts, the law, evidence (documents, testimony, witnesses, etc.), crafting argument, and putting things together for the right presentation before the judge or jury.
Once you arrive at your destination, you get the privilege of presenting your case and positions to the trier of fact (judge or jury), and a decision is reached. The journey can continue after the judgment is entered, but that’s for another article.
While this article synthesizes the process, it must be understood that this journey will have detours, highs and lows, twists and turns, unavoidable potholes, wins and losses, and is an expensive, and sometimes long, emotionally tolling trip. While some excursions are shorter than others, this journey could last anywhere from a few months to two years or more, depending on the issues and nuances of your case.
If you’re involved with litigation, do not let what you’ve just read dissuade you. To ensure you arrive at your destination in best possible condition, it’s best to have to your eyes open while traveling.