If you have never been involved in a lawsuit, or even if you have, the litigation process can appear mysterious, complex, and downright confusing. The goal of this article is to provide you with basic information of how a lawsuit progresses through the court system so that you can better understand what to expect at each stage of a typical lawsuit.
The United States, like many countries, is governed by the rule of law which is a set of principles or ideals for ensuring an orderly and just society. To function under these principles, the United States has three separate branches of government: the legislative branch, which makes the laws; (2) the executive branch, which enforces the laws; and (3) the judicial branch which interprets the laws and applies it to individual cases. The judicial branch is comprised of the court system at both the state and federal levels and it is here that a lawsuit is begun. Please keep in mind that the information presented below is a simplified version of the litigation process. There are exceptions and nuances at every stage and to every type of case that can occur during the process which a good attorney will know how to navigate.
The Lawsuit Begins
Court actions are governed by rules of civil procedure which can vary depending on whether the case is brought in federal court or state court but there are basic rules which apply to all cases. The person filing the lawsuit is the “plaintiff” and the person against whom the lawsuit is filed is the “defendant.” [1] The plaintiff begins the lawsuit by filing a complaint with the court and paying a filing fee. In the complaint, the plaintiff outlines the alleged facts of the case and the basis for which a legal remedy is sought. The plaintiff lets the defendant know that a complaint has been filed by serving a summons and a copy of the complaint on the defendant, usually through an individual called a process server. The defendant must respond to the complaint by filing an answer within a specified time after being served. In the answer, the defendant admits or denies each factual allegation and presents the reasons, called affirmative defenses, why the plaintiff is wrong. Sometimes a defendant may include a counterclaim or crossclaim with the answer. A counterclaim is a claim asserted by the defendant against the plaintiff that relates to the subject of the original claim alleged in the complaint. A crossclaim is a claim asserted by one defendant against another defendant in the case that relates to the subject of the original claim alleged in the complaint or in the counterclaim. The parties against whom a counterclaim or crossclaim is made must also file answers within a specified time.
The Discovery Process
Fact Discovery
Once the answer is filed (or in the case of multiple defendants, the first answer is filed), the case moves into the discovery phase, usually referred to just as “discovery.” The purpose of discovery is to clarify factual matters and “discover” any relevant evidence that the opposing party holds. Discovery typically begins with each party providing voluntary disclosures to each other. In the disclosures, the parties name their witnesses along with contact information and a description about each witness’s potential testimony. The parties must also disclose any documents they have that relate to the subject matter of the lawsuit, and the plaintiff must provide a calculation of the money damages sought because of the claimed injuries. The defendant must also provide a calculation of money damages if the defendant is seeking them through a counterclaim or crossclaim.
Once initial disclosures are exchanged, the parties review the evidence they have received from the other side and then decide what additional information is needed to support their legal theory of the case. That information may be obtained through depositions, through written discovery, and through the physical inspections of property and things. A deposition is an oral examination under oath in which a party or a witness is questioned by the other side. A court reporter is also in attendance who will place the witness under oath, take down all the questions and answers and then produce a written transcript. Depositions of any party or of a witness named by any party may be demanded.
The parties may also serve written discovery on each other. Written discovery consists of interrogatories, requests for production of documents, and requests for admissions. Interrogatories are a formal set of written questions sent from one party to another asking for information pertaining to the claims in the lawsuit. Interrogatories are often accompanied by requests for the production of documents which is another discovery device used to gain access to documents, electronic data such as emails and text messages, and physical items held by an opposing party which may be relevant to the case. Requests for admissions allows one party to ask another party to admit or deny the truth of a statement. Once fact discovery is complete, then expert discovery begins.
Expert Discovery
During this phase, each party, beginning with the plaintiff, will disclose to the other parties any expert witnesses he or she intends to use at trial to support the claims or defenses alleged. An expert witness is a person who is permitted to testify at a trial because of special knowledge or proficiency in a particular field that is relevant to the case. Although an expert is not necessary in all cases, many times it is helpful or even mandatory for a party to engage an expert to help prove their case to the jury. An expert witness can explain to the jury technical or other specialized information to support the claims and defenses or be used to show why the other side is wrong. For example, in a car accident case, it might be necessary to hire an accident reconstructionist to support one side’s theory of how the accident happened. In a medical malpractice case, it is usually mandatory to hire a medical expert to explain how a medical provider did not meet the standard of care and harmed a patient. Once the expert is disclosed, the other side will have the opportunity to request that expert to write a report on their opinions or ask to take the expert’s deposition to get an oral record of their opinions.
Ready for Trial
Pretrial Phase
When fact discovery and expert discovery are complete, one of the parties will file with the court a certificate of readiness of trial. A trial can be either a bench trial, where the case is presented to the judge who will decide the case based on the facts presented and the relevant law, or a jury trial, over which the judge presides and makes rulings on the evidence presented to the jury but leaves it up to the jury to decide the case.
The court will hold a scheduling conference to set a trial date and provide deadlines by which the parties must exchange the names of the witnesses they expect to call to testify at trial and the documents they expect to use during the trial. During this time, either party may file a “motion in limine” with the court to ask the judge to prohibit the other side from presenting certain witness testimony and certain documents at trial. There are several reasons the parties may file these motions, but the primary reason is to keep information that could harm the party’s case from being presented to the jury. When the pretrial phase is finished, it is time for trial.
Trial
The trial process is much more complex than can be presented here but a brief overview may be helpful. Right before the trial begins, the parties will gather in the courtroom to select a jury to hear the case (if a jury was timely requested). When the selection is complete, the parties then present their opening statements, first the plaintiff and then the defendant, in which each party describes their theory of the case and tells the fact finder (judge or jury) what evidence they will present, what they hope to prove, and why the fact finder should decide in the party’s favor. Once opening statements are finished, the parties present their case through witness testimony and tangible evidence. After each side has presented all their evidence, then each party gives a closing statement and tells the fact finder why it should decide the case in the party’s favor. In a jury case, the judge instructs the jury on the law that applies to the dispute and asks the jury to apply the facts to the law and decide the case. The jury is sent into a separate room to deliberate by considering the evidence presented and deciding who should win based on the law. In a bench trial, the judge considers the case and rules, either orally from the bench or in a later decision, sometimes written. Once the trial is over, one of the parties may decide to appeal the case because the jury (or the judge) made a legal error. An appeal is a process in which a higher-ranking court is asked to look at the matter and decide if what happened in the lower court was correct under the law.
Other Options
The primary end goal of the litigation process is a trial but often the parties decide that they would rather settle their dispute some other way to avoid the expense of trial and obtain a quicker resolution. Mediation is one way to resolve a dispute and it may be conducted at any stage of the litigation. It is a process in which the parties select a trained mediator who works with parties to reach a compromise which resolves some or all their dispute. Sometimes the parties voluntarily participate in mediation and other times the court orders the parties to mediate their dispute to see if it can be resolved without further court involvement. Mediation itself is non-binding, meaning if the parties do not reach a compromise, the case proceeds toward trial.
Conclusion
As you can see from this overview, litigation can be a long and complicated process. It is often an emotional and stressful experience for the parties because of what is at stake, whether it’s their business, their reputation, or the health of a loved one. While sometimes parties will choose to represent themselves in court, a good lawyer will navigate the legal system for you and can advise you of your rights under the law, represent you in court and in private legal matters, communicate with the other lawyers and judges, and interpret laws, rulings, and regulations for you or your business. There are many more aspects to litigation but hopefully, this overview provides you some idea of how litigation works and what to expect if you are ever involved in a lawsuit.
[1] If the lawsuit is a petition, such as in a divorce case, the person filing the lawsuit is the “petitioner” and the person against whom the lawsuit is filed is the “respondent.”
