Civil litigation is an argument in extreme slow motion. Instead of having people screaming at each other face-to-face (or worse), litigation allows people to carefully consider the issues and explain why their views are correct.
There are also many complex rules governing the process. The application of these rules can make or break a case regardless of who is right on the merits.
While you are dealing with all of these painstaking issues over a significant period of time, it can be difficult to see where you are in the grand scheme of things–you can’t see the forest from the trees. In this post, I’m going to provide an overview of the litigation process.
I think understanding this process will help you stay on track as far as where the case is in the process and where it is going.
Overview of the Litigation Process
The lawsuit includes five basic phases:
- Pleadings
- Dispute Resolution
- Discovery
- Trial
- Post-Trial
I will briefly describe each of these phases below.
Phase 1: The Pleadings
A lawsuit begins by the filing of a “Complaint.” The Complaint explains why you are there, what happened, why you are entitled to relief, and what relief you would like the court to order. It is the plaintiff’s burden to prove that they are entitled to the relief requested.
The defendant will have an opportunity to respond to your complaint. The most straightforward response is made by filing an “Answer.” The Answer goes through the Complaint line-by-line and states whether the defendant admits or denies each statement. The idea is that this narrows the issues. The Defendant also gets to ask the court for relief, which means the defendant will ask that the Complaint be dismissed.
The Complaint and the Answer are “the Pleadings.” They are called Pleadings because they state what each party is pleading for the court to do. The Pleadings frame the issues that are going to be addressed throughout the remainder of the litigation. The most basic cases will involve a complaint and an answer, but cases can get bogged down in even just the pleadings stage.
If you want to dig deeper into the Pleadings Phase, I will provide more detail in a future post. But for now, realize that a lot can happen in the pleadings phase alone.
Once the pleadings are on file, the court will enter a scheduling order which will provide direction and deadlines for the next phases of the case. In many jurisdictions, the party will actually have a conference with each other or the court to discuss these issues.
Phase 2: Dispute Resolution
When your kids tattle on each other, what do you say? Probably something like, “You need to go figure this out on your own and learn to get along.”
Courts basically do the same thing. Civil cases are all about resolving disputes between parties. The courts want to see you resolve your own problems. Pretty much every court is overburdened with cases. We are also using public resources to resolve private disputes. In my experience, judges want to help facilitate a fair resolution just as much as they want to oversee a heated trial. Everyone is literally better off if people can amicably resolve their disputes outside of court. Therefore, the judge will either encourage or order the parties to participate in some form of “Alternate Dispute Resolution” (ADR)–dispute resolution mechanisms other than the court.
ADR options include negotiation, mediation, or arbitration.
Negotiation
Once the case is started, there is a rule that each party must meet to have a good-faith discussion about the possibilities of settlement. The idea is that the court wants to see if the attorneys can negotiate before the next steps of litigation, which may utilize more court resources. Unfortunately, my experience is that most people just go through the motions in these meetings.
Mediation
In mediation, a trained mediator visits with the parties to see if they can broker a deal to resolve the issues. The mediator does not make any decisions for the parties and is only there to facilitate productive discussion. The court will also encourage, and probably order, the parties to participate in mediation.
Generally, all parties to the mediation evenly split the costs for the mediator’s time. Although mediation will be discussed at the beginning of the case, it may not actually happen until just before trial. The courts know that sometimes parties need to conduct discovery (phase 3) in order to make a more informed decision about settlement.
Arbitration
In arbitration, an arbitrator is selected to hear the issues and make a final determination. Arbitration has less rigid rules than the court and will have more flexibility in scheduling. The idea is basically, “Give me the gist of your positions and the evidence. I’ll look it over and decide this for you.” A court cannot order you to arbitrate unless there is a statute or contract between the parties that allows such an order.
Similar to mediation, the parties will typically split the costs of the arbitrator’s time. If an arbitration is order, the court case will either be dismissed or put on pause while the arbitration goes forward.
Whether it is by negotiation, mediation, or arbitration, the reality is that most civil lawsuits are going to resolve at some point prior to trial.
Phase 3: Discovery
There are two main objectives in discovery. The first is to find and gather all relevant information. The second is to make sure you know how you are going to get the relevant information admitted into evidence.
To help you accomplish these goals, the rules allow you to obtain access to information that you may not have been able to obtain prior to litigation. Here are the main discovery mechanisms:
- Interrogatories: written questions you want the defendant to answer.
- Requests for Production: written requests that the opposing party give you copies of documents or make premises available for inspection.
- Depositions: interviews of witnesses under oath while recording their testimonies.
- Subpoenas: a document that requires a person who is not a party to the case to answer interrogatories, requests for production, or sit for depositions.
Discovery is often the most expensive, frustrating, and longest part of a case. There can be a lot of gamesmanship in the discovery process. Parties may try to hide information or just fail to get it together (because it can take a lot of work). You have to be somewhat relentless in your pursuit of information while also balancing concerns about expenses and burdens. The court has to get involved in discovery disputes, which no judge particularly enjoys.
Phase 4: Trial and Judgment
Once you have gathered all of the evidence, the only thing left to do is to present the evidence and your arguments. Cases can be decided by a jury (a jury trial) or by the judge (a bench trial). In a jury trial, the jury decides what facts to believe and what money to award, if any. Meanwhile, the judge makes decisions such as what evidence is admissible. In a bench trial, the judge decides everything.
It is also possible that you think you should win the case without having to go to trial. If that’s the case, you would file a “motion for summary judgment.” In this motion, your goal is to convince the court that there are no factual disputes that require a trier of fact to decide who’s telling the truth. You must then convince the court that based on the established facts, you are entitled to relief.
Phase 5: Post-Trial
Once the case concludes, the winner has to collect. I often tell my clients that winning the case can sometimes be easier than collecting on the judgment. You may even have to come back to court to try to use the court’s powers to collect.
The loser also has option. The losing party may appeal to a higher court or file a variety of motions. An appeal argues that there was some mistake made during the litigation process or at trial. It is of course possible to win the trial and lose the appeal.
Conclusion
This is a basic summary of the 5 phases of litigation that apply to every case. There can be many twists and turns during litigation. You could be in the discovery phase and someone decides they want to revisit what is in the pleadings. ADR is something that might not happen right after the pleadings but may occur after discovery. There are countless types of motions that may be filed during the proceedings at all stages.
Even though litigation can get messy, understanding where you are in the process can help you make sure you don’t get lost along the way.
