Litigation Process Explained
Note: this is for educational purposes only
Commencement and Pleadings. Generally, a lawsuit is commenced by filing and serving a Summons and Complaint. The Defendant must serve an Answer within 20 days if served personally or 30 days if served by any other means.
Discovery Process. Discovery is the process of investigating and gathering documents and evidence in support of your claims or in opposition to adversary’s claims. The timeline varies greatly based on complexity, cooperation of parties and other factors. Typical discovery tools/forms include:
- A Demand for documents
- Combined discovery demands (i.e. demand for witnesses, insurance information, etc.)
- Interrogatories (set of questions which must be responded to under oath)
- Depositions (basically an interrogation in a room with a court reporter, under oath)
The length and expense of the discovery process will vary greatly from case to case depending on several factors: (1) the complexity of the case (2) extent of the documents being reviewed or demanded (3) number of material witnesses (4) whether the opposition is being responsive or cooperative to our demands (5) whether there is a dispute regarding discovery demands and/or responses to discovery demands (6) the Court where the case is brought.
If issues with discovery cannot be resolved between the parties, then one or both of the parties may file a “Discovery Motion”.
The discovery process can take months and in some cases years depending very much on the cooperation and availability of the parties, the number of witnesses, and the Court where the lawsuit is filed.
Motions. Motions are applications or requests to the Court to do something or take some action based upon a statute or rule of law. So this includes things such as Motion to Dismiss or Motion for Summary Judgment, or Motion for Injunctive Relief. The time for a Court to make a decision on a motion can take weeks or months. It varies depending on the motion, the Court, and even the Judge.
Trial. When discovery is complete the plaintiff is required to file a Note of Issue with the Court, which tells the Court that the parties are ready for trial. Once filed the Court will set a date for a Pre-Trial conference at which time the Court will set a date for trial. Trial is not something that happens immediately. Depending on the Court and the Judge it can be in a matter of months from when the Note of Issue is filed, or it can be even up to a year.
When Do You Need to Come to Court? The only time you need to appear in court is for trial or a special hearing if you are a required witness, or the Court requires you to appear. Clients often ask if they need to appear for conferences, compliance conferences, preliminary conferences. The answer is “NO”. Conferences are not trials. In most courts we aren’t even before a judge but instead dealing with procedural issues before a magistrate or referee where clients are not allowed.
A Note About Trials
Most cases never get to trial because (1) the parties settle or (2) the case gets dismissed
***Even though most cases never make it to trial, it is worth noting that Trial preparation is intensive and therefore very expensive, generally. It involves preparing exhibits, preparing witnesses, preparing questions and determining strategies based on what occurred during the discovery process.
Important Litigation Events
Conferences. Courts require numerous conferences during the course of any lawsuit. The purpose of these conferences is to determine a possibility for settlement, determine if there are any issues in the discovery process, set deadlines, and extend deadlines if necessary.
Motions. A motion is an application/request to the Court to do something. As a practical matter all motions impact the litigation schedule and expense.
For example, a motion to dismiss is asking the Court to dismiss certain causes of action because they have no legal or factual merit.
For example, a motion for summary judgment is asking the Court to render a judgment now in your favor because there are no issues of material fact.
There are 4 main types of Discovery Motions: (1) a Motion to Compel Discovery Responses (2) a Motion to Strike the Pleading for Failure to Comply with Discovery Demands (3) a Motion to Preclude the Admission of Documents at Trial and (4) a Motion for a Protective Order.
The cost of any motion will depend on the facts and complexity of the issues.
How Long Will Your Lawsuit Take? Unfortunately that is impossible to predict with any real degree of certainty. It will depend on the complexity of the case, court ordered deadlines, the opposing party and their level of resistance/cooperation, your availability and responsiveness, and how busy the Court is, meaning how many other cases does the assigned Judge have to deal with.
