What Happens During a Lawsuit
Most of us have seen or maybe even experienced different parts of the litigation process. The courtroom trial is perhaps the one aspect of a lawsuit with which we are all most familiar, usually from television and movies. Similarly, many people are familiar with depositions, where a party or witness is asked questions under oath about the facts, typically in a lawyer’s office. But while those are two extremely important events in the life of a lawsuit, there are numerous other significant aspects of the litigation process. These phases generally include what is referred to as the pleadings phase, discovery, motion practice, trial, and post-trial. Whether you are considering commencing a lawsuit, or are already involved in one, it is important to understand and discuss with your lawyer what to expect and how to strategize for each aspect of a lawsuit.
The Pleadings Phase
The earliest part of a lawsuit is called the pleadings phase and typically consists of the Complaint and the Answer. The Complaint is the document prepared and filed by the attorney for the party bringing the lawsuit (the plaintiff) and spells out each of the legal claims that are being brought against the party being sued (the defendant), as well as the facts and allegations that support these legal claims. The Complaint must be well-pleaded or is subject to being dismissed by the Judge.
The Answer is the defendant’s formal written response to the Complaint, which in answering the plaintiff’s allegations typically either admits or denies each allegation, or states that the defendant lacks sufficient information to respond. The Answer will also contain certain defenses which often must be stated in the Answer or will be deemed to have been waived by the defendant. In addition, the Answer may also include claims that the defendant has against the plaintiff, or even against others whom the defendant believes should be included in the lawsuit.
In general, the Complaint and Answer establish the scope of the lawsuit and, therefore, it is important that they be drafted properly by experienced legal counsel.
The Discovery Phase
The next major aspect of a lawsuit is the discovery phase although, as discussed below, there may be one or more motions (requests that the Judge grant certain relief such as dismissal of the case) prior to discovery being commenced. Discovery involves each side seeking from the other information related to both the plaintiff’s claims as well as the defendant’s defenses. Discovery can be obtained not only from the parties to the lawsuit but, also, from non-parties if they have information pertinent to the claims and/or defenses. The scope of discovery can be very broad and may not only come as a surprise to the litigants but also be seen as intrusive if not disruptive to one’s life and/or business. Parties from outside of the United States who are not used to U.S. litigation can be shocked as to how broad and far-ranging American discovery can be.
The two main mechanisms for obtaining discovery are, (i) requests for documents and categories of documents and, (ii) depositions, although there are other forms of discovery as well. Documentary discovery takes the form of written requests for information and typically includes information stored electronically, including emails, text messages, WhatsApp, Facebook, etcetera. Due to the volume of electronically stored information, often the assistance of an expert in searching for and retrieving electronic information is required.
Depositions are where a party or witness is asked questions under oath by the other side’s attorney about the facts, typically in a lawyer’s office and outside the presence of a judge or jury. Like documentary discovery, depositions play an important role in a litigation and can help tip the scales in terms of who wins and who loses. Moreover, many cases will settle due in large part to what has been learned in the discovery process.
As mentioned above, motions are formal requests to the Judge for specific relief. One party files a motion and the other side has an opportunity to oppose it. Typically, the party that filed the motion then has a chance to respond to the opposition. There are numerous types of motions and many of them can be made throughout the life of a lawsuit. For example, a motion can be made early on in the case by a defendant asking the Judge to dismiss the case because the other side’s pleading is defective. Or a motion can be made by a party asking the Judge to permit them to amend their pleading. There are motions concerning discovery disputes, such as when a party maintains that the other side did not fully comply with its discovery obligations. And there are motions by either or both sides asking the Judge to grant judgment in their favor without the need for trial, referred to as a summary judgment motion. These are just a few of the myriad types of motions that can and often are made during the course of a lawsuit.
The vast majority of civil cases are resolved prior to trial, either by the Judge granting a motion that determines the outcome or, as the result of a voluntary settlement between the parties. But when a case does go to trial it is a vast undertaking for both sides. Sometimes a case is tried before a jury and other times before only a judge. Either way, the parties will present their evidence and witnesses, who will be subject to cross-examination. The applicable Rules of Evidence will govern and determine what evidence is actually allowed to be considered by the jury or judge. It is not uncommon for evidence which a party believes important to its case to not be considered by the Court based on the Rules of Evidence. Even simple trials with few issues can be complex affairs.
Even when a trial is over in that the jury has decided the case, it is often not the end of the case. There are motions that a party can make to reverse or limit the jury’s decision. And there is always the possibility of an appeal to a higher court.
The above description of the main phases of a lawsuit only scratches the surface of what is actually involved. Even though most cases never go to trial, experienced lawyers will begin from day-one thinking about what a trial will ultimately look like, how it will play out, what the other side will argue, and how a jury or judge will react to your case. The experienced lawyers at Kravet & Vogel will strategize and work with you every step of the way to maximize your potential for a highly favorable outcome.