Overview of the Litigation Process

Litigation is the process by which disputes are settled through a court of law. The proceedings or legal actions taken are referred to formally as the litigation process. This process allows parties to resolve their differences before a neutral trier of fact. It may be a trial before a jury or a bench trial before a judge or magistrate. All kinds of legal issues such as personal injury claims, divorces, and contractual disputes are just some of the controversies litigated before a judge or jury.

Consider Legal Options

Prior to initiating a lawsuit, pre-litigation considerations are important in deciding whether to file a case. It starts with the initial meeting with an attorney. At that meeting, there will be an assessment of the strength of the case. During this time, facts will be gathered, legal options will be discussed, and potential litigation will be explored. Litigation costs such as court fees, expert witness fees, and deposition transcripts will be explained. The risk of either a summary judgment motion or a bad verdict must be considered. Presuit settlement must also be discussed as an alternative to litigation. It is less costly and less stressful. Mediation is also a consideration due to its lower cost and informal setting. Always keep all documents and gather all evidence that supports the case. If litigation is contemplated, notify all parties to preserve the relevant evidence. Without that evidence, the court may dismiss the case.

Filing the Lawsuit

No two lawsuits are the same but they all follow a general process. To initiate a case, a person or business (referred to as the Plaintiff) files a complaint with the court. It informs the party being sued (referred to as the Defendant) about the Plaintiff’s case. Complaints will identify the parties involved, lay out the legal grounds for each claim, and state the remedy or compensation the plaintiff is asking for. There are various rules that must be followed when it comes to the format and content of the complaint .A complaint outlines the plaintiff’s case asking for relief by way of remedy or compensation. It will include both proper jurisdiction and venue. Once filed, the Defendant will be served a copy of the complaint. Once received by the Defendant, the Defendant must answer the complaint within a certain period of time and raise defenses. If applicable, parties will file counterclaims or cross claims against the Plaintiff or other Defendants. All necessary parties are brought into the case. The Plaintiff has the burden of proof to prove their case. If there is insufficient evidence, the defendant can ask for a dismissal.
Pleadings are the set of initial documents that establish a case .In a civil lawsuit, pleadings are documents filed with a court that state the positions of the parties. They generally consist of a complaint, answer, counterclaims, and cross claims. Once filed, they require a response within a certain time frame. They shape the litigation and assist the court in understanding the case by outlining the claims, defenses and alleged facts. Complaints must be served on the opposing party. Proper jurisdiction exists when a court has both personal and subject matter jurisdiction over the defendant. “Personal” means the defendant has some connection to the state where the court is located and “subject matter” means the court has jurisdiction over the legal issues in the case. Appropriate venue requires that the court be a convenient and fair location for all parties. The complaint will state the facts and legal grounds supporting the plaintiff’s case. After the filing, the court will serve the complaint by a summons requiring the defendant to answer it within a certain time limit.

Completing Discovery

Once answered, the parties will enter into discovery. Discovery is an opportunity for each party to investigate the facts. The discovery process is one of the more complex parts of any case. It involves gathering information from the opposing parties with the authority of the court. That information can be obtained by depositions, interrogatories, production of documents, or admissions. Subpoenas are often issued to collect relevant evidence. The court assigned to the case will usually set a timeframe within which all discovery must be completed before the case can continue forward towards trial. To learn more about discovery, check out our article here

Resolving Pre-Trial Issues or Summary Judgment

After discovery, the case will proceed to a pre-trial stage where various legal issues can be addressed by the judge and litigants. This might involve motions to exclude evidence or even motions for the judge to decide the case in a summary fashion. Motions are written documents filed by various parties in the litigation that request a court to make a specific decision or take certain actions. They can be filed at any time once the complaint is filed but most often occur after the completion of discovery. For example, a motion to dismiss asks the court to dismiss the case for any variety of reasons. It can be filed by either party and usually occur early in the case. A common motion to dismiss challenges the complaint arguing the plaintiff has failed to state a claim for relief. Other dismissal motions include:
  • Lack of subject matter
  • Lack of personal jurisdiction
  • Improper Venue
Summary judgment motions also ask the court to dismiss the case but for other reasons. It usually is filed after the end of discovery. It asks the court for dismissal as there is “no genuine issue of material fact that is in dispute.” For more information about summary judgment, check out our article on the topic here.

Trial and Judgment

After discovery and the pre-trial motions, the litigation will proceed to trial. The judge or a jury will hear the case and render their decision. Before rendering this decision, a trial is held so all parties can present their case, argument, and evidence. In a trial, the court controls the process within the rules of civil procedure. The goal is to have the jury render its verdict for either party. The plaintiff must prove her case by a “preponderance of the evidence.” The defendant does not have the same burden and only has to have the jury believe that the plaintiff did not sustain her burden. At trial, each party will present witnesses or other evidence to prove their case and ultimately all the evidence is sent to the jury for a decision. After the jury (or judge in a bench trial) renders a verdict, the parties will be bound by their decision unless reversed on appeal. For more information about appealing civil judgments, check out our article on the appellate process.
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