What to expect in litigation
by
David P. Korteling on Aug. 06, 2017
Accident & Injury Personal Injury Divorce & Family Law Divorce Lawsuit & Dispute Litigation
Summary: While every case is different, all lawsuits - whether they involve car accidents, divorce, contract disputes, commercial claims, or any other claim - follow a similar set of rules. This article helps explain what to expect if you are involved in a lawsuit.
This article is intended to provide a general overview of the litigation process, regardless of whether the matter is a business dispute, personal injury, divorce, or other matter, and regardless of the jurisdiction in which the case proceeds, or whether your role in the lawsuit is as a plaintiff or a defendant.
Every case is unique. However, most lawsuits involve disputes over one or more of the following things:
1. Factual disputes: The parties are not in agreement as to what happened or who is at fault.
2. Legal disputes: The parties are not in agreement as to how the law applies to their particular situation (for example, whether someone’s actions amount to a breach of contract, or whether someone is prohibited from recovering because they are partly at fault for an accident, or whether a spouse in a divorce is entitled to a share of a particular property).
3. Disputes over value or damages: The parties may not be able to agree as to what is fair and reasonable compensation for those damages or may not agree as to what is a fair resolution to the problem.
Of course, most lawsuits involve all three: factual disputes, legal disputes, and disputes over damages.
A lawsuit begins by filing a complaint with the court which outlines the facts alleged by the Plaintiff and describes the relief that is sought. After the Complaint has been served on the Defendant, the Defendant must file an answer specifying which allegations are admitted and which allegations are denied. A number of responsive motions may also be filed which attack the sufficiency of the complaint or seek to have the court order the plaintiff to modify or limit the scope of the complaint. The Defendant may also file a counterclaim, or may file a third-party claim which alleges that some other person or entity is responsible for the damages claimed by the Plaintiff.
Usually after the answer has been filed, there is a process for setting deadlines for various pre-trial matters. Courts and jurisdictions may have different approaches for how this is done, but as a general matter there is a process for setting a schedule so that the case can move forward in an orderly and predictable manner.
Once the answer has been filed, the parties typically engage in discovery. Discovery is the process by which each side attempts to determine what evidence exists to support the other side’s claims or defenses. It is also used to look for weaknesses in the other side’s case and to look for facts that support your claims. Discovery usually involves:
1. Written interrogatories: These are a series of written questions that must be answered in writing and under oath.
2. Requests for documents: A series of written requests requiring the answering party to produce documents in that party’s custody, possession or control. Records can include bank records, emails, computer files, social media content, phone records, or other documents that could be relevant to the case.
3. Requests for admission: A series of written statements that the other party is required to admit or deny (e.g., "admit or deny that you were the driver of the car". While these responses are not under oath, the court typically can impose severe sanctions against a party that fails to admit a matter that should have been admitted.
4. Depositions: Depositions require the testifying party (“deponent”) to testify under oath. The testimony is taken down by a court reporter. This is similar to testifying at trial; however, it is normally done at the office of one of the attorneys and there is no judge present.
5. Subpoenas: Subpoenas may be issued to require third parties to produce records and documents, or to appear and testify at a deposition.
Other procedures may be involved, including but not limited to, requiring a party to appear for a medical exam or to permit inspection of property, depending on the case.
During the course of discovery, there may be court proceedings involved to resolve questions that arise, such as whether the discovery is proper or whether one party is complying with the rules governing the discovery process. Other issues may arise where a party may seek to expand or limit the claims that are made, the defenses that can be raised, or the evidence that can be presented to the judge or jury.
Depending on the nature of the case and the jurisdiction, the discovery phase can last from about three to twenty-four months. It may be shorter or it may be longer depending on each case and the court. Some courts are known to move cases along very quickly, while in other courts the case may move along more slowly due to a crowded docket or other reasons.
During the discovery phase, the parties may also designate expert witnesses if required to support a claim or defense. Experts are used for a wide range of matters. Common areas of expert testimony include to establish valuations and to render opinions as to medical, psychological or technical matters.
Also during this phase, the parties may be required to participate (or may voluntarily agree to participate) in alternative dispute resolution. This can include mediation (where a neutral third party hears both sides of the case and attempts to get the parties to reach an agreement) or binding arbitration (where the parties agree to have their case heard by a neutral third party - usually a retired judge or experienced attorney - and agree to be bound by that decision instead of having a trial in court).
Following the discovery phase, the case normally proceeds to trial where a judgment is rendered.
Cases may settle at any point. They are normally more likely to settle after the parties have completed discovery, when each side is in a position to fully evaluate the evidence and the strengths and weaknesses of the other side’s case. Some cases settle very early in the process; some cases settle very late in the process or even after trial has begun. Some cases do not settle at all because the parties are unable to come to an acceptable agreement, and the matter must be resolved by trial.
Very often, the most difficult part for anyone involved in a lawsuit is patience. The process can be long because of the amount of time that is required to prepare a case for trial, and because of the limited judicial resources available to resolve disputes.
(c) 2017 David P. Korteling, Law Offices of David P. Korteling
Every case is unique. However, most lawsuits involve disputes over one or more of the following things:
1. Factual disputes: The parties are not in agreement as to what happened or who is at fault.
2. Legal disputes: The parties are not in agreement as to how the law applies to their particular situation (for example, whether someone’s actions amount to a breach of contract, or whether someone is prohibited from recovering because they are partly at fault for an accident, or whether a spouse in a divorce is entitled to a share of a particular property).
3. Disputes over value or damages: The parties may not be able to agree as to what is fair and reasonable compensation for those damages or may not agree as to what is a fair resolution to the problem.
Of course, most lawsuits involve all three: factual disputes, legal disputes, and disputes over damages.
A lawsuit begins by filing a complaint with the court which outlines the facts alleged by the Plaintiff and describes the relief that is sought. After the Complaint has been served on the Defendant, the Defendant must file an answer specifying which allegations are admitted and which allegations are denied. A number of responsive motions may also be filed which attack the sufficiency of the complaint or seek to have the court order the plaintiff to modify or limit the scope of the complaint. The Defendant may also file a counterclaim, or may file a third-party claim which alleges that some other person or entity is responsible for the damages claimed by the Plaintiff.
Usually after the answer has been filed, there is a process for setting deadlines for various pre-trial matters. Courts and jurisdictions may have different approaches for how this is done, but as a general matter there is a process for setting a schedule so that the case can move forward in an orderly and predictable manner.
Once the answer has been filed, the parties typically engage in discovery. Discovery is the process by which each side attempts to determine what evidence exists to support the other side’s claims or defenses. It is also used to look for weaknesses in the other side’s case and to look for facts that support your claims. Discovery usually involves:
1. Written interrogatories: These are a series of written questions that must be answered in writing and under oath.
2. Requests for documents: A series of written requests requiring the answering party to produce documents in that party’s custody, possession or control. Records can include bank records, emails, computer files, social media content, phone records, or other documents that could be relevant to the case.
3. Requests for admission: A series of written statements that the other party is required to admit or deny (e.g., "admit or deny that you were the driver of the car". While these responses are not under oath, the court typically can impose severe sanctions against a party that fails to admit a matter that should have been admitted.
4. Depositions: Depositions require the testifying party (“deponent”) to testify under oath. The testimony is taken down by a court reporter. This is similar to testifying at trial; however, it is normally done at the office of one of the attorneys and there is no judge present.
5. Subpoenas: Subpoenas may be issued to require third parties to produce records and documents, or to appear and testify at a deposition.
Other procedures may be involved, including but not limited to, requiring a party to appear for a medical exam or to permit inspection of property, depending on the case.
During the course of discovery, there may be court proceedings involved to resolve questions that arise, such as whether the discovery is proper or whether one party is complying with the rules governing the discovery process. Other issues may arise where a party may seek to expand or limit the claims that are made, the defenses that can be raised, or the evidence that can be presented to the judge or jury.
Depending on the nature of the case and the jurisdiction, the discovery phase can last from about three to twenty-four months. It may be shorter or it may be longer depending on each case and the court. Some courts are known to move cases along very quickly, while in other courts the case may move along more slowly due to a crowded docket or other reasons.
During the discovery phase, the parties may also designate expert witnesses if required to support a claim or defense. Experts are used for a wide range of matters. Common areas of expert testimony include to establish valuations and to render opinions as to medical, psychological or technical matters.
Also during this phase, the parties may be required to participate (or may voluntarily agree to participate) in alternative dispute resolution. This can include mediation (where a neutral third party hears both sides of the case and attempts to get the parties to reach an agreement) or binding arbitration (where the parties agree to have their case heard by a neutral third party - usually a retired judge or experienced attorney - and agree to be bound by that decision instead of having a trial in court).
Following the discovery phase, the case normally proceeds to trial where a judgment is rendered.
Cases may settle at any point. They are normally more likely to settle after the parties have completed discovery, when each side is in a position to fully evaluate the evidence and the strengths and weaknesses of the other side’s case. Some cases settle very early in the process; some cases settle very late in the process or even after trial has begun. Some cases do not settle at all because the parties are unable to come to an acceptable agreement, and the matter must be resolved by trial.
Very often, the most difficult part for anyone involved in a lawsuit is patience. The process can be long because of the amount of time that is required to prepare a case for trial, and because of the limited judicial resources available to resolve disputes.
(c) 2017 David P. Korteling, Law Offices of David P. Korteling
