Some of my clients, whether they have been physically injured, wrongfully terminated, or defrauded, have asked me this basic question: what happens during a lawsuit? What follows is a brief overview of the lifecycle of a lawsuit.
“Civil litigation” is the practice of fighting a civil lawsuit. The range of issues that can be litigated in a civil court are enormous. Two things you can’t do in civil litigation are charge someone with a crime or have the court alter a family relationship. The goal of civil litigation is almost always the recovery of monetary damages, though sometimes the goal is “injunctive relief” which is a court order that some act be initiated or halted, such as an order that a building sold at a foreclosure auction or an order to stop a company from drilling for oil on protected land.
There are three basic stages to a civil lawsuit: pleading, discovery, and trial.
PLEADINGS – THE INITIATION OF THE LAWSUIT
The pleadings are the first documents that are filed by the parties to a lawsuit. Those parties are referred to as “plaintiffs” and “defendants.” Plaintiffs are the injured parties seeking money from the defendants.
The plaintiffs always begin the lawsuit with a pleading called a “complaint,” or in certain kinds of cases, a “petition.” The complaint must be, at a minimum, a statement of the facts for which the plaintiffs contend they are owed money or another form of relief. Filing a complaint is the same thing as filing a lawsuit.
When lawyers draft complaints, they usually will specify the “causes of action” under which the plaintiffs seek compensation. These are the laws under which the plaintiffs contend they are entitled to compensation. Say for example, your boss fires you for being pregnant after falsely telling the owners of competing employers in your area that you stole company property. Your causes of action would include defamation and sex discrimination.
If you are a plaintiff, you also have to serve the defendants with the summons and complaint. Rules regarding what constitutes effective service vary depending upon the court where you file the lawsuit. Service of the lawsuit can be a significant challenge if the plaintiff doesn’t know the whereabout of the defendant and can add significantly to the length and cost of the lawsuit.
The defendants’ pleading is called an answer and it will, line by line, admit or deny each and every fact alleged in the complaint. The answer must also list affirmative defenses, which are legal rules under which the defendant may defeat the lawsuit. A well-known affirmative defense is the statute of limitations. For example, you must file a defamation lawsuit within a year of the defamation. If you’re too late in filing, the defendant may plead the affirmative defense that your defamation claim is barred by the statute of limitations. The defendant is responsible for pleading that affirmative defense in the answer and proving it.
A defendant may also file an answer with a counter-claim or a cross-claim. In a counter-claim, the defendant countersues a plaintiff for damages. In a cross-claim, one defendant sues another defendant.
DISCOVERY – THE EXCHANGE OF EVIDENCE
Once pleadings are finished, you enter the discovery period. During discovery, the parties demand and exchange evidence. The length of this phase of this lawsuit is determined by the court. Discovery typically lasts at least a year. It can take much longer than that.
Discovery usually begins with exchange of documents that prove or disprove the merits of the case as well as a series of written answers to some basic questions.
After “paper discovery” concludes, the parties will conduct depositions. Depositions are sworn testimony given under oath, but outside of the courtroom. At a deposition, a lawyer will ask a witness questions, which the witness must answer truthfully, to the best of their knowledge. Your lawyer will likely speak with you before your deposition and will be there while opposing counsel deposes you. Your lawyer will not be able to consult with you or coach you during the deposition, but he or she will object to questions that are unclear or ask for information that is legally confidential.
At the conclusion of discovery, parties may move for summary judgment. Summary judgment is basically a trial on paper where there judge can conclude that one party deserves judgment on all or some of the causes of action. The judge will look at all the evidence the parties raise, whether it be documents or testimony, and determine whether there are any disputes about the truth that would affect the outcome of the case. If no such disputes actually exist, judgement will be rendered on one or all causes of action.
If not all of the plaintiff’s allegations can be adjudicated on paper at summary judgement, the remaining issues go before a jury - or in some cases – before a judge. At the trial, live witnesses give testimony about the disputed facts, and a “trier of fact’ – either the judge or the jury – determine whose side of the story is more credible. The plaintiffs have the burden of providing “by a preponderance of evidence” meaning more than 50% likelihood, that their allegations are true. The trier of fact will determine whether the defendant is liable for the damages alleged and how much money the plaintiffs are entitled to.
Getting to a jury verdict usually takes years; sometimes many years, and very few civil lawsuits actually get to trial. Even fewer reach a verdict. Most civil lawsuits settle or are dismissed.