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The Litigation Process

by mjpospis on March 19, 2017

in Articles, Litigation

Every legal case is different. This is because there essentially is an infinite permutation of facts and circumstances that may give rise to a legal claim. Changing even one (seemingly inconsequential) fact, and you might very well get a different result.

That said, lawsuits all have the same basic structure. Here I’ll outline the basic components of a lawsuit. This is, of course, grossly oversimplified, and is not intended to encompass all procedural and substantive issues that pervade most cases.

Rules, Rules, and More Rules

Litigation is heavily regulated by, for example (depending on the court), the:

Pre-Litigation

This phase of the case is where the plaintiff (or, if represented, plaintiff’s counsel) investigates/ascertains the facts and devises a plan of attack. This may involve preparing and sending a demand letter in an effort to kickstart settlement dialogue.

Drafting, Filing, and Serving the Summons & Complaint

If pre-suit negotiations fail, the next step is generally to prepare and file documents called a “summons” and a “complaint”. This filing is what formally commences a lawsuit. After these documents are filed, they must be served on all defendants.

Answer or Motion to Dismiss

At his point, the ball is in the defendant’s court. The defendant basically has three choices: (1) do nothing and default; (2) file/serve an “Answer”, or (3) file a motion to dismiss.

Discovery

Once the defendant answers the complaint (or of the defendant files a motion to dismiss and the court denies the motion), the case will proceed to a phase called “discovery” (in New York practice, “disclosure”). It is what these names imply: each side is permitted to learn, or “discover,” information, facts, and documents held by the other side. Discovery methods include (1) demands for documents and/or inspection of premises, (2) interrogatories (written questions), (3) depositions, and (4) physical examinations. If a party wants to compel responses or information from a recalcitrant party, or to shield documents or information from the other side, motion practice – motions, e.g., to compel or for a “protective order” – may be necessary.

Summary Judgment

At some point – usually after discovery has been completed and all of the facts are “in” – the next major procedural step is “summary judgment”. This is where either side (usually the defendant) seeks, via motion, a judgment as a matter of law because there is no “genuine” issue of “material” fact.

Trial & Verdict

If the case is not dismissed on summary judgment, if will proceed to trial, either by jury or by the court. A jury trial culminates with the jury’s verdict; a trial by the court (commonly called a “bench trial”) with the court’s findings of law and fact.

Post-Trial Proceedings

An adverse jury verdict does not end the matter. After the jury renders its verdict, the losing side still has weapons in their arsenal. These include motions for judgment as a matter of law and for a new trial.

Appeal

A party unhappy with a court’s decision may, in accordance with relevant laws and rules, ask a higher-level court/judge to review it. This request is referred to as an “appeal”.

Categories: Articles, Litigation

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