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What Happens When a Lawsuit is Filed?

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More likely than not, you have come to us because you need a trial lawyer.  Whether a dispute involving a construction project, an automobile accident, or some other civil claim (commonly referred to as a “tort”), you have been damaged in some way and require that services of a capable lawyer to obtain a recovery on your behalf.

We are proud to have earned the reputation as a group of lawyers who work very hard for our clients’ claims.  We thoroughly investigate the nature of the underlying problem, and when we proceed in Court on your behalf, we make sure that we have developed convincing evidence in support of your claim.  Nothing produces successful settlements more than compelling evidence of the merit and value of the claim.  Trial is the end to the means of litigation.  While only a small percentage of all lawsuits result in a trial, successful results are the product of lawyers who work hard to prepare a case for trial.

That being said, most cases that are tried reach that stage of litigation because of some failure on one or more parties’ behalf.  In our experience, it is typically because the other side of the case has grossly miscalculated some significant aspect of the evidence (either liability or damages).  But other than aggressively preparing our case for trial, there is nothing that can be done to compel the other side to recognize the error of their ways and pay a fair settlement. This will serve as an overview of the process of filing a lawsuit.

Litigation is commenced by the filing of a complaint by the plaintiff.  The complaint is typically filed in the court where the accident or wrongdoing occurred, or in the county where any one of the defendants reside.  If the case involves a question of federal law, and/or the primary defendant is out of state, the case may either be filed, or end up in the United States District Court (aka “Federal Court”).

For the most part, our cases are filed in state court.  The clerk of courts prepares what is called a “summons” (or a notice of the lawsuit and instructions for what a defendant is supposed to do upon receipt of the paperwork) and together with a copy of the complaint, sends via certified mail to each named defendant.  By law, the defendant is entitled to 28 days to file an answer to the complaint after they receive the mailing.  If they dispute some technical aspect of the lawsuit, they are permitted to file a motion to dismiss, or other motion to challenge the complaint.  Typically, a defense lawyer will also request additional time (usually another 30 days) to submit an answer.  Once the complaint is answered the “pleadings” are complete and the case moves onto the discovery phase.

Discovery is the process whereby the parties exchange information to develop the evidence in the lawsuit.  It begins with the exchange of questions called “interrogatories” and requests for the production of documents and other tangible evidence.  Inspections may be requested, and subpoenas served upon third parties for the production of other evidence.

Once the written discovery is complete, the parties move onto depositions.  A deposition involves the informal recording of a witness’s testimony, typically by a court reporter who takes the verbal testimony down by dictation.  The deposition may also be videotaped upon the proper notice by the party seeking the testimony.  The process is informal in that it does not occur in court.  Typically, the depositions will take place in an attorney’s office or conference room.  Depending upon the complexities of the particular legal matter, the deposition could last from an hour or two, to several days.  If expert witnesses are involved, the depositions of parties (the plaintiff(s) and the defendant(s) and witnesses are typically conducted first so the experts can use the testimony to arrive at their opinions.  Expert depositions are then usually conducted later in the case after the evidence has been developed and expert reports have been produced.

The Court will schedule a first meeting with the attorneys often called the “Case Management Conference.”  This takes place within 90-120 days from the filing of the complaint, and provides the Court with the opportunity to learn the specifics of the case, to set a schedule for discovery, production of expert reports, and to set a trial date (trial is generally scheduled for 12-18 months after the filing of the lawsuit).  As the case works through discovery, there typically are opportunities for the Court either to require the parties to meet to discuss settlement, or for the parties to schedule such events individually (Settlement Conferences and Mediations).

If a defending party believes there are legitimate grounds to challenge the merit of the lawsuit once discovery is complete, they are entitled to file what is called a Motion for Summary Judgment.  Typically, at the CMC, the Court sets a “dispositive motion deadline” for this purpose.  If the Motion is granted to that defendant, it may bring the case to an end.  This is a topic that involves more specific discussion with your attorney.

A week or more before trial, the Court will schedule a final meeting called the “Final Pretrial” (the actual title may vary from Court to Court).  This is the opportunity for the Court to make a concerted effort to resolve any serious disputes and avoid trial.  By this point, barring unforeseen complications, the evidence should be fully developed and the parties should be nearly ready for trial.  Each side should have completely evaluated the risks of loss and the merit of the other sides’ case.  Most Courts require the parties (and any liable insurance company) to be present at the Final Pretrial so every effort can be made to achieve settlement.  If the case cannot be settled, the Court will resolve any final disputes and discuss the specifics of trial with counsel.

If the trial commences (many first trial dates are continued for different reasons), it begins with jury selection which could take anywhere from half of a day, to a day or two.  Once the jury is selected, each attorney is permitted to make an Opening Statement where he or she is allowed to provide an outline of the evidence and the issues of the case.  Witnesses are then called, and once all the witnesses have testified, the attorneys make Closing Arguments where they sum up the evidence and try and persuade the jury to find in their clients’ favor.  The trial judge instructs the jury on the law and the jury retires to a private room to begin to deliberate.  The jury’s verdict brings the litigation to an end.

This serves as a general overview of the litigation process.  Each case is different, and be sure to address any specific questions that you may have about your case with an attorney.