Anatomy of a Lawsuit

This is a brief outline of a lawsuit. Bear in mind: Each case is different; the possible procedural issues are infinite; there are numerous court rules and statutes that give rise to numerous, different procedural possibilities; and it is impossible to predict all of the procedural issues that may arise in a given case.

In general, however, there are three stages to litigation: (1) the pleading stage; (2) the discovery stage; and (3) the trial stage. In addition, there may be settlement negotiations and an appeal.  Each of these items is discussed in more detail below.

Stage 1—Pleadings

In its strictest sense, the term “pleadings” refers to a Plaintiff’s complaint and a Defendant’s response.  In the pleading stage, the Plaintiff files a complaint and serves process (court papers) upon the Defendant. The Defendant then has three general options: ignore the complaint and file no response; file an answer; or file a motion to dismiss (or other motion). If the Defendant ignores the complaint, the Plaintiff could get a default and default judgment against them. From a financial perspective, that would be the cheapest way for a Plaintiff to dispose of the lawsuit. If, as in most cases, the Defendant simply files an answer, the pleading stage would be over and the case would move into the discovery stage. If, on the other hand, the Defendant files a motion to dismiss (or other motion), the Plaintiff would, at a minimum, have to file an opposition to the motion (along with a brief supporting its position) and perhaps appear for a hearing in court. If the court ultimately denied Defendant’s motion, they would have to file an answer, and the case would then move into the discovery stage. (Some courts require the case to go to discovery even if a motion is pending.)  For the pleading stage, Defendants’ filing a motion to dismiss or other motion would be the most expensive scenario.

Stage 2—Discovery

“Discovery” refers to the time when attorneys collect evidence and identify witnesses.  Attorneys request documents and information, they serve subpoenas on third parties, and they take depositions.  The discovery stage begins soon after Defendant files their answer. At that time, the attorneys meet and discuss a potential discovery plan (i.e., dates, events, documents, witnesses, and deadlines for discovery). Usually, the parties agree on a plan and submit it to the court, which ultimately accepts or rejects it.  Regardless, the court will ultimately issue a discovery order. The parties may then “discover” information, documents, and other items. Right off the bat, the parties must disclose relevant documents, witnesses, and other information to each other. They may also request additional documents and information from other parties in the form of written discovery requests, including interrogatories, requests for production, and requests for admission. They may take the depositions of other parties or even non-parties, such as fact witnesses. They may request documents from non-parties in the form of subpoenas. In the discovery stage, the parties disclose relevant experts—such as appraisers, accountants, economists, and the like—along with their experts’ reports. (Experts are not cheap.) In discovery, the parties may file all sorts of motions, such as motions to compel discovery responses from the other side, motions for protective order to keep them from having to disclose documents or information, motions for summary judgment to get rid of some or all of the opposing party’s claims or defenses, and so forth. Discovery is generally the longest and most expensive stage of litigation.

Stage 3—Trial

The trial stage begins after discovery closes. Most of the trial stage is spent preparing for trial, including culling all the file documents, identifying and marking exhibits, subpoenaing witnesses to appear at trial, reviewing deposition transcripts, outlining direct and cross-examinations of witnesses, preparing legal briefs, preparing questions for the jury panel, outlining opening statements and closing arguments, and so forth. There may be some motions filed in the trial stage, such as motions in limine to keep documents and information out of evidence (and away from the jury). Finally, there is the trial. Trials generally consist of the following: a hearing on pre-trial motions and other trial matters, jury selection, opening statements, Plaintiff’s presentation of evidence and witnesses, Defendant’s presentation of evidence and witnesses, closing arguments, and jury deliberations. Oral motions are made and ruled upon by the court throughout the trial. Trials require a lot of work in a short period of time. Thus, while the trial stage may not be as expensive as the discovery stage as a whole, it usually will result in very large monthly bills.

Settlement Negotiations

The overwhelming majority of civil cases settle.  Throughout all three stages of litigation, settlement negotiations may (and usually do) occur. Parties can settle anytime, even after trial. Nevertheless, in order to settle, the parties must agree to settle, and they must agree to the terms of settlement.  It is often said that “a bad settlement is better than a good trial.”  One reason is the expense.  Litigation is extremely expensive. Regardless of what stage a case is in, a settlement stops the case dead in its tracks.  In this manner, parties can minimize their attorney fees and court costs.  Settlement also allows the parties to control the result.  No one can guarantee what a judge or jury will do.  There is always a gamble in taking a case to trial.  With a settlement, that uncertainty is eliminated.

Appeal

After the final decision is rendered at trial, the aggrieved party (usually the party that lost) may file an appeal. The procedure for an appeal is completely different.  An appeal is brought before an appellate court, while the three stages of litigation discussed above are brought before a trial court.  An appeal usually does not involve as much time (or expense) as a case in the trial court. However, avoiding an appeal is another benefit of settlement.