The advice of an experienced attorney is absolutely critical to success in litigation -- whether that success comes in the form of a win in court or a favorable settlement. An experienced litigator, like the ones at Gutwein law, will think steps ahead and anticipate what the opposing party may do throughout the litigation process enabling you to obtain the best possible outcome for your situation.
Given that anyone can be sued at any time, we think it's important that our current and prospective clients have a basic understanding of the litigation process, so they can obtain proper counsel, and ultimately, have their interests protected.
Below, we've outlined the litigation process in seven steps to give you an idea of what it's typically like to be involved in a lawsuit.
- The Demand Letter: Before a lawsuit begins, you may receive a demand letter, outlining the dispute, making demand, and threatening litigation. After receiving a this letter, you should speak with a lawyer about the dispute and discuss options moving forward to either avoid or at least get ahead of any potential litigation.
- The Complaint & Response: In other instances where a demand letter is not sent, you may not be aware of any legal action until you are served with a complaint. A complaint provides the factual and legal allegations asserted by the plaintiff against you, the defendant, and asks the court to award relief. There are three main types of relief that a court may grant. These include damages, equitable relief, or declaratory action. A defendant must respond to a complaint within a particular amount of time, therefore, after receiving a complaint, it is critical to promptly meet with a lawyer.
Further, you have two options in responding to a complaint. Specifically, a defendant can file a motion to dismiss or an answer to the complaint. A motion to dismiss is often preferable in terminating baseless litigation, because if granted, the lawsuit can end just as soon as it starts. However, in some cases the defendant has no choice but to provide an answer to the complaint. In the answer, the defendant will admit or deny plaintiff's various allegations and defendant may also assert affirmative defenses, counterclaims, cross-claims, and third party claims. An experienced civil litigation attorney will be able to guide you through this process.
- Discovery: Discovery is the information-gathering process of litigation and typically commences after the defendant has answered the complaint. Often, discovery begins with written discovery including interrogatories, document requests, requests for admission, and non-party requests. Following the preliminary written discovery, parties typically take relevant individuals or businesses' depositions where one party's attorney has the opportunity to ask another individual questions related to the lawsuit.
- Motion for Summary Judgment: Once enough information has been ascertained, either party may file a motion for summary judgment. A motion for summary judgment is appropriate when there is no genuine dispute of material facts. In other words, if there aren't any disputed facts, then the judge may decide the case as a matter of law without proceeding with the litigation. But, if a genuine dispute of material fact exists, then the case must proceed.
- Alternative Dispute Resolution: At any point in the pre-trial process, parties my enter into settlement agreements. Additionally, most courts even require alternative dispute resolution before permitting a case to proceed to trial. Alternative dispute resolution includes informal settlement, mediation, and arbitration where the parties and their respective counsel have the opportunity to resolve and settle the case before it proceeds to trial. Many cases end up settling at or prior to this point because it is advantageous as it avoids the immense expense of trial.
- Pre-Trial: One of the most important parts of the pre-trial process is the preparation and disclosure of the witness and exhibit lists. This document lets the court and the opposing party know what evidence you intend to use and who you intend to call as witnesses at trial. Further, during the pre-trial period, the parties file pre-trial briefs which outline the arguments they expect to make at trial. If the trial is set to be a jury trial, the parties also have the opportunity to file proposed jury instructions for the court.
- Trial: There are two types of civil trials, bench trials and jury trials. A bench trial is where the case is tried before a judge and the judge acts as the finder of fact and law. A jury trial is where the case is tried before a judge and a jury; the jury acts as the finder of fact and the judge determines the matters of law. Trials differ in lengths depending on the complexity of the case and can range anywhere from a half a day to weeks on end.
Our litigation attorneys have the experience and knowledge to represent you whether you are the defendant or the plaintiff. Our attorneys are prepared to handle a wide range of issues for businesses and individuals including commercial litigation, real estate, employment law, administrative law, environmental law, and alternative dispute resolution.
If you've been sued or just want to discuss a preemptive plan for litigation, please don't hesitate to give us a call at 765.423.7900.