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What is the litigation process...

What is the litigation process and how do I know if it’s good for my situation?

  • November 20, 2017

Litigation is the process by which a lawsuit makes its way through the court system for ultimate resolution by either a judge or a jury.  That process can be straightforward, or it can take many twists and turns depending, again, on a number of factors.

A lawsuit is started by one party (the plaintiff) filing a summons and complaint in the applicable location (usually the local county clerk’s office).  The summons and complaint are then served on the defendant(s).  The defendants then have a brief time period during which to serve an “answer” to the complaint.  The parties can then engage in “discovery”, with or without the court’s assistance and oversight. “Discovery” is the process by which the parties exchange all of their evidence in connection with the case.  There are certain discovery tools that are often used by attorneys during this process, including demands for documents, demands for photographs, demands for depositions of the opposing parties, and more.  This is often the part of the case that takes the longest.

Most often, the court’s assistance, or “intervention”, is sought by one or both of the parties shortly after the answer is served by the defendant.  The court’s intervention is obtained by one party filing a form called an “RJI” (request for judicial intervention).  Once that form is filed, a judge is assigned to the case.  Usually, once a judge is assigned, the parties or their attorneys appear in court and enter into a formal discovery schedule, which the court signs and orders.  The schedule is a calendar detailing the time periods during which each party has to provide all of their proof to the other.  An end-date is also provided by the court, to try and keep the parties on track to complete discovery in a reasonable time.

If there are no delays or disputes between the parties during the discovery process, the parties or their attorneys appear in court again to report that they are “ready for trial”.  The court then provides a date for trial, which can be as short as a few months away, or as long as a year or more away, depending on how busy the court’s docket is and depending on whether the case will be heard by a jury or the judge.  The judge will usually order a conference before trial to attempt to have the parties settle their case.

Throughout the litigation process, any number of things may occur.  There may be motion practice.  There may be appeals of a court’s decision on a motion.  There may be a bankruptcy by a party.  There may be a death of a party.  There may be a significant change in the law that affects an issue in the case.  There may be new facts that alter the course of the case.  So many things can occur.  Attorneys and parties need to be prepared and, to a degree, flexible.