Litigation is something nobody wants to go through, but at some point, most of us will. Whether you’re a business owner who wasn’t paid properly when performing M&A and selling a major asset, or you’re a homeowner whose neighbor broke your fence and refuses to pay for it, likely, you will likely eventually deal with litigation in one way or another. Even if you don’t, this is part of the law in the country you live in, and it’s important to understand how that law works.
Unfortunately, many aren’t aware of the details when it comes to the litigation process and how it’s handled. It’s a lot more complicated simply starting a case, showing up in court, talking for a bit, and listening to the judge’s verdict. That’s a relatively small part of the overall process.
Today, we’re going to walk you through all of the stages of litigation from the initial complaint that triggers litigation, all the way to the judge delivering their verdict.
Let’s get started.
1: Presenting a Claim to the Court
The first thing that happens in a litigation case is that someone, supposedly, experiences something that triggers them to make a complaint. Throughout this guide, we’ll use the example of a business owner having a contract for products to be dropped off, he paid for them, but the products were never shipped.
So, for this phase, the business owner would be angry that his products never arrived, there has been no attempt by the supplier to refund his money or supply the products, and he has decided to file a lawsuit.
The business owner will contact his lawyer, discuss the issue, and hire him to represent him in court. The lawyer, assuming he chooses to take on the case, will then start consultation processes, help the business owner gather evidence that not only proves the case is likely to be won but will also come in handy later, and determine the best way to structure the claim to ensure it’s worthwhile but doesn’t push boundaries.
Next, the lawsuit will be filed with the court, and the supplier will be notified.
The supplier is at a bit of a disadvantage in this situation, because the business owner has already started their end of the legal process before the supplier even knows they’re going to court. However, their part in this process looks very similar. They’ll contact a lawyer, the lawyer will go over their evidence to determine if he wants to take the case, consult the supplier, and then start engaging with the court and preparing for the litigation process.
Pleadings are the first formal phase of litigation. This is the part where both parties present their initial claims to the court.
The business owner who filed the lawsuit in this example would spend this time writing down all his allegations formally. These are called “complaints”.
Then, the defendant will be shown the buyer’s complaints, and they’ll provide their counterclaims in an attempt to defend themselves. That is, unless they just admit to doing it, and then the entire case is handled relatively quickly. However, there will usually be excuses, valid explanations, and other counters to the allegations. The defendant’s written claims are called “answers”.
Pleadings are used to set the groundwork for the case. They clearly define the problem, give a basic understanding of each side’s story, and allow the court to move forward with a better understanding of the problem.
Have you ever watched a dramatic court show and the defendant suddenly bursts out with previously unknown information that completely baffles the court and changes everyone’s mind? That doesn’t happen.
In reality, everything that is presented during the actual trial portion of a case is carefully gathered within an elaborate set of rules and regulations, and that is presented to the court before the trial even starts. This is called the “discovery” period.
During the discovery period, both parties spend their time gathering evidence. This can be done in a lot of different ways.
Each team can find relevant documentation that their respective clients have in their possession, properly conduct interrogations, request spoken depositions, gather witness testimonies, and other things that would fall under the umbrella of “evidence”.
All of the materials gathered during this phase are provided to the court, and they’re available to both parties.
This sounds odd if you’re used to courtroom fiction, but there’s a good reason for that. Surprises aren’t good for the courtroom. They allow for unfair tricks, an inability to defend themselves against unexpected allegations, and more. The discovery period promotes transparency and ensures that both parties have the opportunity to be fully prepared, and that’s the best environment for actual justice to be dispensed.
4: Pre-Trial Motions
Sometimes, it’s not necessary to go through the whole legal process, or there might be certain aspects of the case that you’d like to get out of the way as soon as possible.
For example, let’s say the supplier from our earlier example just admits to not sending the delivery, and they don’t have any excuses. They just took the money and ran. They might file a pre-trial motion to let the judge come to a decision based on applicable law without all the arguing and time-wasting that not only draw out the inevitable but also increase court costs.
There might even be multiple claims being made against someone, and they might want the lesser claims handled quickly because they can’t fight them and the most impactful claim effectively.
There are all kinds of situations where this might be appropriate, and either side can file for pre-trial motions of various kinds.
In essence, this is the phase where either party gets to say “Let’s just get this over with“.
If pre-trial motions weren’t made, or they didn’t solve the problem, the court proceeds to the trial phase. This is part of the process everyone is familiar with. Both parties stand before a judge, take turns making their arguments, presenting information to the court and explaining it, and everything else you’d expect.
Verbal testimonies are given, juries take time to deliberate on the facts, and in general, it’s everything you see on TV.
This can be a lengthy process or a short one depending on the case.
Finally, you’re at the verdict. The court has heard each party’s arguments, the jury has passed their recommendation onto the judge, and the judge will hand down a verdict.
It’s important to understand that the verdict given in this phase isn’t just the judge’s opinion. The judge has to look at each argument and fully understand the details, consider the jury’s recommendation, and then compare everything to applicable law. In the end, the existing law determines what the decision is. However, there is some room for the judge’s own opinion and interpretation of the law to impact the outcome.
Post-Trial Process and Options
Once you get through all of the stages of litigation, it’s not over.
For this, let’s assume the supplier was ordered to refund all the money owed to the business owner from our previous example.
The court will set up the method of pay and notify both parties to ensure everyone knows what they’re doing. Assuming the supplier accepts responsibility, goes home, gets the money, and pays it off, the case is over.
However, that doesn’t always happen.
The supplier can decide to simply not pay. In that case, the court won’t automatically track him down. The business owner would have to notify the court of the problem, another visit with the judge might be necessary, and further action would be taken. The court might seize the supplier’s assets to pay the business owner, put a lien on their earnings, or take any number of actions to force the supplier to pay.
That’s the case with all finance-based cases. You either pay as agreed, or the court takes action.
How Long Does Litigation Take?
One question that we get frequently is how long it takes to go through this process from start to finish. Unfortunately, there is no accurate answer.
Litigation can take as little as a few weeks if court dates line up and the case is extremely cut and dry, but that doesn’t happen often. It can also take multiple years to conclude. When that happens, it’s usually because the case is very complicated, a lot of information has to be gathered, and debated in court, and then the court has to take time to consider everything. There might be long delays between court appearances due to one side filing for them to drag things out, or the court system might have too many cases to handle at once. Any number of things can happen.
However, on average, a case takes a few months. A lot of that time is spent waiting for different parts of the process to start, because the court can’t stay in session 24/7, and you’re not the only case the court is handling. So, you might have a discovery phase for a month, not be able to file pre-trial motions for another month, have to wait to see if pre-trial motions are accepted, and then spend time in the courtroom. It can be a lengthy process.
This is one reason you should always make sure you’re committed to resolving the issue you’re trying to start litigation over. It’s not as easy as filing a lawsuit and getting paid the following week. Once you start, it can take a long time, and you will likely accrue some expensive court costs throughout the process. Especially if the case takes longer than usual.
What to Consider Before Starting the Litigation Process
We touched on this slightly, but there are some things that you should consider before starting the litigation process. It’s not always a viable option.
1: How Likely is it You’ll Win?
First and foremost, you need to consider how likely it is you’ll win the case. Not only should it be something that seems like you’ll win from your perspective, but there should also be supporting case law and similar resources that show you have a good chance of winning.
Of course, nothing is ever certain, but at least if you know your chances are good, you won’t waste time, effort, and money just to hear the judge dismiss your case.
2: Is it Financially Worth it?
This is unfortunate because it’s one reason many people avoid taking legal action even if they can win. The court is expensive.
Again, we’ll use our first example. Let’s say the business owner only ordered $200 worth of products. Yes, he might win the case, but he’ll spend much more than $200 on the lawsuit. He’ll probably spend more than that the first time he talks to his lawyer. However, if he ordered $100,000 worth of products, it’s a little different.
3: Can You Handle It Outside of Court?
Is there a way for you to resolve the issue with the other party without going to court? Have you tried communicating with the other person to see if they’re even willing to make up for whatever it is you want to take them to court for, or did you get mad and instantly think about suing them?
Most people don’t jump straight to lawsuits unless they’re trying to abuse the system, but even if approaching the situation like two adults has been attempted with no results, there is still another option before you head to the courtroom.
You can opt for conflict resolution. This is when both parties meet with a mediator and their legal teams on court property, and they debate the situation on their own. The mediator and legal teams simply help ensure that everything is fair. It’s not a trial, and a judge isn’t involved.
Of course, if none of those things are options, litigation is the next step.
Understand Litigation with Litigation Legal Insight
If you’re handling litigation, and you’re getting ready to take on substantial legal research, need to find expert witnesses, or otherwise need professional consultation to help guide you and speed up the process, Litigation Legal Insight is here to help.
Contact us for the consulttion and guidance you need to make the right decisions.