Litigation and Its Process
How It Works - How You Can Use It to Your Advantage - How You Get Out
For a court to decide on an issue, they must know what the facts are and what the law says. Litigation is the process of discovering the answers for those two questions. A trial is the process of presenting a compelling story and explaining why your story (and not your opponent's) best complies with the law and therefore, should win. The following is the basic process:
The complaint is the document filed with the court where the Plaintiff (the person who is filing the lawsuit) outlines where they think that the Defendant (the person being sued) broke the law. After the complaint is filed, you have thirty days to respond. This response can either challenge the complaint (or by challenging: venue, vagueness, parties, etc.), or more generally, file an answer to the charges. Once a response is filed, the parties will enter a process called Discovery to determine the facts of the case.
In most cases, each party has a different version of the facts. From these versions, each party must create a story explaining why their side is more appropriately following the law and therefore, should win the suit. Discovery allows each side to see the opposing story and ensures that all the facts of the case are available to all parties. The facts are established by using the following:
interrogatories - questions that the other party must answer
admissions - statements the other party must admit or deny
production of documents - any relevant documents the other party must provide
Usually, the last step in discovery is to take a deposition, where one side will ask the opposing side any relevant questions regarding the interrogatories, admissions and relevant documents. A deposition is done under oath and is as legally binding as it would be in a trial setting. This ensures that the story does not change at a later date. Depending on the complexity of the case, a deposition can take anywhere from a half hour to several days.
Motions are arguments before the judge to determine how the trial will proceed. There are motions to determine what evidence can be used, where the trial is going to take place, and what instructions should be given to the jury. There are even motions to close the case and immediately rule in your favor. These motions are only a few examples of the many motions available that can be used during trial. Knowing which motions are necessary and applicable, as well as which ones should be avoided, is key for ensuring your lawsuit proceeds in your favor.
All lawsuits culminate in a trial if they are not settled. This is the time when each side presents their evidence to either a Judge or a Jury. The two sides outline their version of what happened and what their version of the facts are. Similar cases with desirable outcomes for either side may be used to better refine why a particular side has the better argument and should win. Because of this, finding and presenting the right previous cases during a trial can prove to be invaluable. Ultimately, once both sides present all of their supporting data, the judge or jury determines who is right and then renders a verdict stating what each party must do to resolve the issue.
How Do I Get Out of a Lawsuit?
Their are many ways to get out of a lawsuit. All solutions involve an agreement between the parties. Even if a trial goes to a verdict, the judge will then assign an agreement that the parties must follow. Since an agreement is so fundamental to the legal process, any suit can be stopped at any point by both sides agreeing to settle the case. This can even occur after a full trial, as long as the judge or jurors have not come back with a verdict.
The real power that a lawsuit possesses is the ability to resolve a conflict that is backed by the force of law. However, if you are looking to avoid the full extent of a trial, below are some ways to exit prior to the actual trial:
Exit after filing the Complaint:
This is the first exit point. It is a powerful tool because if the other side does not respond, they lose automatically. If you are having trouble communicating or reasoning with your opposition, a complaint forces them to the table. If that is the main problem that you face, lawsuits can settle quickly after the parties are forced to begin negotiating.
Exit after Discovery
This is one of the most common exit points. Discovery allows you to examine their "proof" and sort out what the opposing side's case actually is. This process forces the other side to show their evidence for their claim and determine whether they are just bluffing or whether they have a valid case. Once both sides put their cards on the table, it allows each to analyze the other's argument. Many cases settle after each side knows what they are up against.
Exit at Trial
Once Trial has begun, it must be remembered that an agreement can be reached at any time. In more cases than you might expect, a settlement is created while the jury is conferring about what ruling to give. If the parties can agree, the court is always willing to accept that, even if it means dismissing the jury prior to hearing their decision. However, if a ruling is issued, that settles the matter for good. A very rare exception is if one side files for an appeal. The appeal process is very costly, making it an uncommon choice.
Exit at Any Point
The best exit strategy will always be decided ultimately by your specific situation. An initial consultation is usually enough to determine what main issues you are facing and to get an idea of what methods might be the most useful. If you would like to know more about our favorite exit method, click the button below for an in depth look at mediation, which we believe is the most powerful and cost effective solution to conflict.
Don't Worry. You Are Not Stuck!