The Ins and Outs of Litigation

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New clients often ask us how the litigation process works. How long will the litigation last? How much of my time will it involve? How intrusive will it be and how do we find out information? And, lastly, but only because of good manners, how much will it cost?

Filing A Complaint

A new lawsuit is set forth in a complaint. The complaint includes all of the causes of action (i.e., the legal claims such as breach of contract or fraud) and a factual recitation of the basic parties and the basic dispute. The complaint must be personally served and the defendants have thirty days to answer after receiving the complaint.

To Answer or to Challenge the Complaint

The defendants must either answer the complaint, which typically involves a denial of all of the allegations and any affirmative defenses (i.e., legal reasons why you are not responsible), or a challenge to the complaint (called a demurrer). A demurrer can eliminate a complaint or cause of action for good if the complaint on its face is defective. For example, if the complaint is filed too late, it may be challenged on a statute of limitations ground. However, in most cases, a court allows a plaintiff to try again to allege a valid cause of action. You need to ask your lawyer whether a demurrer is cost-effective in your particular case.

This is also the time at which a party must file any cross-complaint. The cross-complaint is any claims that the defendants have against the plaintiff.

Discovering Information: The Investigation

The case will then enter the discovery phase where the parties try to gather information relating to the case. This is often one of the most intensive and expensive aspects of a lawsuit. Discovery is usually written or through deposition, although in real estate cases it may also involve an inspection of the property. Written discovery is done through special and form interrogatories (written questions), requests for the production of documents (written requests for relevant documents) and requests for admissions (asking a party to admit or deny certain facts or conclusions of law). Depositions involve the questioning of parties or witnesses.

A party typically is not required to attend court hearings but must attend his or her deposition and any settlement conferences. The party will also have to spend time with his attorney preparing for deposition, helping to answer discovery questions, searching for documents and attending trial.

Motions: Resolving Disputes During Litigation

Motions are the means through which parties ask the court to do something prior to trial. If another party is not answering the interrogatories or producing its documents, a party will bring a motion to compel responses or production. The requesting party must file a brief with the court. The other party then has an opportunity to oppose the brief and the requesting party gets the last word with a reply brief. The parties then appear before the court for oral argument at which they present their positions to the court and the court rules on the motion.

The court will also schedule Case Management Conferences and status conferences in order to check on the status of each case.

Settlement Procedures

Prior to trial a court will typically send the case out to mediation, which is a voluntary settlement process before a neutral person who attempts to get the parties to compromise and settle the case. Right before trial the court may also send the case to a Mandatory Settlement Conference. This conference, typically before another judge in the court, is another voluntary attempt to reach a settlement prior to trial.

Pre-Trial Preparation

At a pre-trial conference, the parties must show up at court prepared for trial. This includes submitting evidentiary motions (called motions in limine), trial briefs, exhibit lists, witness lists, jury instructions and other necessary trial documents.

The Trial

The trial is what most people are familiar with from television and movies. It is each party’s chance to present his case, his witnesses and his evidence. Some cases are heard just by judges while some are heard by juries. Not all cases entitle you to a jury. In other cases the parties may simply elect to have the case heard by a judge rather than a jury.

It can often take a year to a year and a half to get to trial. An appeal by other side can easily add another year to the process.

Budgeting For A Lawsuit

Attorneys typically handle lawsuits on either a contingency basis or, more commonly, an hourly basis. In plaintiff’s injury cases and sometimes in large collection cases, an attorney will get paid as a percentage of the recovery. The attorney takes all of the risk. If there is no recovery or the case is lost, the attorney gets paid nothing. If he wins, he typically takes 30-40% of the amount collected.

In an hourly case the attorneys bill the case for all of the time they spend on it. There is no rule of thumb or magic number that helps a party determine what the cost of the litigation will be. The only thing for certain is that litigation is an expensive process.

The expenses will vary depending on how many witnesses there are, how long the trial will be, whether the other side is cooperative or not and other factors. A court trial (i.e., by judge) is often much less expensive than a jury trial and will take less time. Work with your attorney up front to establish a budget.

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Laine Wagenseller
Wagenseller Law Firm

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