Pleadings Each party in a lawsuit files initial papers, known as "pleadings." The pleadings explain each party's side of the dispute.
The Complaint: Litigation begins when the plaintiff files a complaint with the court and formally delivers a copy to the defendant. The complaint describes what the defendant did (or failed to do) that caused harm to the plaintiff and the legal basis for holding the defendant responsible for that harm.
The Answer: The defendant is given a specific amount of time to file an answer to the complaint. The answer provides the defendant's side of the dispute. The defendant may also file counter-claims against the plaintiff, alleging that the plaintiff has harmed the defendant and should be held liable for that harm. Sometimes, the plaintiff responds to the defendant's answer or counter-claims by filing a reply. In some instances, in lieu of an answer or reply, a party may request that the other party clarify or correct deficiencies in its factual allegations or legal theories, or may ask the court to dismiss part or all of the suit. This may lead to amended complaints or amended answers. Once the parties have completed the complaint, answer, and any reply, the issues for resolution by the court have been defined.
Settlement Conference Settlement Conference: Parties and their representatives must attend the settlement conference on the date indicated in the Notice of Settlement Conference.
The purpose of your settlement conference is to:
a) Resolve some or all of the issues in the action.
b) Encourage settlement of the action.
c) Help you get ready for trial.
d) Provide full disclosure among the parties of all the relevant facts and evidence.
There are many good reasons why parties should try to settle their dispute before going to trial: a) It saves time;
b) It saves money;
c) It avoids the complexity of a trial; and
d) It gives you the power to resolve your dispute on your own, rather than have the judge resolve it for you.
The role of the judicial officer at a settlement conference is to listen to the parties positions, to deal with any procedural problems, and to give you an opinion of how your case will likely be decided if it goes to trial. There is no obligation to settle. A good settlement is one where both parties have engaged in a fair compromise.
Often a claim or defense requires support from expert witnesses to explain technical information or validate an argument. One or more experts might be needed to testify about the connection between the defendant's conduct and the loss suffered by the plaintiff, or the existence and amount of the plaintiff's damages. Expert witnesses work closely with a party's representatives and attorneys to prepare the party's case.
Before trial, the parties may use motions to ask the court to rule or act. Motions usually pertain to law or facts in the case, but sometimes they seek clarification or resolution of procedural disputes between the parties. Some motions, such as a motion for summary judgment, which asks the court to dismiss part or all of a plaintiff's case or a defendant's defense, dispose of issues without trial. Other motions might ask the court to order a party to produce documents or to exclude evidence from trial.
The duration of a lawsuit depends on the issues of the case, the amount of discovery to be conducted, and court scheduling and availability. The parties, guided by the rules of court, usually decide the timing of discovery. Trial dates are set by the court. Timing and scheduling differ between state and federal courts.
At trial, the parties present evidence in support of their claims or defenses to a judge. Trial: Immediately before trial, each party provides to the judge a document, called a "brief," that outlines the arguments and evidence to be used at trial. Once the trial begins, each party presents its outline of the case in an opening statement. Then, the parties present evidence. Each party may call witnesses or introduce documents and exhibits in support of its arguments. After each witness is called and questioned, the opposing party has an opportunity to cross-examine the witness. The plaintiff presents evidence first, then the defendant. Sometimes, the plaintiff is allowed to present additional evidence, called rebuttal evidence, after the defendant has finished presenting its case. Once all the evidence has been presented, the parties give their closing arguments. After closing arguments the judge then deliberates and reaches a decision.
Costs and Fees
The party who prevails at trial will request court to order the losing party to pay the prevailing party's costs to prosecute or defend the case. Recoverable costs are defined by rule, statute, or private
Following trial, a party dissatisfied with the result may appeal. During an appeal, a party asks a higher court to review the trial court proceeding. The parties present their arguments in briefs, which are submitted to the appellate court along with the record of evidence from the trial court. The appellate court usually reviews a case for legal error only. Except under unusual circumstances, the appellate court will not review factual evidence or override a jury's findings of fact. The appellate court announces its decision in a document called an opinion. The appellate court will affirm the verdict if it finds that there was no error in the trial court proceeding. However, if there was an error, the appellate court can reverse the verdict or order the trial court to conduct a new trial. An appeal can extend the litigation process by a year or more.
Alternatives to Litigation
Alternatives to litigation usually save time and expense, but they may not result in a final resolution of the dispute. The desirability of these alternatives should be evaluated early to allow their timely implementation. Settlement: It is generally wise at the outset of any litigation proceeding to review the potential for an out-of-court settlement. Indeed, most matters settle before reaching the trial stage.
Settlement can be discussed by any party at any time during litigation and is often a cost- effective alternative to trial. Usually the court does not require the parties to discuss or attempt
settlement, but most courts have procedures by which a party can request the court's assistance in settlement.
A positive result in litigation is nearly always the product of teamwork. By using a team approach, clients and legal counsel can adopt the litigation strategy that best suits the clients' risk tolerance and overall business objectives. Clients contribute by providing business expertise and knowledge of the facts. Legal counsel, meanwhile, provide expertise on the legal issues, the trial process, the client's options for resolution, and the potential risks and rewards of each option.