The 5 Phases of Litigation
One of the most frequent questions we are asked is what exactly you can expect during litigation. Generally speaking, there are five different steps to the civil litigation process from start to finish.
Pleadings – In this first phase the person(s) bringing the lawsuit files the lawsuit. This is called a “Petition” or “Complaint.” The petition is served on the person or entity who was sued, the defendant, and, if it is a state court case they usually have between 20 and 27 days to file their response, or “answer.” If it is a federal court case the defendant may have the option of waiving formal service and extending their deadline to answer, usually by 60 days. The defendant may also have the opportunity to file various motions challenging things like venue at this time.
Written Discovery – After the defendant files their answer the next step usually is the exchanging of written questions and requests for documents and photographs. This is called discovery. This phase may take only a month or it may take several months or even a year or more depending on complexity of the individual case.
Oral Discovery – When the documents have been exchanged the next step is usually the taking of depositions. A deposition is a question and answer session with the other side’s attorney while the witness is under oath. A court reporter transcribes everything that is said. A deposition my take only a couple of hours, or it may take a couple of days depending, again, on the individual case. Often, it is the parties to the lawsuit and certain key witnesses that will give a deposition.
Motions & Mediation – after the depositions have been conducted one side or the other may file a motion asking the court to dismiss/or conclusively establish a portion or all of a case. Normally, this is only done after all the documents have been exchanged and the key depositions have been taken because it is at this time that most of the facts are known. It is also at this time that a case may be referred to mediation. Mediation is a non-binding activity where both sides come together with an impartial third party – this person is often a retired judge or an attorney that specializes in dispute resolution. Each side will present key components from their case and the impartial party, or mediator, will attempt to work out a resolution between the parties. Mediation is often successful but there is no obligation for any party to settle the case.
Trial – the last step in the litigation process is usually the trial. If the case cannot be resolved or settled, then a jury (sometimes a judge) will decide. Because there are many other people and companies that want their day in court, it is not unusual for the trial to take place 18 months or more after the initial lawsuit is filed.
There are always exceptions to this process, and sometimes motions will be filed when discovery has not been completed, but generally this is the process that every case will go through. There is also the possibility that after a trial one side or the other will appeal. If this happens, the appellate process can take several more months or even years if the issues involved are complicated or novel.