Sometimes it seems as if lawyers and judges have a playbook that regular people don’t have. Is acceptance into law school and passing of the bar an acknowledgement that lawyer-types are super smart with capabilities far beyond what everyone else has? Or do lawyers get a special litigation book when they pass the bar? Nope and Nope.
Litigation is a process that can be understood by average people like us. Though it’s governed by rules, laws, regulations, and procedures, it’s written in plain English (mostly). Any playbook that lawyers and judges have come from these laws. They “run” the plays well because they’ve dealt with more cases than we have. Since we have just one, we must run the plays on a learn-as-you-go basis. That requires starting with the basics, like understanding the structure or stages, of litigation.
About the Stages of Litigation
You don’t get more basic than the stages of litigation–the chronological pieces of the court process, a lifecycle of a case. Litigation stages can be described in a number of different ways. Yet, every case has a beginning (complaint and answer), a middle (discovery), and an end (trial and or appeal). Knowing the stages of litigation might help you understand what to file when and save you anguish when a lawyer who doesn’t have much of a case tries to pull a fast one on you.
In one case, a lawyer, believing a pro se litigant knew nothing about the legal process, moved for summary judgment before discovery began and without addressing the litigant’s answer and affirmative defenses. The litigant knew better. He didn’t get hoodwinked. He set the lawyer and the judge straight. Had he not known litigation stages, the lawyer might have gotten away with it.
The next sections will discuss the litigation lifecycle and what to expect in each stage of it.
Stage #1: The Complaint Stage
The complaint stage starts with the aggrieved party, the plaintiff, filing a complaint against the defendant. The complaint is in the category of a pleading, an initial document explaining the basic position of a party. It includes details of the alleged wrongdoings of the defendant for which the plaintiff is holding them accountable.
The complaint is delivered to the defendant in what is known as service of process. This stage of litigation ends when the plaintiff receives a default judgment or when the defendant responds to the complaint filed against them.
Stage #2: The Answer
After the filing of the complaint and delivery of the summons, the defendant gets the chance to respond. The defendant can respond with an answer, affirmative defenses, counterclaim, and or other pleading.
Strategically though, an “Answer” or other pleading is not always the best first response to a complaint. There are several other choices. The defendant can move for extension of time to answer, move for further clarification on the complaint, move to strike the complaint, or move to dismiss it.
Eventually, the defendant will have to answer. When the court orders him to, he must answer each allegation in the complaint. He can assert affirmative defenses at the same time. He may even file a counterclaim alleging that the plaintiff is liable to him.
Stage #3: Discovery
At this stage, each party gathers evidence from the other. This requires a clear understanding of the facts and the law so that the information gathered is right, relevant, and useful. The parties will end up doing background research, reviewing legal documents, questioning witnesses, and the like. In a typical case, discovery is the longest stage of litigation.
The discovery stage might include requests for interrogatories, requests for production of documents, depositions , motions to compel discovery and more. People often move for summary judgment during discovery or at the end of it based on the evidence they’ve collected. This is also a stage where the parties may seek to settle the case or to narrow issues for trial.
Stage #4: Trial
The trial stage involves the parties presenting and arguing their case before a judge or jury. The judge or jury then weigh the evidence to settle the case. A trial without a jury is called a bench trial. Below is an overview of a trial.
- Voir dire–jury selection
- Opening statements by the plaintiff
- Opening statements by the defendant
- Questioning of witnesses and introduction of evidence by the plaintiff
- Questioning of witnesses and introduction of evidence by the defendant
- Closing arguments
- A judgment or verdict
In most cases, the judgment is issued at a later date. Once the judge makes a decision, the losing party must pay to the other whatever the court decides.
Stage #5: Appeal
An appeal is a review of a case by a higher court. There are two types of appeal, one during a case and the other at the end. Either party may appeal a judge’s ruling during the case. This is known as an interlocutory appeal. The person appealing writes a petition asking the higher court to review the ruling. The higher court can choose to take or reject the case.
An appeal at the end of a case is called a final appeal. The party that didn’t prevail in the case has a right to appeal a final order. That party files a notice of appeal, which sets the due date calendar for all appeal briefs.
In the higher court, arguments are presented, usually in writing, along with a record of evidence. Eventually, the higher court delivers a mandate, or order stating its ruling.
The Final Word
Lawyers and judges know you have a single case. They know you don’t have much experience in litigation. So lawyers try to take advantage by pulling out their playbook of lawyer tricks while judges practice judicial bias to move the case along despite what you need.
To lessen the chance of either of these behaviors negatively impacting your case, understand the case and the process. Knowing what should happen at each stage of a case is a step in that direction.
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