What do you want from a lawsuit? A settlement? A favorable judgment? A delay? The return of your children to your custody? For people new to litigation, the goal might be to simply stay in the game. That goal makes sense because the longer you’re in, the more likely you’ll “win” or at least be heard. Winning begins with understanding the stages of litigation so you can formulate strategies.
There’s no real agreement on how many litigation stages there are, four, five, six or seven. For our purposes, it doesn’t matter. What’s important is that there are stages, that they may overlap, and that the strategies you use for each are critical to your ability to stay in the game.
For the sake of convenience, we’ll define five stages of litigation. The first is the complaint stage, followed by the answer, discovery, trial, and appeal stages. Let’s take a peek at simple strategies and common filings for each.
The complaint stage begins when a complaint is filed or when the defendant is served with the complaint. It ends when the defendant responds or when the plaintiff gets a default judgment. A plaintiff’s strategy for staying in is to (1) sue for something the law allows; (2) prepare and file the complaint according to the rules of civil procedure; and (3) deliver the complaint properly to the right person.
A defendant’s strategy is to (1) timely and adequately respond to the complaint; and (2) look for procedural defects in the complaint, summons or service of process.
Common Filings During the Complaint Stage
- Motion for Extension of Time
- Motion for Default Judgment
- Motion to Vacate or Open Default
- Motion to Dismiss
- Motion for Costs
- Motion to Strike
Related Blog Topics
At this stage, the defendant has acknowledged the complaint by filing motions or attending hearings. He also has no grounds for dismissal that he wishes to pursue. If the judge orders him to formally answer the complaint, he must respond to each allegation by explaining his behavior or saying the allegation isn’t true (Answer). He can also say, “I did it but I’m not liable” (Affirmative Defense), or he can allege that the plaintiff is liable too (Counterclaim).
The plaintiff’s strategy is to look for ways to challenge the defendant’s answers, move to strike each affirmative defense, and try to dismiss the counterclaim by identifying missing facts or elements.
Common Filings During the Answer Stage
- Affirmative Defenses
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During the discovery stage, the parties gather evidence to prove or disprove a claim, counterclaim or affirmative defenses. This stage can actually begin during the answer stage. A clever defendant might, for instance, begin discovery early and keep it going in order to harass the big, mean bank that sued them.
Here, strategies for the plaintiff should include the use of discovery techniques to gather evidence that supports his claims and refutes the defendant’s affirmative defenses and counterclaims. For the defendant, strategies should include the use of discovery to gather evidence to support his affirmative defenses and counterclaims and defeat the plaintiff’s claims.
During this stage, whether you’re the plaintiff or defendant, a good strategy is to object to discovery requests that call for information that is irrelevant, privileged, burdensome, and so on. If you don’t you may not be able to bring it up later.
Common Documents for the Discovery Stage
- The Request for Admissions
- The Request for Production
- The Request for Interrogatories
- Notice of Filing Transcript
- Motion to Compel Discovery
- Motion for Protective Order
- Subpoena (for deposition)
- Motion for Summary Judgment
Related Blog Topics
- Get Evidence On The Record With Discovery
- Don’t Wait To Start Thinking About Litigation Discovery
- Gotcha! The Unintended Admission That Kills Your Case
A trial is an attempt to settle a dispute by weighing the evidence presented in court. It’s like two competing plays. The judge or jury will decide which version of the play is better — yours or your opponent’s. Which side is more credible? Which side has more evidence?
So, if you’re the plaintiff, you must make your “performance” compelling by gathering more and better evidence than the defendant. If there’s a “tie”, you lose because you have the burden of proof. As the defendant, your goal is to present enough evidence to make the judge or jury doubt the plaintiff’s claims.
A good strategy for both parties then is to keep out evidence harmful to your case and fight to keep in evidence that helps it. Just as at the discovery stage, at trial, whether you’re the plaintiff or defendant, you should object to the inclusion of evidence you deem inadmissible. If you don’t, the issues may be deemed waived, and you may not be able to appeal on those issues.
Common Filings During the Trial Stage
- Motion for Continuance
- Motion for Nonsuit
- Motion for Judgment Notwithstanding the Verdict
- Motion for Directed Verdict
- Motion for Judgment as a Matter of Law
- Motion for a New Trial
- Motion in Limine
- Motion to Strike
Trial Blog Topics
There are two major types of appeal, one that takes place at the end of a case and one that takes place in the middle. Appeals that take place at the end of a case are called direct appeals. A person losing a case has a right to directly appeal the decision to a higher court.
Conversely, an appeal during the middle of a case is called an interlocutory appeal. There is typically no right to an interlocutory appeal, so the person appealing has to do so by petitioning the court. A higher court can choose to take the case or not.
Strategically, the person who lost in the lower court must tell the appellate court the legal errors made by the lower court and why they were wrong. The person who prevailed in the lower court must show that the court’s decision was the right one.
Common Filings During the Appeal Stage
- Notice of Appeal—required in a direct appeal
- Petition for Writ of Certiorari—required for an interlocutory appeal
- Appellant’s/Petitioner’s or Initial Brief
- Appellee’s/Respondent’s Brief
- Reply Brief
Appeal Blog Topics
- The Interlocutory Appeal — What, Why and How
- The Pain Of Losing A Case On Appeal
- The Date A Court Order Is Signed Means Nothing
The strategies above are very basic. They’re designed to give you an idea of things to look out for at certain points in the litigation process. Understanding the process will help you formulate basic strategies to put up an effective fight.