Litigation: What to Expect
Many people, when they come into any attorney’s office for purposes of litigation, have never been through the process before. Many perceptions or beliefs, obtained from the media, television, or film are starkly different than the realities of proceeding through the litigation process in State or Federal Court. To clarify the process, define expectations, and hopefully ease anxiety in the process, we have outlined some basics below.
Litigation – What it means
Litigation means proceeding forward in a contested case in any one of a number of different forums. These forums can range from Circuit Court (State Court) to Federal Court to arbitrations, and contested case hearings at the administrative law level. Where the case is filed, and how it proceeds will depend largely on the nature of the dispute.
Although Oregon Circuit Court adheres to a “rocket docket,” the practical realities of litigation these days, is that a proceeding, from its inception up through trial can frequently taken in excess of 18 months. Complex litigation, such as construction, real estate, and complex business litigation can take in excess of that time. Most clients when they embark on the process wish for a speedy resolution of the matter. The speed with which the case is resolved depends on a number of factors. The factors are customarily the willingness of both parties to mediate, the degree of animosity of both parties, and the amount at issue. Not surprisingly, one party may feel the matter is “cut and dry” and hope for a speedy resolution. Conversely, another party may perceive the dispute as “a matter of life and death,” and wish the take the matter all the way through hearing. As such, it is certainly possible that you and your attorney have every intention of quickly resolving a matter, but because of the attitude of the opposing party, the litigation may take longer.
In short, although it is possible to give an educated guess with respect how long a matter can take, it is critical to have a realistic expectation.
THE LITIGATION PROCESS
If you are a plaintiff in a lawsuit, you will begin by filing a Complaint. Conversely, if you are being sued, you will have been provided with Summons and Complaint. The purpose of the Complaint is to outline the essential facts, underlying the dispute, and the legal theories under which the case will be tried. In order for a lawsuit to be started, the opposing party needs to be served usually in person, with a copy of the Complaint.
If the attorney representing the Defendant in the case determines the Complaint is sufficient, they Answer will be filed. If there are defenses to the claims being asserted, these will be contained in the Answer. A Defendant may also take the opportunity to assert “Counterclaims” against a Plaintiff in the dispute.
Sometimes, an attorney deems a Complaint as defective for a variety of legal reasons, they may choose to file motions against the Complaint, before answering it. These motions are heard by the trial court, and depending on the issues involved, will either result in a denial of the motion, in which case the Defendant needs to answer, or in having the motion allowed, in which case will either be dismissed, or will need to be changed to meet the directions of the Court.
Depending on the complexity of the motions, and the number of issues involved, this process can take several months.
At the same time the “pleadings” are being handled, the parties will usually be involved in what is called “discovery.” Discovery is the process by which the parties exchange information related to the dispute. In cases involving contracts, construction, or business litigation, this can involve gathering numerous documents, and providing them to the opposing party.
Occasionally, the parties will have a substantive disagreement with respect to the nature and extent of the documents which need to be produced. For instance, the Plaintiff in a Breach of Contract case may believe that all of the prior documentation of the Defendant with respect to any prior contracts of that kind is relevant, and should be produced to show a pattern. Conversely, a defendant might believe that prior contracts are completely irrelevant. When there are these disagreements, if the parties cannot agree, motions are again filed with the Court to “compel” these documents.
Once discovery documents have been exchanged and the majority of the issues regarding documentary discovery have been resolved, the parties will customarily embark on depositions. Depositions are statements which are made, under oath, in front of a court reporter, and can last anywhere from an hour to several days. Depositions are used for two purposes. The first is to obtain information regarding the dispute. The second, is to give the opposing attorney an opportunity to assess the relative strength or weakness of the deponent as a potential witness.
Once depositions occur, the proceedings are transcribed, and are reduced to a booklet, which can then be used to cross-examine witnesses if the matter proceeds forward to trial.
At any point during this process, although it usually happens after preliminary discovery has occurred, the parties may try to mediate or settlement the case.
Mediation is a process where the case is referred to a impartial third-party who is not a fact finder, but rather an individual who attempts to bring the parties together to resolve the case, rather than moving forward to finder of fact.
The process of mediation, especially with complex cases, usually involves preparing a mediation brief, and providing the mediator with important information. During the mediation process, parties are usually in separate rooms, and during the process, a mediator will try to bring the parties close enough to settle the case.
Whether or not mediation is ultimately successful will depend in large part on the demeanor of the parties. A significant factor is the perception by the parties of their relative strengths and weaknesses moving into the case.
MOTIONS FOR SUMMARY JUDGMENT
There are cases where one party (usually the Defendant) believes that on the law and facts, the case be disposed of before trial. These motions are time intensive, as they involve essentially trying the case on paper to the court. Depending on the complexity of the case, and the difficulty of the legal issues involved, a Motion for summary judgment can take between twenty five and forty hours to litigate. In some cases, once a Motion for summary judgment has been decided, the parties will try again to settle the case.
Ultimately, if the case at mediation is unsuccessful, the matter will proceed to trial.
In the case of an arbitration, the trial hearing involves submitting evidence and witnesses, although in a less formal setting than a court trial, to one arbitrator or a panel of arbitrators. Evidence and witnesses are presented, by the Plaintiff first, and subsequently by the Defendant.
Similarly, court trials involve submission of evidence and witnesses to the finder of fact. The “finder of fact” can be either a judge or a jury, depending on whether the parties have agreed before hand to submit the matter to a jury, or whether under the applicable law can or should be heard by a jury.
Prior to moving forward to moving forward to a trial, the lawyers will need to prepare for trial, which will involve an intensive period of meeting with witnesses, preparing exhibits, outlining examinations, and preparing documents such as a trial memorandum, and Motion in Limine. It is reasonable to expect your attorney to spend anywhere from one day to a week preparing for a trial, depending on the nature and extent of the case.
Once the matter is scheduled for trial, a trial can take, depending again on the nature and extent of the case anywhere from a day to two full weeks.
Finally, once the witnesses have been submitted, and the evidence is in, the finder of fact renders a verdict, which is ultimately converted to a judgment. The judgment is the document which is the final decision of the court, and it is the pleading which is subject to appeal.
The process outlined above can take anywhere from eight months to a year and a half. Litigation, like surgery, is not a process to be entered into lightly. It is, however, the best, and time honored manner for organized efficient dispute resolution. Like surgery, having any attorney who has been through the process before, is always advisable. For additional resources, visit our Resources page.