Litigation
The process of litigation includes many steps. These procedural steps are fairly uniform, and controlled by state as well as federal regulations. Whether or not the case goes to trial, the process still involves a large amount of time and work. If you are considering litigation, or are faced with litigation, an attorney can advise you about your jurisdiction and possible legal options.
It is also possible to pursue claims through a more informal small claims court. Small claims courts generally deal with nuisance claims or those involving a small amount of money. Jurisdictions differ in the requirements for a case to enter small claims court. This is generally the first place to pursue smaller damages.
The steps that generally make up a litigation include:
Pleadings. The pleading is an initial filing which describes the claims and defenses of the parties in a suit. The plaintiff files a complaint, which asserts the claims against the defendant. The defendant files an answer, which may contain defenses or counter-claims. It is also possible to file a third-party action at this time. Pleadings must be served on all involved parties. The defendant can choose to seek dismissal of the claim in their answer.
Motions. Pre-trial motions can be used for several purposes. They can request the dismissal of an action, narrow or exclude issues under litigation, or resolve actions legally. Motions may be considered by the presiding judge or in some cases by a hearing officer or referee. Cases can succeed or fail on the merits of these motions before the court trial begins.
Discovery process. Discovery is part of the pretrial proceedings. The discovery process allows attorneys the opportunity to research and investigate claims by the opposing party. Facts discovered during this process may be presented to the court at the trial or through motions. Sometimes, this process may resolve a claim without a trial and lead to settlement discussions.
Pretrial conferences. The pretrial conferences establish the ground rules of the case and allow the attorneys to prepare any witnesses and discuss issues with opposing attorneys.
Trial. Trials may be presided over by a judge, a jury, an arbitrator, or a hearing officer. Both parties are given an opportunity to present evidence, examine and cross-examine witnesses, and make opening and closing arguments. As we have seen, though, the trial is a small part of the overall litigation process. The trial can occur months or years after the initial pleadings are filed.
Judgment. The court renders judgment at the end of a trial, whether presided over by a judge, jury, or other officer of the court. The judgment can result in damages or a court order requiring a party to take specific actions. Most business litigation seeks monetary damages; often, the judgment is used as a lien against assets or property of the unsuccessful party until resolved.
Appeals. Generally, either party can appeal the court’s judgment. An appeal can be based on an assertion of error by the court, or a petition for a de novo review. A de novo petition asks the appellate court to review the case without referring to the earlier judgment, on the basis that the law was incorrectly or inappropriately interpreted or applied.
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