I. Pre-Litigation Phase
This is the time period an attorney investigates the facts of the claim and before the lawsuit is filed. This is the “who”, “what”, “when”, and “how” of the case. For example, who are the proper parties? Who are the proper plaintiff(s)? Who are the proper defendant(s)? Who are the witnesses or potential witnesses and what will those witnesses say. What happened? How can the attorney establish what occurred. Many times, it is also established how and why it occurred. Was the defendant merely sleepily, or was there a training and organizational defect?
In many regards, it’s the most important step, because certain facts overlooked may result in the case going south.
This is why attorneys like to order as many documents as possible to investigate the claims. These documents can include police reports, autopsies, medical records and the like. Of course, once these documents collected, they must be carefully reviewed and analyzed.
During the pre-suit phase, an attorney must address technical and procedural barriers. Must advance notice of the claim be given? Must there be an expert report? Likewise, the attorney must wrestle with the question if there are any tactical advantages of providing advance notice?
Similarly, can the dispute be resolved without litigation? Sometimes, the answer is yes, and sometimes, the answer is no.
Finally, the attorney must be prepared and ready to respond to the defendants, including to the defendant’s discovery.
The sooner a lawyer is retained, the more time the attorney can devote to exploring these issues. If the case is rush, or poorly planned, the case can quickly get sideways and problems arise.
II. The Law-Suit Phase.
Filing and Service of the Lawsuit
The complaint outlines the basic allegations against the defendants. The filing of the complaint along with the summons is the official start of the lawsuit. The lawsuit must be personally delivered upon the defendant by a sheriff or private process server. This is called service of process.
After service, the defendant generally has 20 or 30 days to respond to the allegations contained in the complaint, by filing their answer.
The filing of the answer generally starts the time period of formal discovery. (See below).
Motions to Dismiss
Sometimes, even before an answer is filed, the defendant moves to dismiss the lawsuit, identifying a legal defect in the plaintiff’s case, and asking the judge to dismiss the plaintiff’s lawsuit, forever preventing the plaintiff from recovering anything. A motion to dismiss, along to with a motion for summary judgment are sometimes called dispositive motions, because these motions are filed to limit or foreclose one or more of the plaintiff’s claims.
For example, the defendant may argue that the statute of limitations has expired, or that the plaintiff failed to attach an appropriate expert affidavit, or that there was duty or relationship between the parties.
Needless to say, for the plaintiff, a motion to dismiss is quite serious. Most attorneys can anticipate a motion to dismiss, and even before the lawsuit is filed, has already briefed out the issues
Under any scenario, the filing of a motion to dismiss by a defendant will slow down the process, because each side has the opportunity to brief the issues, and the judge ultimately required to rule on the issues.
This is the formal process of establishing the “who”, “what”, “when” and “why” of the case. This is often the longest period of litigation. Depending on the type of case (medical malpractice, product liability, simple negligence), the number of parties, the number of expert witnesses, and whether the case is in the state court system or the federal court system, discovery could be as short as four months, and as long as 3 years. In special situations, it can even take longer.
There are three basic types of discovery.
i. Interrogatories (“Rogs”).
These are written questions served by one party on the other party in litigation. For example, parties usually ask the other to identify all fact witness to the event. In a car collision case, this might be any eye witnesses to the collision, as well as the identification of all medical doctors that provided care to the loved one. Likewise, the parties will ask to identify all documents that support either the claims or the defenses. Many times, this includes the production of all insurance policies, medical records, and bills. This might also include pictures of the collision or pictures of the decedent.
In responding to interrogatories, a party must provide written responses, made under oath. The defendants will cross examine a plaintiff on these responses, and the plaintiff should be prepared to respond.
ii. Request for production of documents (“RPDs”).
These are written requests to find and turn over specific documents. These RPDs can be served on any party, as well as non-parties. The term ‘document’ is a very broad term, and it includes both electronic and paper materials. It includes medical records, autopsy reports, police reports, cell phone records, tax returns, 1099s, W-2s, as well other related documents, such as e-mails, contracts, bills, etc.
This is where a party’s attorney will ask questions of various witnesses before coming to trial. The depositions are generally taken in the attorney’s offices, and the depositions are taken under oath. These are often depicted in the law related TV shows.
One of the reasons that discovery is often so long, is because the parties need to take the depositions of the expert witnesses retained by both sides. The expert witnesses are witnesses that have no personal facts of the underlying event, but who have opinions about what occurred based upon their education and training. Many times the experts are doctors or engineers that explain to the jury what occurred from a scientific perspective.
Motions for Summary Judgment
At the end of discovery, each party may file a motion for summary judgment to eliminate one or more of the claims or defenses. These motions are decided by the judge, and not be the judge.
These motions are really mini trials, whereby each side seeks to introduce evidence showing or demonstrating their side of the case. These motions can be quite extensive, and the attorneys spend significant time in preparing for and presenting evidence in their motions. Usually, all the depositions in the case are submitted for the judge’s review, as well as the critical documents.
These motions, just like motions to dismiss, are critical and quite serious for the plaintiff, because they can end the claim even before trial. Fortunately, these can be appealed, but under any scenario, the process will slow down the case significantly. Given that most judges are overwhelmed, these motions often are not ruled upon for quite some time period.
These motions are similar to motions for summary judgment, whereby the issue or question is the admissibility of a party’s expert’s opinion. The motion is based upon the the U.S. Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), in which standards for admitting expert testimony were outlined in an attempt to avoid “junk science” from being admitted to the jury.
Once again, these are mini-trials, and if an expert’s opinion is eliminated, the party’s case will likely be significantly damaged.
III. Trial Phase.
This is the time whereby the parties put up their evidence, and ultimately, the jury makes a determination as to which side will win. TV has done a good job of showing how a trial basically works. Witnesses are called to testify, and each of the party’s attorneys may question or cross examine the witness. The jury is the ultimate “finder of fact”, and determines the outcome of the trial. In wrongful death actions, and in all injury actions, the jury will resolve two basic questions, liability and damages. Liability answers the question if the defendant responsible for the injury to the love one. Damages answer the question as to the amount of money that the defendant has to pay if the defendant is found responsible.
Motions in Limine
These motions are pre-trial motions, used to exclude specific facts or evidence. For example, a defendant driver in a motor vehicle collision might wish to exclude their prior driving record. The defendant arguing that if the jury knew the defendant had three prior speeding tickets, that the jury might naturally conclude that the defendant was also speeding here. Likewise, in a medical malpractice action, the doctor might wish to exclude a prior claim of medical malpractice. The parties can also challenge the sufficiency of the evidence or even if the evidence is admitted into trial.
IV. Post Trial Activity
While one might think that after a jury has made a decision that the case is over, there are many more additional parts of litigation.
Many of the decisions of the trial judge can be appealed and reviewed by an appellant court. Appeals are not limited to just the time period after trial, but after a motion to dismiss or a motion for summary judgment. In short, the moving party is requesting that the appellant court overturn the trial judge’s ruling.
It is difficult to win on appeal. Most of the time, the appellant court’s will side with the trial judge. Of course, sometimes an appeal is successful.
Appeals, like motions for summary judgment, are briefed extensively, and there can be oral argument before the judges.
Depending on the outcome of the jury trial or appeal, sometimes, cases will need to be re-tried.
Settlement can occur at any point in time, from before the lawsuit is filed, after a case is tried, and after a case is appealed all the way to the US US Supreme Court. Settlement concludes the litigation.