Prevailing at Trial
9 Steps to the Litigation Process
While every case is fact specific and therefore, different, most cases involve many of the same steps. These include:
1. Initial investigation and/or legal research for possible legal causes of action based on the facts of the case and the client’s grievance. This is a good time to locate the Defendant(s) so that personal service of process can be had. It is also important to investigate whether the Defendant(s), ultimately, will be collectible (unless you do not care and will be happy with a paper judgment alone);
2. Presuit demand (when warranted, most commonly used in personal injury cases or breach of contract cases);
3. Preparation of the Complaint and filing of the lawsuit in court;
4. Locating and serving the Defendant(s) with the court documents;
5. Defendant’s response to the Complaint may consist of filing a Motion to Dismiss based on lack of legal cause of action, jurisdictional grounds, or lack of standing to sue. A response to a Motion to Dismiss is required, which entails preparation of legal briefs and having a hearing in court as to why this case should not be dismissed;
6. Motion to Dismiss. If the Motion to Dismiss is Denied, Defendant will file an Answer, and may also file Affirmative Defenses and a Counterclaim.
7. Discovery. Often the largest part of the lawsuit is spent on discovering evidence and information from the other side and learning what information the other side will use at trial (such discovery process is in stark contrast to the European system, which includes very limited discovery). Basically, no one should go to trial and be blind-sided (this is not Perry Mason on TV). Discovery may take years to complete based on the complexity of the case. Discovery includes the exchange of written questions and answers under oath, requests for documents and electronic documents, depositions (oral questions under oath and usually face-to-face), and other activities such as site inspections.
8. Motion for Summary Judgment. This is often utilized once all discovery is completed. It could be pursued as early as once the case becomes at issue (after Motions to Dismiss are resolved and an Answer is filed). It is viewed as a mini-bench trial and is invoked when there are no questions of material facts that are in dispute in the case, and the case can be decided as a matter of law.
9. Trial. Trials can be jury trials or bench trials (a trial without a jury; the judge decides the case).
If you do not settle the case (see our article on Chances of Prevailing at Trial), and ultimately prevail at trial, you may have to initiate what are known as ancillary proceedings to collect a Judgment.
The information on this website is for general information purposes only. Nothing on this or associated pages, documents, comments, answers, e-mails, or other communications should be taken as legal advice for any individual case or situation. The information obtained through this website is not intended to create an attorney-client relationship.