There are several phases of litigation that parties should understand and consider before paying that initial filing fee to instigate or defend a lawsuit.
Litigation - Initiation of the lawsuitThe phases of litigation should be considered before one initiates a lawsuit as a "plaintiff" or abandons pre-lawsuit negotiations as a "defendant". The tools employed by the litigator specific to each phase may have the intended, or unintended, effect of drawing out the dispute and increasing cost. Increasing costs would diminish the value of potential recovery for plaintiffs and add to costs for defense where the payment of costs and attorneys fees may otherwise be allocated to settling claims. An attorney should assess the likelihood of recovery or defense and take the emotion out of the case, which unfortunately is the greatest factor that unnecessarily drives litigation and its costs.
The first phase is the preparation of the pleadings, e.g., the complaint and answer, and fine tuning them so that the allegations amount to a viable claim or defense. Generally, the burden falls on the plaintiff/claimant to assure that the allegations are specific enough to give defendants reasonable notice of the basis for the law suit.
Other "Motions" after pleading are prepared and servedDisputing pleadings are made through "motions", which are formal requests to the court to do or not do something for the "moving party". In federal court they are called motions to dismiss and in state court these motions are called demurrers. After a motion is served, a responding party has a certain amount of time to oppose the motion prior to the hearing date. After the moving party files a "reply", the court rules on the motion on the hearing date or a short time thereafter. As such, there is the "motion", the "opposition", the "reply" and then the "order" after hearing which generally will take at least four weeks to complete . The rulings on the whether or not the "attack" on the pleadings should be "sustained" are determined by the "four corners of the pleading", i.e., the court generally does not consider outside evidence and only looks at the allegations in the face of what the law requires without regard as to the truth or falsity of the allegations. However, see page on defamation and invasion of privacy as it relates to California's Anti-SLAPP statute (C.C.P. *425.16), where a court will consider declarations outside of the allegations in a pleading to rule on a special motion to strike that attacks complaints that are based on and affect the rights of free speech and petition.
There can be multiple rounds of motions attacking the pleadings. For instance, after the court rules that the motion to dismiss or demurrer is "sustained" as opposed to "overruled" or "denied", i.e., that one or more of the claims in the complaint is deficient because it "fails to state a claim on which relief can be granted", then the court may or may not permit the pleading party "leave to amend" the pleading to allege other facts to cure any deficiency. The court may permit the pleading party a certain amount of time to file an amended complaint, after which the other parties would have another chance to attack the pleading, paving the way for the possibility of another round of a motion, opposition, reply and order.
Eventually, either (1) the court will rule that the pleading party has not and cannot in good faith allege facts that amount to a claim(s) for relief and directing the case to be dismissed if no claims exist or for the defendant to answer the remaining claim(s) ; or (2) the court will rule that the pleading states facts that amount to claim(s) for relief and also direct the defendant to answer the remaining claim(s). After the person(s) to whom the pleading is directed answer the complaint, the case is "at issue".
After the case is "at-issue"When the case is at issue, the court will set the schedule of the case by setting a trial date at a "case management conference." In state court, the deadlines setting the phases of litigation flow from the setting of the trial date, for example when discovery closes, the last day to file a motion, the last day to name experts, etc. In federal court the schedule of the case is set at the "Scheduling Conference", regardless of whether or not the case is at issue.
After the defendant(s) are served, generally there is a short holding period before formal "discovery" commences. When discovery commences, formal requests are made between the parties to assist in determining the facts at issue. Discovery requests come in the form of, for example, (1) requests to respond to written interrogatories, i.e., questions; (2) requests to produce documents; and (3) requests to admit whether certain facts exist or do not exist. The responding party is given a period of time to respond, thirty days in both federal and state court. Although fairly expensive, "depositions" of parties and/or witnesses may be conducted in which parties ask questions of witnesses while a court reporter records questions, answers and objections, to be later transcribed into a written transcript of the proceedings. All discovery requests must be made in good faith and not used to harass witnesses. Responses are made under penalty of perjury to be later used at trial if the parties so choose.
Summary JudgmentThe next procedure/phase of litigation is summary judgmentThe moving party may attempt to prevent further litigation by filing a summary judgment motion, showing the court that there is no need to present the factual issues before a jury, if a jury trial is requested, or judge, if a "bench" trial is requested. The moving party must show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law" (Federal Rule of Civil Procedure Rule 56); or "there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law" (California Code of Civil Procedure *437c); or "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Rule 56 Hawai'i Rules of Civil Procedure.) Essentially a judge may grant the motion and end the litigation if he or she believes that the undisputed facts, when applied to the law, could only lead to one conclusion, e.g. that a plaintiff can or cannot establish the elements of one or more claims or defenses and thus one of the parties should prevail on the claim or defense. However, if there is any fact that is both material, i.e., has a consequence in the case, and reasonably disputed, then the case will proceed to trial. In ruling that a plaintiff can prevail means that the court will permit that plaintiff to proceed to trial and prove his, her, or its case. As the United States Supreme Court put it, "[t]he moving party is entitled to a judgment as a matter of law because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex v. Catrett 477 U.S. 317, 322-323 (1986.)
Trial and CollectionsThe next phase is trial, either by jury or bench. This phase is always the wild card, especially with a jury. A court might be able to telegraph where the case is headed if the parties participated in rounds of motions, for example after a ruling on a motion for preliminary injunction or after the motion for summary judgment. However, there is no such reality as the "sure thing" or the "slam dunk". Any attorney who has made an argument in front of a jury will attest to this truth.
The final stage is collections. Hopefully, after participating in these stages of litigation that usually take over year, or years in many cases, a plaintiff will have judgment satisfied by a solvent defendant. Collection can go on for years or end abruptly if the a party is found to have a dischargeable debt through bankruptcy and that party chooses to file for bankruptcy. Judgments can also go against a losing plaintiff or in certain circumstances when a plaintiff did not recover enough to justify trial and when a defendant is found to be the prevailing party and a contract or statute permits the recovery of costs and fees to the prevailing party.
If a party appeals within the permissible time period after judgment is entered, then litigation can go on for another year(s) without resolution.
Statute of LimitationsNotice Considerations
A must do in conducting a careful cost/benefit analysis in a prospective lawsuit is determining if the potential defendants have insurance or are otherwise solvent, i.e., can pay the potential judgment. Due consideration must be given to the relevant statute of limitations, i.e., the time period that an aggrieved person must file a complaint in state or federal court. Claims based on federal statute have their own limitations period which are separate from limitations period provided by each state.
Jurisdictions have differing statute of limitations against government agencies, public entities, medical professionals and lawsuits initiated by minors. Lawsuits relating to these different categories of persons require complicated special notices and/or court order(s) prior to filing a civil complaint.
Consult with an attorney in your jurisdiction to determine the applicable statute of limitations and special notices pertinent to your circumstances.