Written by attorney Jeanne Bynum Hipes

The Litigation Process

Pretty much all litigation follows a certain general path, with deviations occurring due to myriad factors that are often unpredictable. But generally:

  1. Complaint. First a Complaint is filed. This states, sometimes very simply and vaguely, what the Defendant allegedly did wrong and what the Plaintiff wants as a result of the wrong suffered (e.g., money damages, an injunction making the Defendant stop what s/he is doing, attorney fees and costs, etc.). The filing of the Complaint starts the litigation.

  2. Answer. Then an Answer must be filed admitting or denying the allegations in the Complaint. Unless the parties agree otherwise or the judge orders a longer period, that Answer must be filed 30 days after the Complaint has been "served" (hand-delivered) if you are in state court; with 20 days if you are in Federal court.

  3. Discovery. Then the parties engage in what is called "discovery." This is where each party and counsel gets to find out facts and information from the other party. There are several legally-provided mechanisms used to get information:

a) Interrogatories: This is when one party gets to send the other party written questions about the facts, witnesses and documents that pertain to the case. The party receiving interrogatories has to provide written answers, signed and verified as true under oath within 30 days of hand-delivery of the interrogatories (or, in Georgia state courts, 33 days from the date of mailing.) In both state court and Federal court, the number of interrogatories you can serve is limited. Something called "initial disclosures," however, are required to be filed and exchanged between the parties early in a Federal case. These initial disclosures require you to provide a lot of information about your case up front.

b) Requests for Production of Documents and/or Inspection of Things. This is a written request from one party (through counsel) to the other asking that party to provide or provide access to documents or things described in the Request. For example, a Defendant might request of Plaintiff "all documents that supports your contention that the Defendant engaged in the conduct described in paragraph 10 of the complaint," or "All bank statements showing payments made to Defendant from 1999 to present." There is generally no limit on the number of Requests for Production that can be served on a party, unless it appears the other side is serving such requests to abuse or harass the other party.

c) Depositions. A deposition is where a party or a witness must submit to questioning by opposing counsel . The party must give his or her answers under oath, and every word spoken by counsel or the person answering the question will be recorded by a court reporter, who is specially trained to do this. The court reporter will then transcribe all that was said during the deposition into a written document called a deposition transcript. All or portions of this transcript may be used in court as testimony to establish facts or statements provided or made by the party or witness giving the deposition. The period of discovery initially lasts six months in state court and four months in Federal Court, although it can sometimes be extended by the judge or if the parties agree.

4. Motions.

a) Discovery Motions. Throughout the discovery period, disputes may arise over what has to be produced, and either party may file a "motion" with the court asking for help with discovery process. A motion is merely a written request to the court which asks the judge to make a ruling with respect to a particular issue. During the discovery period, it is not uncommon for parties to file one or more "Motions to Compel Discovery" (which ask the court for a ruling compelling the other side or a witness to produce documents or things that s/he or it is refusing to produce) or "Motions for Protective Orders" (which ask the Court to rule that the party filing the motion does not have to produce a document or thing sought through discovery by the other side).

b) Motions for Summary Judgment. This is a motion filed by either or both parties usually after discovery has ended which asks the court to make a legal ruling based on the undisputed facts. Sometimes in a case, the critical facts are not disputed, and a judge can resolve the entire case with a legal ruling—thus making a trial of the case (and the expense and time associated with a trial) unnecessary. Such motions also serve to streamline the case and educate the judge with respect to the law that applies to the case.

c) Other Motions. There are many other motions that can be made during the litigation process. These merely ask the court to rule on issues that come up during the litigation. One type of motion that is often filed before trial is a "Motion in Limine." This is a written request to the judge asking him or her to disallow the other side from presenting evidence at trial that ought not be presented for one reason or other, e.g., the evidence is not relevant to the issues at hand and would unfairly cause the jury to think negatively about one of the parties.

5. Trial.

A trial can be either a Jury Trial or a "Bench" Trial. A Jury Trial merely means a presentation of the evidence by both parties in an ordered way to a group of either 6 or 12 jurors (depending on what court you are in), who will decide who is right in the litigation, whether any money ought to be paid to a party, and if so how much. A Bench Trial is the same process except that, instead of a group of jurors making the decisions, a judge will alone make those decisions. A judge will participate in both a Jury Trial and a Bench Trial, however.

6. The Verdict.

The verdict is whatever decision the jury makes with respect to the evidence presented at trial. Obviously, it is the most important part of the case. After the verdict is made in a jury trial, the judge then enters "Judgment on the Verdict," which has the effect of making the verdict the order and ruling of the court. If an unfavorable judgment is entered, the losing party may file certain motions that ask the judge to overturn the decision made by the jury (e.g., Motion for Judgment Notwithstanding the Verdict).

7. Appeal.

A party who has lost a jury trial can usually file an appeal. Appeals usually must be filed within 30 days of the entered jury verdict; sometimes there are shorter deadlines. Appeals are resolved by a different court—a court of appeals. Resolution of an appeal could take several months or more.

8. Mediation or Arbitration.

At some point during the litigation process, the court may require or the parties may desire mediation or aribitration. Mediation and arbitration are litigation alternatives. They afford a process to resolve a dispute. They can take place before or instead of litigation, during litigation, or even conceivably after litigation to avoid an appeal. Mediation is where the parties discuss their evidence and contentions with a neutral third party called a mediator, who attempts to help the parties find common ground and resolution of their issues. A mediator has no power or authority to make any rulings; s/he merely helps the parties come, if possible, to an agreement with regard to the issues in the litigation.

Arbitration is different than mediation. Sometimes the parties have in connection with their business relationship signed an arbitration agreement which requires them to submit disputes to arbitration. Even if not required to do so by a pre-existing agreement, the parties may at any time decide to submit their dispute to binding arbitration. This means that they are agreeing to have a neutral decision maker or a panel of decision makers decide and rule on their issues. The arbitration process is somewhat like the litigation process in that usually discovery of some kind is allowed, and there is something like an informal trial that happens at the end—the parties present evidence in the form of documents, witnesses, and things to the arbitrator (or arbitration panel), who then makes a decision just like a judge would. The difference in arbitration, however, is that once the arbitrator has made a decision, for better or worse, that is the end of the matter. Appeals from arbitration may occur, but are rarely successful.

9. Settlement.

At any point during the litigation, mediation, or arbitration process, settlement of the issues can occur. If the parties reach an agreement, usually the suit will be dismissed and a settlement agreement will be executed which details the terms on which the parties have agreed. Sometimes a "Consent Judgment" is filed with the court to give the terms agreed upon the power and effect of a court order. A case is never settled by this law firm without the client's express authorization.

In practice, the majority of cases settle, sooner or later. It is not uncommon, however, for cases to settle on the eve of trial—after lots of money, time and effort has been poured into the litigation process and getting ready for trial. Obviously, it is preferable to settle, if possible, sooner rather than later. Even though most cases do settle sooner or later, in entering the litigation process, you should plan and be ready to go all the way through trial.

The above is just a general outline and should not be construed as legal advice. Please also see our sister article, What to Expect In Litigation, which is also provided by Jeanne Bynum Hipes of Hipes Law LLC* on Your case may involve other or different components than those listed here. Counsel at Hipes Law LLC are well-trained in litigation and would be happy to discuss with you what you might expect to occur in your particular circumstances. Hipes Law LLC’s Managing Trial Lawyer, Jeanne Bynum Hipes, Esq. can be reached directly on 678-867-7006 or via email at [email protected]

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