What Events Should I Expect in a Lawsuit?
The parts of a lawsuit become common to a lawyer, and it is easy for a lawyer to think a client will understand what is going on. But for a non-lawyer, it is easy to get lost in the legal language, not understand what is happening, and not know what to expect. This article provides a basic framework as to common parts of a lawsuit and what might be expected in each part.
Prelitigation
Before a lawsuit is filed, there is generally a dispute between people. It might be a dispute over who owns land, who gets clients when a business breaks up, or something else. There may be anger, ill will, and feelings of betrayal. However, there is often not a better time to settle a dispute without great expense and intrusion to privacy than before a lawsuit is started, so an early mediation may be beneficial to try and settle the matter so that it never becomes a lawsuit. This can be difficult, since there has not yet been an opportunity to seek out evidence, but it still may be worth a try. Settlement may occur at any stage of a lawsuit, often after some investigations have occurred, and some courts require some form of “alternative dispute resolution” or “ADR.”
Determining the Grounds for a Lawsuit
If a dispute is not resolved, then one or the other side may file a lawsuit. The person filing the lawsuit must make some decisions. The basis of the lawsuit needs to be decided. The basis is called a “claim” or “cause of action.” Each cause of action will generally have “elements.” For example, the elements in a negligence claim require a plaintiff to show: (1) a duty from the defendant to the plaintiff, (2) that the defendant breached that duty (i.e., failed to perform what was required), (3) that the plaintiff was injured, and (4) that the injury was caused by breach. There are many causes of action, and there must be facts to support them. When the causes of action are decided, there may be a choice as to the “forum” (e.g., will the case be filed in state or federal court, and, if state, what county). Once these things are all decided, the plaintiff will write up a “Complaint,” that states where a lawsuit is filed, who is being sued, and the claims that are being made. Once the Complaint is filed or served on the defendant(s), the lawsuit has been commenced.
The Pleading Stage
“Pleadings” are the written statement of the claims and defenses of the parties, with the intended purpose being to provide notice of what is to be expected at trial. The Complaint is the first pleading filed in a lawsuit. The “parties” to the lawsuit are generally the plaintiff, who filed the lawsuit, and the defendant, who is defending against the plaintiff’s claims. After the plaintiff serves the Complaint on the defendant, the defendant may file an Answer to the Complaint and, in addition, may also file Affirmative Defenses, Counterclaims, Cross Claims, or Third-Party Claims. Affirmative Defenses are legally recognized defenses intended to defeat the plaintiff’s claims. So, for example, one affirmative defense might be statute of limitations, which you would assert to say that the plaintiff waited too long to bring the claim and now it is too late. Counterclaims, Cross Claims, or Third-Party Claims are claims brought by the defendant against: (1) the plaintiff, (2) another defendant, or (3) someone that is not a party to the lawsuit yet, but who may be responsible for the claimed damage.
It is also in the pleading stage that the first motions to dismiss the lawsuit as a matter of law may be brought. You may hear them called “dispositive motions,” because they may be dispositive of the case, or “CR 12(b)(6)” motions, named after the rule number of the Civil Rule that permits such motion. Unless there is a simple legal defense that is not reliant on questioned facts, motions to dismiss may be very difficult to win in state court, because the standard to win is so high (i.e., to get dismissal in state court there must be no set of hypothetical facts on which the plaintiff can prevail). Still, it is possible to win such motions, especially in federal court, where the standard requires a plaintiff to sufficiently allege plausible facts.
Discovery
The next stage in litigation is the discovery stage. In the discovery stage, the parties try to discover facts that help their case or hurt their opponent’s case. Discovery is very broad and is often intrusive and time consuming. Some primary tools of discovery include:
- Requests for Admission – Requests an answering party to admit facts.
- Interrogatories – Request an answering party to answer questions.
- Requests for Production – Requests an answering party to produce documents.
- Request for Statement of Damages – Requests an answering party to provide a list of claimed damages, usually in a personal injury case.
- Nonparty discovery – Stipulations and/or subpoenas to obtain documents from nonparties, such as the plaintiff’s medical records or employment records.
- Depositions – A party or nonparty is called by a party to testify under oath before a court reporter.
- Interviews – Except for a few exceptions, a party may interview witnesses to discover facts without the other party present.
- Witness Disclosures – Many, though not all, jurisdictions require parties to file a list of witnesses and what it is believed that they may know.
- Experts – Around this time, and depending on the case, parties may retain expert witnesses, which may also be deposed during this phase of the litigation.
Motions Practice
Unless there are grounds to bring them earlier, around the close of discovery, parties will often bring “summary judgment motions.” Summary judgment motions are another kind of motion seeking judgment as a matter of law. Generally, a lawsuit is made up of two things, the law and the facts. The judge decides the law and the jury, or other trier of fact, decides the facts. In a trial, the judge will give the jury instructions, which state the law, and will ask the jury to decide the facts regarding liability. In a summary judgment motion, the parties set out their version of the facts, and the judge, looking at the facts in a light most favorable to the non-moving party, considers whether the issues can be decided as a matter of law. A defendant showing that the plaintiff cannot meet any element of a cause of action is generally entitled to dismissal of the plaintiffs claim and, if this is so for all claims, the lawsuit may be dismissed without a trial. Where a plaintiff brings a summary judgment motion, it is usually to decide the liability of a defendant, and the amount of damages then would still be an issue at trial.
Trial Preparation
If mediation fails and the parties are unable to resolve their differences, then trial may be inevitable. Much preparation is generally required to prepare for trial. Trial preparation will often include some or all the following actions.
- Motions in limine – These motions ask the court to exclude certain evidence from trial or provide other pretrial rulings that may affect the course of trial.
- Jury instruction – The judge will provide the jury with a statement of what the law is, and the jury must follow it in deciding whether a defendant is liable. Jury instructions are drafted initially by the lawyers and may be determinative of the lawsuit.
- Trial brief – Each side prepares a trial brief, which explains to the court how that side views the court and suggests to the judge how they should decide.
- ER 904 – Evidence Rule (ER) number 904 provides that a party may submit documents that may be an exhibit at trial. The other side has 14 days to either agree to the agreement or challenge the document with evidentiary objections.
- Identify witnesses – Each party prepare a list of the witnesses they intend to offer at trial.
- Prepare witnesses – Prior to trial the lawyer will generally prepare the witnesses by going through their planned testimony and indicating some ways in how they may respond of the opposing side tries to discredit them.
- Identify exhibits – Each party must prepare a list of documents that they intend to make exhibits at trial and disclose them prior to trial to the court and other side.
- Prepare exhibits – Each side must generally provide hard copies of exhibits in a notebook for the judge, the witness, the opposing side, and themselves. However, some courts have gone electronic.
- Subpoena witnesses – If there is a witness that is desired by a party, and the witness has no desire to be examined, a party may want to subpoena the witness in advance of trial. If such witness is not subpoenaed, they do not have to show up, even if you tell them you want to examine them.
- Prepare witness notebooks – Lawyers and/or paralegals will often create notebooks for each witness. The notebook will include the questions that the lawyer wants to ask the witness at trial. The notebook may also contain selections from the witnesses deposition, so they can be pinned down to the story they provided at deposition under oath. The notebook may also include exhibits that the witness may be asked about, or motions that may limit the witness’ testimony.
- Prepare trial notebook – Lawyers also often use a trial notebook, which contains many of the primary documents in a case. Trial notebooks may include such things as the pleadings for each party, orders previously entered by the court, copies of interrogatory answers to pin down the witness, each side’s trial brief, opening arguments, questions for jury selection, and witness and exhibit lists.
Trial
The trial phase may be complicated, and this brief statement does not state everything that might happen at a trial. However, a jury trial often follows the following format.
- Argue preliminary motions and motions in limine – Trials often start by the judge and lawyers meeting and arguing preliminary motions, which help shape how the trial will proceed.
- Voir dire – Voir dire is a fancy word for jury selection. During voir dire, the lawyers get a chance to ask the potential jury questions and try to exclude jurors that they believe will not be favorable and pick good jurors.
- Opening statements – Once a jury is picked, the lawyers generally make opening statements to the jury, telling the jury what they think the case is about, and stating to the jury what they believe the evidence will show.
- Plaintiff’s examination and cross examination – Next the witnesses are questioned. First the plaintiff calls all of his or her witnesses and the defendant has an opportunity to cross-examine these witnesses.
- Half time motions – At the end of the plaintiff’s case, the defendant will often bring a “half time motion,” which is another type of motion for judgement as a matter of law. The defendant will argue that the evidence presented by plaintiff in plaintiff’s case is insufficient to support plaintiff’s claim or claims. If granted, trial is over. If not granted, the trial proceeds.
- Defense examination – The defendant then has an opportunity to put on the defense’s case. The defense examines witnesses, and the plaintiff has an opportunity to cross-examine their witnesses. Sometimes, but not always, the plaintiff may then put on a rebuttal.
- Closing arguments – After the defense rests, and if there are no rebuttal witnesses, the attorneys then present their closing arguments. Each lawyer will present their theory of the case, discuss the evidence that was admitted, and how they think the jury should decide.
- Reading of jury instructions – By this time, the judge has chosen the jury instruction that will be used in the case and will read all the instructions to the jury. The jury must follow the instructions in deciding whether the defendant is liable.
- Deliberations – The jury is then sent back to a room with the jury instructions and “deliberates,” which means they look at the admitted evidence, discuss the jury instructions, and decide how to answer the liability questions in the instructions. The jury elects their own foreperson who will run the process and pass the decision back to the bailiff when made.
- Reading of decision – When the jury has decided, they are called back to the courtroom, and the foreperson of the jury reads the verdict.
- Jury excused and conclusion – Once the verdict has been handed down, the jury is excused, and the trial is concluded.
After conclusion of the case, the losing party may then file post-trial motions asking the judge to change the decision and the losing party may then also appeal the decision. However, these are topics for another day. Once a decision is rendered, the jury is excused, and the trial is concluded. Hopefully, this explanation will provide the layperson with a better understanding as to what will happen once a lawsuit is commenced.
To learn more about Washington’s Lawsuit Process, please contact Beresford Booth at info@beresfordlaw.com or by phone at (425) 776-4100.