A Step-by-Step View of the Litigation Process for a Typical Lawsuit
Clients facing litigation frequently ask us what will happen and how long the process will take. Here is a brief overview of the litigation process for a typical lawsuit.
Litigation begins before the filing of a Complaint with investigation and research on both the facts and the law. The best lawsuit is one that is filed with careful preparation in advance. Once that process is complete, the formal lawsuit begins with the filing of a Complaint. This may be in state or federal court depending upon the citizenship of the parties and whether or not questions of federal law are involved.
After Filing a Complaint
Once a Complaint is filed and served, the defendant typically has between 21 and 30 days, depending upon the Court, in which to file an answer. At that point, the formal “discovery” process begins. This can take anywhere from six months to a year or more. It involves the exchange of written questions, requests for production of documents relevant to the case and the taking of deposition testimony of witnesses and those who may be called upon to give expert testimony.
Sometimes a lawsuit will be cut short by what is called a motion for summary judgment (called summary disposition in the Michigan courts). This can occur where a party can convince the Court that a lawsuit (or the defense to the lawsuit) has absolutely no chance of succeeding for legal or factual reasons, and should not be permitted to proceed all the way to trial.
If the lawsuit is not cut short by a motion like this, it will go through one or more settlement processes, usually required by the Court as a pre-condition to going to trial. In Michigan courts, the most common process is called “Case Evaluation”. Every case involving a lawsuit over money in the State of Michigan goes to case evaluation. In this process, three lawyers appointed by the Court evaluate written and oral submissions by the parties’ attorneys and make a recommendation for settlement. The recommendation is not binding, but it has teeth because a party that rejects the recommendation runs the risk of having to pay the other side’s attorney’s fees and expenses, if the outcome at trial is not ten (10) percent better than the recommendation that was rejected.
Case evaluation is often useful in resolving cases. When it is not, a court may order “facilitation”. In this process, a single person, often a retired judge or a highly experienced litigation attorney, will work with the parties in an effort to reach a mutually acceptable settlement. The facilitator cannot order a settlement and there are usually no penalties for rejecting the facilitator’s recommendations. But a good facilitator working with parties who desire to seek a resolution can very often bring about a resolution that the parties could not have achieved on their own. Facilitators are paid by the parties, but the cost is a fraction of what it takes to go to trial.
Going to Trial
Where all else fails trial is the only solution. Depending on the court (and it varies), it can take anywhere from a year to two-and-a-half years from the time a case is started to the time that it actually goes to trial. Trials may be to a judge alone (referred to as a bench trial) or may be to a jury. In cases involving money damages either side may demand a jury and once that happens, the other side has no choice but to accept that it will be a jury trial.
In large cases where the amount at stake justifies the expense, one or both sides may test their cases before going to a jury trial through the use of focus groups and even mock trials. Both are intended to show the lawyers and their clients how people typical of the jury that may be impaneled will react to the facts and arguments that will be made in the case. It is not uncommon for focus groups and mock trials to reveal strengths and weaknesses in the case that were unappreciated by the lawyers and parties themselves. The results obtained from this process may lead a party to believe that the case should be settled or tried in a way different from what had been originally planned.
Once a case is tried and a judgment is entered for one party or the other, the case is subject to appeal. Typically, a party can appeal a decision once by right (meaning that the appellate court must hear the appeal and render a decision one way or the other). After that appeals are usually by permission of the appellate court (often referred to as “leave granted”). Typically, the Supreme Court of any state, as well as the U.S. Supreme Court, will only hear appeals by leave granted.
A settlement may occur at any point, from the time before a suit is filed to the day before a final appellate decision is made. Litigation is always uncertain, and settlement is a way of cutting off unacceptable risk.