Most first-time litigants are unfamiliar with the process by which a lawsuit moves from filing to resolution. While every lawsuit is unique and different courts have different rules governing litigation procedure, most lawsuits in most courts follow a similar path from initial complaint to final judgment. Understanding the different stages of a lawsuit can help prepare first-time litigants for the unfamiliar process ahead.
Generally, lawsuits are initiated by the plaintiff filing a “Complaint” with the court, which is a document that describes who the parties are, what happened, and what the plaintiff is asking the court to do. After filing, the Complaint and other documents must be formally served on all named defendants. After being served, the defendants must file a responsive document called an “Answer,” which admits or denies each of the allegations in the Complaint. Along with filing an Answer, a defendant may also file counterclaims (claims against the plaintiff), cross-claims (claims against other defendants), and third-party claims (claims against other people and entities who are not already parties to the lawsuit).
In some cases, instead of filing an Answer, a defendant will file a Motion to Dismiss, which asks the court to dismiss the lawsuit because of a legal defect in the Complaint. The parties may also file other types of motions during the initial pleadings phase, such as motions for temporary restraining orders, injunctions, attachments of assets such as real estate, and motions to transfer the case to a different court. Depending upon the complexity of the case and court’s schedule, the initial pleadings stage can take anywhere from a couple of months to a year or more.
In the “discovery” stage, the parties each have an opportunity to investigate their claims and gather evidence for use at trial. Different courts have different rules governing discovery, and there are a number of discovery methods available to litigants. In most cases, discovery will involve requesting copies of documents, requesting written answers to written questions (called “interrogatories”), and taking depositions of parties and witnesses. In cases that involve expert testimony, the initial discovery stage (often called “fact discovery”) is followed by “expert discovery,” in which the parties designate expert witnesses, exchange expert reports, and, in some cases, take depositions of designated experts.
During the discovery stage, parties may bring “discovery motions,” such as motions for a protective orders that limit discovery, and motions to compel a party or non-party witness to respond to discovery. The discovery stage will usually take anywhere from three to nine months to complete, although in complex cases, discovery may last a year or longer.
Part 2 of this two-part series discusses the pre-trial and trial stages of litigation.