Are you interested in learning more about litigation? Whether you have been in a courtroom yourself or watched a show like Law & Order, there’s a chance you’ve been exposed to litigation in one form or another.
There are more than 40 million lawsuits filed each year in the United States. Although there are millions of cases annually, you may not know what a litigation attorney does and how a lawsuit works.
Read on to all about filing a lawsuit and how a case progresses up to trial!
The Attorney’s Role
The parties in a lawsuit are often represented by a litigation lawyer. The person or company that files a complaint is the plaintiff, while the side on the receiving end of the lawsuit is called the defendant.
Typically, when a party is aggrieved and has suffered damages as the result of the actions of another, they will hire a lawyer to represent them. A lawyer must be licensed in the place where the lawsuit is filed.
Each jurisdiction has rules for how someone becomes a licensed attorney. This usually includes earning a college degree, graduating from law school, and passing that state’s bar exam. A litigation attorney is primarily different from a transactional lawyer in that a litigator handles lawsuits and goes to court.
How a Lawsuit Begins
A lawsuit begins when the plaintiff files a complaint with the court where the damages took place. Other options for filing a lawsuit are usually where the cause of action arose or where the defendant resides. If the defendant is a business, it can often be sued where the principal place of business for the company is located.
The complaint in a lawsuit is called a pleading and is the legal document where the plaintiff makes factual allegations and raises causes of actions. For example, in a breach of contract cause of action, a plaintiff will allege that a contract existed between the parties, the defendant violated a term in the contract, and this caused the plaintiff to suffer damages.
When the complaint is filed, the Clerk in that jurisdiction will issue a summons. Once the summons is created, the plaintiff must serve a copy of the summons and the complaint on the defendant. In a place like Florida, a defendant has 20 days from the date of service to file a response.
Filing a Response to a Complaint
Once a defendant is served with a complaint, they have a handful of different options. They could choose to file a motion to dismiss on one or many legal grounds.
For example, a defendant may believe the court does not have jurisdiction over the lawsuit. They could also allege that the plaintiff has failed to make the factual allegations to establish a cause of action.
Instead of filing a motion to dismiss, the defendant may decide to file an answer and affirmative defenses. In this document, the defendant answers each paragraph of the allegations and then asserts their defenses against the allegations.
There are times where a defendant has a cause of action or many different causes of action against the plaintiff. In those cases, the defendant will file an answer, affirmative defenses, and a counterclaim.
When a defendant files a counterclaim with the court, the plaintiff to the original action generally has 10 days to file a response in Florida.
It is important to remember that each jurisdiction has different laws and deadlines for litigation procedures. Before you begin a lawsuit, research those timelines or click here to learn how to get a litigation lawyer to file your case.
The Discovery Process
When most people ask, ‘What is litigation?’ the first thing that comes to mind is being in court. Although some events during litigation take place in court, a lot of things happen outside of it.
Discovery is an important part of any litigation matter. This is the formal process by which each party learns about the facts and circumstances further in their respective case.
For example, each side can serve written questions on the other that are called interrogatories. These must typically be answered by the other party within 30 days of service. The parties will often make requests for documents through a request for production. These must also be answered within 30 days.
Once paper discovery is complete, the parties will usually set witness depositions. During a deposition, a witness answers questions under oath. Each attorney can ask the witness about anything relevant to the issues in the lawsuit.
Civil cases are different from criminal cases in many ways. In discovery, there is one very noteworthy difference. The defendant in a civil case does not have a constitutional right to remain silent. This means the defendant cannot assert a 5th Amendment right to refuse to answer. The exception is when answering would subject him or her to criminal liability.
The discovery process is a great way for each side to learn the strengths and weaknesses of their respective case.
Going to Trial
At the heart of every case is a settlement or determination of the result through a trial. Depending on the rules in your jurisdiction, the parties may have to mediate the case before a trial is set.
At mediation, the parties and their counsel meet with a neutral third party as a mediator. Unlike a trial, the parties are in complete control over whether their case resolves.
If the parties impasse at mediation and cannot settle their case, the next step is to go to trial. At a trial, there may be a jury listening to the evidence or a judge. When a judge is the only one receiving evidence, this is a bench trial.
At the end of presenting witnesses and evidence from both sides, a judge or jury will reach a verdict. When there is a verdict, the parties learn who prevails in a case. They will also learn any resulting damages one party must pay to another.
Understanding Litigation Laws and Procedures
Understanding general litigation laws and procedures will help you in the event you are involved in a lawsuit in the future. Instead of going into the process without any knowledge of how it works, you can speak to a lawyer with a better feel for how things go in a case.
Are you trying to learn more about a company before you file a lawsuit against it? Check out our blog post on how to find lawsuits against a company online!