What is Litigation?

The language of law can seem foreign for those that find themselves involved in a legal dispute. Johnson Law specializes in litigation: bringing our clients’ claims into the legal system for resolution. But what does that really mean? Below you will find an overview of what can be expected during litigation.

Litigation is the legal process that occurs when people or companies make claims or complaints against other people or companies in court or other forums, such as arbitration. Litigation often occurs when the parties disagree as to the scope, severity, and appropriate outcome of their dispute, which requires a neutral third party (like judges, juries, or arbitrators) to resolve the dispute for them. There are four basic phases to a lawsuit: procedural, discovery, trial, and post-judgment.[1]

1^st Phase: Procedural

The first phase is procedural, meaning the attorneys and clients work together to put the case together and present their dispute to the court. This phase is where litigation is started by filing a complaint in the court. A complaint is a legal document that outlines the facts and legal claims of the dispute. The party bringing the claims is called the Plaintiff. Once the complaint is filed, the Plaintiff must serve their complaint on the other party. The other party is called the Defendant and service of the complaint is required to put the Defendant on notice the legal process has begun. The Defendant then answers the complaint or files motions to get the case dismissed.

Assuming the case is not dismissed and the Defendant files an answer, the parties work with the court to determine procedural aspects of the case including setting various case deadlines and picking a date for trial. During this phase, the Plaintiff and Defendant each collect and exchange information about the dispute. This process is called disclosure. Disclosures are the exchange of information between the parties, including all relevant documents, pictures, texts, emails, contracts, agreements, etc. as well as identifying people who may know something about the dispute. The parties have an ongoing obligation to disclose relevant information throughout the life of the case.

2^nd Phase: Discovery

The second phase is discovery. Once the parties have disclosed the information they have about the dispute, each side gets to investigate the other party’s claims and/or defenses through formal discovery.

Most commonly, the tools of discovery are depositions, written discovery, site inspections, and expert disclosures. Depositions are questions asked by the other party during a face-to-face meeting that is written down (transcribed). Written discovery means questions asked in written form. There are three main components of written discovery: interrogatories (written questions about the case); requests for production of documents or things (asking one party to hand over or disclose additional documents or things that have not yet been shared); and requests for admissions (asking one party to admit a specific fact).

For construction cases, site inspections are an important part of the process because it allows the parties to view and experience the construction that is in dispute. Site inspections are also important for the parties’ experts in forming their opinions as to what went wrong and how much it will cost to fix it. Expert disclosures are where each party’s expert shares his/her opinions with the other party on what caused and who is at fault in the dispute.

3^rd Phase: Trial

The third phase of litigation is the trial phase. This phase is by far the most time consuming and costly phase of the litigation. The trial phase is where the parties take all the facts of the dispute they have obtained through disclosures and discovery and present the case to the decision maker – the judge or jury. During this phase, the attorneys have pre-trial meetings with the court to determine specific legal issues of the case; exchange their evidence and witness lists; and prepare jury instructions and witness examinations. This phase is time consuming for the parties too because the Plaintiffs and Defendants must be present for each day of the trial. The attorneys turn all of their focus and attention to presenting the case and advocating on behalf of their respective clients. The end of this phase is a decision or judgment, by the judge or jury, as to the outcome of the dispute.

4^th Phase: Post-Judgment

The final phase is the aftermath of the court’s or jury’s decision of the dispute. If one party is displeased with the outcome of the case, they may appeal the judgment. An appeal is where one party asks a higher court to reconsider the judgment based on some alleged error. Appeals generally take a long time to resolve before the parties receive a full and final resolution of their dispute. Other post-judgment issues include a request by the prevailing party for the court to award them their litigation costs. Litigation costs include items like expert fees, filing fees, copying costs, witness fees, among others. If a party is entitled to recover their attorney fees, the court determines the amount of attorney fees during the post-judgment phase. If the Defendant or their insurer does not pay a judgment, often times the collection process begins until the amount is paid.

Conclusion

This basic overview outlines what can be expected during litigation. However, each dispute, each party, and each case are unique and not all cases go through the process in the same manner. The life of a case can last anywhere between a few months to a couple of years before resolution occurs. That is why Johnson Law strongly believes each client should be informed of what they can expect if they find themselves in litigation. At Johnson Law, we pride ourselves on our candor with clients and efficiency in navigating the litigation process to achieve our clients’ goals.

[1] Since most cases involve court instead of arbitration, this blog post will focus on court litigation instead of arbitration litigation, although they are very similar.