By Joshua Baumann
So, you have decided to file a lawsuit against someone (or an entity), or someone has filed a lawsuit against you.
First, you must be aware that this process can be lengthy, mentally and physically draining, and very costly. Somewhere between 30,000 to 50,000 civil lawsuits are filed in Nebraska each year! It is always advised to go through this legal process with an attorney especially one who is knowledgeable in the subject matter of the lawsuit. While you have the right to file a case without an attorney’s help, (this is known as “self representation” or “proceeding pro se”), an attorney can make sure you file in the right court, help you follow the court rules and mitigate stress and cost.
What exactly does the litigation process look like? The general stages are as follows:
• Initial Pleadings
• Written Discovery
• Settlement, or Trial & Judgment
The first stage is Initial Pleadings:
This includes the complaint or petition filed by the plaintiff and an answer or additional claims filed by the defense
Many strategic moves can be done at this time. As a plaintiff you want to have your ducks in a row as much as possible so your complaint or petition contains all of the pertinent information. As a defendant, you want to analyze as much information that you possess to properly address the complaint or petition when filing your answer. Your answer may include affirmative defenses and even additional claims such as counterclaims or crossclaims. It
may seem like this portion of the process is boilerplate or simply a less meaningful part, however this beginning stage steers the direction of the entire case. This portion cannot be overlooked or done in a lackadaisical manner.
Next, we move into Written Discovery:
This portion encompasses an attempt to obtain as much information from the opposing party (or parties) to give you a clearer picture of the issue(s). This can be done through interrogatories, requests for production of documents, requests for admissions and subpoenas. This stage can be daunting and lengthy depending on the complexity of the lawsuit. It is crucial to understand what information or materials are discoverable and which ones are non-discoverable. While you want to obtain all of the necessary information pertaining to your case, you do not want to hand over non-discoverable information to the opposing party.
An attorney can help you navigate this critical discovery phase.
Once you have obtained the majority of the materials pertaining to your lawsuit it is time to move on to Depositions:
A deposition is a sworn, out-of-court testimony given by a witness. These can include depositions of fact witnesses, the plaintiff, defendant, and experts. Depositions are similar to courtroom testimony; however, no judge is present. It is simply the attorneys, the deponent, a court reporter, and potentially one, if not all, of the parties.
Deposition testimony is under oath, like courtroom testimony, and anything a deponent says can be used later at trial against them. This portion is important for locking in testimony for certain individuals and obtaining testimony from those who may not be available during trial. It is important to have an attorney during this stage to understand what you should or should not say, what should or should not be inquired, and to reserve objections to potentially be used later at trial.
The final stage is Settlement – or Trial and Judgment.
More often than not lawsuits will have been settled prior to reaching trial; however, should the parties not agree on settlement, trial occurs.
Trial generally is the most stressful and costly portion of the entire process. It is not as glamorous as modern media makes it out to be and can last weeks, if not longer, depending on the complexity of the case. There are many rules that govern a trial, such as the rules of evidence, civil procedure, and local court rules.
Understanding all of these rules is quite the task and a knowledgeable attorney is a necessity at this stage. During the trial, the plaintiff’s and defendant’s attorneys will present their cases to a judge and jury, who will preside over the court and hand down the ruling.
This is only a brief overview of the civil litigation process. In complex civil cases, having an attorney who understands the issue(s), is effective and professional is crucial. These attributes mitigate clients’ stress and cost. Should you find yourself in a situation where a lawsuit is on the horizon or pending, the attorneys at Abrahams Kaslow & Cassman LLP can help you navigate through this complex and costly process in the most efficient and professional manner. Contact [email protected] for more information.