Understanding Civil Litigation

Civil litigation is war; the courtroom is a battlefield upon which such issues as rights, money, damages and the like are decided. Prior to the final battle of a courtroom trial, the parties engaged in civil litigation engage in months of pleading wars, discovery and discovery motions and mounting legal fees. Is it all worth it? The answer is, sometimes. However, before you engage in this process, you should have a clear understanding of it.

The rules of engagement in civil litigation are outlined in several codices within each jurisdiction. Each state and county has rules of procedure and court rules that must be followed. It is beyond the scope of this article to list them all, but they should be checked, understood and checked again by anyone engaging in civil litigation.

The initial pleadings, the plaintiff’s complaint and the defendant’s responsive pleading, usually an answer, govern all of the causes of action and defenses that will be argued within a case. In the complaint, the plaintiff will make allegations regarding each required element for each cause of action alleged. The complaint will allege that a defendant or defendants are legally responsible under the law for some type of damage to the plaintiff and that the defendant must recompense the plaintiff for the damages caused.

Let’s take an example.  Let’s look at a typical automobile rear-end collision case. Plaintiff Smith is rear-ended by Defendant Gorden while Smith is stopped at a stop light. Defendant Gorden owed a legal duty to all other drivers on the road to drive with reasonable care. Gorden breached or failed that duty when he hit Smith. Smith suffered damages consisting of physical damage to his vehicle and some medical bills which were proximately caused by Gorden’s negligence. All of these allegations, and many more, may be contained in Smith’s complaint against Gorden.

Once Smith files his complaint and serves Gorden with it, Gorden has a specified time period, usually 30 days, to file a responsive pleading. This responsive pleading is usually made in the form of an answer to the complaint, but it may be another type of pleading that asks the court to find in Gorden’s favor and to end the litigation at this juncture.

Once an answer to the complaint has been filed and served, the second phase of civil litigation begins. Discovery is the name given a number of tools that can be used by both plaintiffs and defendants to “discover” what evidence the opposing side has garnered. Discovery consists of a number of tools, including: Demand for Production of Documents (or other things), Deposition, Written Interrogatories, and Requests for Admittance of Facts/Genuineness of Documents. All of these tools have specific requirements for their use. 

After both sides have determined the strengths and weaknesses of the evidence on both sides, it is time to look at resolution of the case. This can happen in a number of ways. Settlement can be reached when the parties are not too far apart regarding their viewpoints on liability and damages. Arbitration is a less formal proceeding than is a trial, and can be used to bring a case to closure. In arbitration, a person is brought in by both sides to determine who is legally liable and the amount of damages that should be awarded, if any. This setting is shorter and less formal than a trial, and therefore less costly. Mediation is a type of settlement. In mediation, a person is brought in by both sides to help both sides reach a settlement. The mediator is specially trained and will work to move parties toward settlement by pointing out the relative strengths and weaknesses of each side.

Finally, a trial is a formal proceeding which takes place either before a judge or a jury. There are formal rules of evidence which govern and a trial transcript is made available in case one side should choose to appeal the outcome.

As a rule of thumb, the longer a case is in litigation, the greater the attorney’s fees at issue. Once a matter reaches a period starting 30 days before trial and moving through trial, the costs of litigation rise astronomically. It is no small matter to prepare for a trial and to make a matter through to judgment. Attorneys typically work 60-80 hours a week during this time period, often billing at upwards of $300 per hour. Therefore, the earlier a matter is resolved the less costly it is.

I hope that this has provided you with a thumbnail sketch of the process of civil litigation. This is not meant to substitute in any way for legal advice. Therefore, if you have a matter that may be the subject of litigation, you should seek an attorney’s advice immediately.