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What is “litigation”?

Litigation simply means taking legal action, most commonly in the form of a case filed in a court (i.e., a lawsuit).

How does litigation begin?

Generally, the litigation process begins with the filing of a complaint by a plaintiff. The purpose of a complaint is to state generally the legal theories and the facts upon which a plaintiff relies for the right and/or relief that the plaintiff seeks to enforce. The person or entity being sued, called the defendant, has a certain amount of time to respond to the complaint and assert defenses to a plaintiff’s claims. A defendant’s response is called an answer. A defendant also may file a counterclaim, which is a defendant’s opportunity to assert claims that the defendant may have against the Plaintiff.

What is “discovery”?

Discovery is the process through which the parties exchange information relating to the lawsuit. Each party has both the right to conduct discovery and the obligation to respond to discovery. The available discovery tools allow the parties to:

  • Request the production of specified documents;
  • Ask written questions called interrogatories to which another party must respond in writing;
  • Ask oral questions of a witness who must respond under oath in a deposition; and
  • Ask for admissions of facts.

The purpose of discovery is to allow the parties to go to trial with full knowledge of the facts that may lead to a claim or a defense so that they are not surprised at trial. If the parties cannot agree to what information their opponent is entitled to receive, they present their dispute to a judge, who will resolve the dispute before trial.

Who will decide my case?

Either a judge or a jury will decide the outcome of the litigation, unless a negotiated resolution is reached before the litigation resolves. Whether a judge or a jury decides the case is largely dependent on the dollar amount at issue in the case. If the applicable law allows the dispute to be heard by a jury, either the plaintiff or defendant must demand a jury within a specific timeframe. Otherwise, a judge will decide the dispute.

Can a judge or a jury make a decision on my case before a trial?

There are generally two opportunities for a decision to be made before a trial. The first opportunity is through a motion to dismiss, filed by a defendant. A motion to dismiss assumes as true everything that the plaintiff says in the complaint but asserts that there is a legal deficiency in the plaintiff’s case such that the plaintiff is not entitled to assert the right or seek the remedy specified in the complaint. The second opportunity is through a motion for summary judgment, which may be filed by either a plaintiff or defendant. In a motion for summary judgment, the moving party asserts that the essential facts of the case are not disputed, such that the moving party is entitled to favorable decision before trial. A judge, not a jury, decides both a motion to dismiss and a motion for summary judgment.

What is alternative dispute resolution?

Alternative Dispute Resolution, or “ADR,” is the process by which parties attempt to resolve their dispute outside of the courtroom. The most common forms of ADR are mediation and arbitration.