The Litigation Process

By Teo Spengler
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To sue or not to sue, that is the question. The litigation process is long, time-consuming and costly, but few alternatives are available to resolve legal problems that offer the same advantages. Before you jump into the fray, it pays to understand the different stages of the process.

Understanding Litigation

Think of litigation as a civilized alternative to a gun battle or a duel. Going to court is a way to have an impartial judge and/or jury resolve your legal disputes. Essentially, each side presents its basic positions in pleadings, exchanges evidence in discovery, and then prepares for, and participates in, a trial. It's up to the person who brings the lawsuit, termed the plaintiff, to prove each element of her case by a preponderance of the evidence -- meaning enough evidence to make the truth of each necessary fact more likely than not. If she does so, the judge or jury determines how much money she is entitled to receive from the defendant.

Pleadings Start the Ball Rolling

The plaintiff starts litigation by serving the defendant with a summons and complaint. The complaint outlines the defendant's conduct and describes how it caused the plaintiff damage. The summons tells the defendant when and where to file a response. In a response, the defendant admits or denies the allegations, or he can claim that he doesn't have sufficient information to admit or deny a particular allegation. He can also raise his own claims against the plaintiff. These pleadings -- complaint and answer -- serve as the spine of the court case.

Sharing Evidence During Discovery

In U.S. trials, neither side should ever be surprised by a witness or evidence that the other side uses. During the discovery process, each side has an opportunity to learn information about the other side's case. The rules allow for a variety of discovery tools; for example, interrogatories are written questions that must be answered under oath, while depositions are oral question-and-answer sessions under oath that are recorded and transcribed. If a party uses discovery tools effectively, she knows the other side's case well before trial.

Going to Trial

If parties do not arrive at an out-of-court settlement, they end up taking the case to trial. Either party can request that the trial be held before a jury. Otherwise, a judge rules on facts and law. At a trial, each side marshals her best evidence to persuade the judge or jury that she should prevail. The plaintiff gives her evidence first, presenting an opening statement and calling her witnesses. The defense attorney has the right to ask questions of each witness in turn. When the plaintiff is done presenting, the defendant presents his own witnesses. At the end of trial, each side gives a closing argument. Then the judge instructs the jurors about the law and sends them out to deliberate. If judgment is entered for the plaintiff, the jury determines the amount of money she is owed as well.

About the Author

Living in France and Northern California, Teo Spengler is an attorney, novelist and writer and has published thousands of articles about travel, gardening, business and law. Spengler holds a Master of Arts in creative writing from San Francisco State University and a Juris Doctor from UC Berkeley. She is currently a candidate for a Master of Fine Arts in fiction.