The steady stream of information transmitted on the internet has become an integral part of people’s lives, and, as the comments section on nearly any website demonstrates, people are quick to pass judgment.
In contrast, the judicial system moves at a glacial pace. People involved in a noncriminal lawsuit for the first time often are surprised by the lengthy process; it can take years after a case is initiated to reach resolution. However, the system is designed and has evolved over decades (if not centuries) to safeguard against reaching the kind of snap judgments you see on the internet.
Phase 1: Pleadings
The initial phase of a civil lawsuit is the pleadings. The lawsuit usually begins with the plaintiff filing a complaint with the court, which frames the dispute. The complaint should contain:
>> The parties to the lawsuit.
>> The basis for the court having authority over the lawsuit.
>> Allegations of the underlying facts supporting the plaintiff’s claims.
>> The claims and the relief or damages that the plaintiff is seeking.
The complaint should be served, usually by hand delivery, on all named parties (usually called defendants) to the lawsuit. In response, the defendants file their answer to the complaint and either admit or deny the allegations, and list all the defenses they may have to the plaintiff’s claims. They also may file claims against the plaintiff or other parties; these are called counterclaims and cross-claims, respectively.
Phase 2: Discovery
The discovery phase is when the parties seek information from each other and from third parties that may be relevant to the claims and defenses in the lawsuit. There are three basic types of discovery:
>> Document discovery includes requests for paper documents and electronically stored information, like email, text messages, and databases, from people or entities with relevant information.
>> Written discovery requests, called admissions and interrogatories, are questions that must be responded to in writing.
>> Testimony discovery or depositions are examinations where attorneys ask questions of a party representative, individual parties or even of third parties, who are required to answer on the record and under oath. Deposition transcripts often become key tools in preparing and presenting a case in court.
The discovery phase often is the longest, most expensive and most frustrating aspect of the process for the participants. While it can often seem like an end unto itself, its purpose is to elicit all relevant evidence that may be used at trial.
Phase 3: Trial
A trial is the last phase of the civil litigation process, setting aside appeals and other post-trial actions. With its production defined by the pleadings and built on information teased out during the discovery process, the trial can be thought of as the show. Witnesses give testimony under oath, and documents and information are taken as evidence to be considered. The judge or jury then decides the ultimate decision on the case.
The outcome of a case at trial is the culmination of a process that can span months or even years. The above provides just the most basic overview of the process, which was created and has evolved over the years to give all parties the opportunity to create a complete record before a decision is made at trial. It’s a concept that could seem foreign to many who post daily on the internet, who instead rush to judgment, regardless of the actual evidence before them.
William Harstad is a partner in the litigation and alternative dispute resolution practice group at Carlsmith Ball LLP. He can be reached at wharstad@carlsmith. com.
