In Part I of Litigation – what you can expect, we discussed the first two phases of litigation, which are pleadings and discovery. The next two phases of litigation are dispositive motions and preparation for trial prep / trial.
Dispositive Motions Phase:
A dispositive motion is a thorough (but, concise!) motion to the court that aims to dispose of your opponent’s claims by reiterating your version of the facts and by citing statutory law and caselaw to support your legal position. Drafting such a motion is a skill, and you need a lawyer who loves to write, loves to read case law, and loves the process of putting together motions containing tight legal reasoning that is compelling and concise. Dispositive motions are your final chance to avoid trial on some or all of your claims.
Motion for Summary Judgement:
The primary motion used to get rid of some or all of the claims is called a motion for summary judgement. The legal standard is – a motion for summary judgment will be granted if there is no genuine issues to any material facts and the party is entitled to a judgment as a matter law. Here, if you’ve conducted adequate discovery you should have all evidence that you need to draft a compelling motion for summary judgement. Keep in mind, if there is any fact in dispute, a motion for summary judgment will fail. However, a well written motion will imprint your version of the facts on the court, and help the court understand the lawsuit from your perspective.
All evidence can be considered so long as it’s not hearsay. The evidence collected through discovery is crucial and can include deposition transcripts, sworn affidavits, documents, answers to interrogatories and requests for admissions, and expert witness reports.
Following the dispositive motions phase, cases frequently settle. This is because possibly some claims have been dismissed, or the weakness / strengths of each parties’ respective claims have been further revealed through discovery and dispositive motions. However, a small percentage of cases do proceed to trial. If you find yourself in this situation, you need an attorney with experience and the ability to spend a lot time preparing. There’s no other way to say it: trial preparation and trial is expensive, it’s time consuming and there’s no guarantee you will win. A good trial lawyer has talent, but that’s no substitution for preparation and hard work. In a nutshell, your lawyer will need to prepare your case for trial by doing the following:
- Preparation of opening and closing statements – The jury will need to become acquainted with your case from your perspective, and, the jury will need to have the facts and evidence summarized, from your perspective, at the close of testimony.
- Careful review of all evidence likely to be presented – your attorney must review and understand all of the evidence that will be presented in your case and by the opposing party. This evidence will need to be organized and prepared for presentation to the jury.
- Then, your attorney will need to prepare what will be elicited from your direct testimony. Additionally, your attorney needs to anticipate how you will be cross examined, because you certainly will be, and you will want to know how to address those rapid-fire cross examination questions.
- Next, your attorney needs to prepare you and your witnesses to testify. This entails helping you and your witnesses understand what questions to expect while either of you are testifying on the stand and how to discuss certain pieces of evidence.
- Additionally, your attorney needs to prepare to cross examine your opposing party and their witnesses.
At trial, the first step is jury selection. Here, potential jurors are questioned and based upon their answers some jurors can be excluded for various reasons. Once a jury is selected, each attorney presents an opening statement. The plaintiff presents their case first and the defendant will cross examine each witness following their testimony. The defendant, if they brought claims via counterclaim, will present their case after the plaintiff rests. Once that defendant is done with their case, the parties will present their respective closing arguments. At the close of evidence, the jury will deliberate and render its verdict using jury instructions agreed upon by the attorneys and the court.
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(Materials in this article have been prepared by Wick Law, LLC for general informational purposes only. This list is for educational purposes and is not to be considered exhaustive. More items could be added to this checklist based upon the type of transaction or industry standards. These materials do not, and are not intended to, constitute legal advice. The information provided is not privileged and does not create an attorney-client relationship with Wick Law, LLC or any of the firm’s lawyers. This checklist is not an offer to represent you. You should not act, or refrain from acting, based upon any information in this checklist. Wick Law, LLC maintains offices in Columbus, Ohio, and has lawyers licensed to practice in Ohio and in the United States District Court, Southern District of Ohio. The firm does not intend to practice law in any jurisdiction where the firm is not licensed.)