This is a two-part series on litigation and what to expect.
Whether it is you bringing the lawsuit or whether you are the one being sued and finding yourself defending allegations in court, there are certain things you should understand and expect.
Litigation takes an incredibly long time – once a complaint is filed, the lawsuit is started. You can expect that one year from then, you will still be involved in the litigation. Most courts set a case management schedule that is one year long, and often times, deadlines set forth on that case management schedule are continued and pushed back for various reasons. Also, the fact is that litigation involves multiple phases, each with their own intricacies.
This blog post will address the first two phases of litigation: Pleadings and discovery
The first step is the pleadings phase:
A lawsuit begins with a complaint being filed; the compliant must describe the facts that led to the lawsuit. Further, the complaint must sufficiently establish via the facts the elements of each legal claim being brought. If your complaint fails to establish the elements of the claims being brought, then the court may dismiss part of the complaint that was not sufficiently plead.
Once served, a defendant has 28 days to respond formally to the complaint. The response can be in the form of an Answer or a defendant can choose to file a motion asking for certain claims in the complaint to be dismissed. If the defendant files a motion to dismiss certain claims, or all of them, the court will rule on that motion. And, if the complaint remains, the defendant must file an answer within 14 days of the court’s decision on the motion. Additionally, a defendant may need to file a counterclaim. A counterclaim is where the defendant alleges wrongdoing on part of the plaintiff and brings claims, if any, against the plaintiff.
Parties are generally served with the pleadings by certified mail.
The second phase of litigation is called discovery:
Discovery is where the parties build their respective cases by requesting information from the other side. There are written and oral discovery methods. The written methods are 1) Requests for production of documents, 2) Interrogatories, 3) Requests for admissions. Once served with written discovery, you have 28 days to respond by providing the documents, answering questions, and admitting or denying the requests for admissions.
Request for production of documents– A Request for production of documents is exactly what is sounds like. Upon request, a party must product documents relevant to the claims plead in the lawsuit. Any document that is relevant is able to be requested, and relevancy is a low bar. Producing documents is almost always a huge pain and very time consuming.
Request for admissions – a request for admissions ask a party to admit or deny certain statements that are germane to the dispute at hand.
Interrogatories – Interrogatories are written questions issued to your opposing party. Any relevant question concerning the litigation can be asked. This includes basic questions about the facts of the case. Interrogatories are typically limited to 40, but with permission from the court, you can ask more.
The oral method of discovery is called a deposition. A deposition is formal testimony that is taken in person. This means, you show up and the opposing counsel gets to ask similar questions to the questions that could be asked at trial. And, then your attorney gets to ask the same of the opposing party. Depositions notoriously take a long time, and can be very expensive and frustrating.
The opposing attorney will ask the party questions about anything at all related to the lawsuit. Typically, you must answer questions, even when your attorney objects, because there is no judge there to sustain or overrule objections. Most objections are simply noted, and the person being deposed must answer the questions following the attorney’s objection. This does not mean the testimony is admissible at trial, however.
Once discovery is collected, it is time to prepare and file dispositive motions and then, if necessary, prepare for trial. The next post in this two part series will cover the motions phase of litigation and trial preparation.
Wick Law, LLC is a small business legal practice, representing owners, investors, and entrepreneurs in all aspects of commercial, corporate, and business law, estate planning, contracts and negotiations, business litigation, and real estate. For more information: Contact 614-572-6366, visit www.mwicklaw.com, or email us at mwick@mwicklaw.com. Wick Law, LLC is located in Columbus, Ohio.
(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.)
