What To Expect When Suing Or Being Sued – A Litigation Guide For Clients

For many, litigation can be the most stressful things you ever do, whether you're the one filing a lawsuit or the one being sued. Lawyers who live and breathe litigation may forget this, leading to failure to properly prepare a client for the battle ahead. Understanding the process can help you prepare and make informed decisions. Here’s a basic, step-by-step guide to what you can expect.

Step 1: The Complaint and Response

The Initial Filing –

The lawsuit begins when the plaintiff (the party initiating the lawsuit) files either (1) a Writ; or (2) a complaint. The difference between the two is a Writ simply preserves all of plaintiff’s claims in perpetuity and there is no action required by the defendant. The Complaint outlines the legal claims, and the defendant must respond by a certain deadline, usually between 30-60 days, or face a default judgment (meaning the defendant loses).

If you are a plaintiff, be prepared to quickly retrieve and give any necessary information to your attorney for the complaint. Your attorney will send you a draft complaint that will need to be verified (in state court only), meaning you must review the complaint for factual accuracy and sign a verification stating that everything in the complaint is true. NOTE: The complaint is not a document for saying everything you want to say in the lawsuit. Your attorney has carefully crafted the complaint to include the material and legally operative facts. Unless some major fact is missing, only check the Complaint for factual inaccuracies. After you verify the complaint, your attorney will file and have it served to defendant(s) according to the rules of the relevant court.

Defendant’s Response –

The defendant can either file an answer, admitting or denying allegations, or a motion to dismiss (or “preliminary objections” in Pennsylvania state court) if they believe the complaint, or any part of the complaint has any deficiencies. These filings are very common in both federal and state court, even with the best plaintiff’s attorneys. They can be used to fight legitimately deficient cases and theories but are often used for leverage or to get concessions for the other side before litigation continues. The adjudication of motions to dismiss or preliminary objections requires multiple pleadings including legal briefs and memoranda, each of which has response deadlines of a few weeks, and the parties will file these documents back and forth. This can sometimes take months.

Then, when the relevant documents are filed, an argument date will usually be set, which can be weeks or months in state court. If you are litigating in federal court, it can be many months before a judge rules on the issue. Therefore, an attorney may suggest filing an amended complaint which resets the filing deadline for defendant’s answer. If the defendant’s attorney still believes there is an issue with the complaint, defendant can file another motion to dismiss or preliminary objections, and the long cycle continues.

If the defendant cannot file motion to dismiss or preliminary objections, defendant will have to file an answer, and if applicable, counterclaims against the plaintiff. In state and federal court, answers constitute monotonous, very procedural responses with some facts mixed in, as well as potential legal defenses to the claims. The plaintiff must also file an answer to any counterclaims. In state court, an answer to a complaint and any counterclaims must also include a signed verification, so be prepared to do so.

Step 2: Discovery Phase

The pleading stage is often confusing to clients, which is why so much care was taken in explaining it, above. After all pleadings are filed, clients will experience something even laypersons may be familiar with: discovery. In discovery, both sides exchange evidence and information through depositions, interrogatories (written questions), and written document requests. This phase can take many months and is critical in building a case or negotiating a settlement.

Written Discovery –

For the written requests, litigants typically have thirty days to respond. You must fully and completely respond to all questions; however your attorney will make legal objections to some questions, making your task easier. Written discovery is often the most time-consuming litigation task for clients and attorneys alike, but this task is complicated by clients who do not take written discovery as seriously as they should. The discovery requests you receive are an urgent and serious matter. Failure to timely and fully respond will result in court-imposed sanctions against you. Ideally, you should have anything related to the case already prepared before you even consider beginning litigation. Either way, it is imperative that you retrieve all documents, fully answer all questions, and sign any papers your attorney gives you as quickly as possible.

Depositions –

You should also expect to be deposed. Depositions are conducted in a lawyer’s office (and recently often over Zoom) with lawyers for the parties present. A court reporter will also be there recording everything that is said stenographically. Your attorney will prepare you for the deposition. Typically, first-time litigants are very nervous before their deposition, but if you stick to what is discussed during your preparation, at the end you will (hopefully) tell yourself it was not so bad after all.

Step 3: Pre-Trial Motions and Hearings

Attorneys may file motions to exclude evidence, dismiss parts of the case, or request summary judgment (a “win” on an issue/claim) if there is no dispute over key facts. Final settlement discussions intensify at this stage, and often a mediation is held. During mediation, the parties will appear at another, independent lawyer’s (the mediator) office and sit in different rooms. Each side will explain their case to the mediator and propose a settlement offer. The mediator will bounce back and forth between the rooms trying to find a number that works for all parties. If the mediation fails, you should expect to go to trial.

Step 4: Trial

If no settlement is reached, the case goes to trial, where each side presents arguments, evidence, and witness testimony. A judge or jury then decides the outcome. Before this, your attorney will file a pre-trial statement, send/file necessary documents to get witnesses to show up and the necessary evidence presented at trial. Whether you are a plaintiff or defendant, you should know that juries are very unpredictable. A verdict could ruin your life. The best plaintiff’s cases with the best possible evidence and experts have resulted in a $0.00 verdict, and borderline frivolous cases have destroyed defendants with multi-million-dollar verdicts. For this reason, less than 10% of cases go to trial. Carefully listen to your attorney when negotiating or mediating. You have the final say with settlement, but once the verdict comes in, barring appeals (not always possible) your fate is sealed.

Conclusion

Litigation can be scary, but knowing the basics of the process, and therefore what to expect, can reduce stress and even create better attorney/client relationships. It is important to carefully listen to instructions and consider all options provided by your attorney at all stages of litigation. If you think you have a case, contact The Skeen Firm at 724-249-2439.

*Disclaimer: the advice provided is for informational purposes and is not intended as legal advice.  It should not be relied on, nor construed as creating an attorney-client relationship.