“You’ll be hearing from my lawyer!” Famous last words. But what does bringing a lawsuit really mean? Make no mistake about it, a lawsuit can be a big commitment, not just in terms of money, but also in time. Your time.
I’ve already talked about the costs involved. You can read all about it at “How Much Do Lawsuits Cost?” Depending on your case and your lawyer, it’s possible your lawyer will advance all of those costs for you.
The amount of time involved is another matter. For one thing, a lawsuit can settle at any time. It can settle before your lawyer files the initiating complaint with the court. It can settle on the courthouse steps on the first day of trial. It can settle right before the jury foreperson reads the verdict. It can even settle after the verdict is read. According to the U.S. Bureau of Justice Statistics‘s 2005 national survey of trials conducted in general jurisdiction courts across the country, only 3.5% of disputes were resolved by trial. The bulk of the remainder were resolved by settlement.
Assuming your case is included in that 3.5%, then here is what you can look forward to.
To initiate the lawsuit, your lawyer will draft and file a legal complaint that describes the legal theories and alleged facts on which you will be suing. The purpose of the complaint is to frame the lawsuit and put the other side on notice as to what they’re being sued for. To draft the complaint, your lawyer will need to interview you (and your witnesses) at length to gather all the necessary facts and documents needed to launch the lawsuit.
In response to the complaint, the party you’re suing, the defendant, will file an answer which lays out the legal defenses they intend to pursue.
The pleadings phase can last 1 to 2 months or more, depending upon whether there are any challenges to the pleadings (more specifically, “demurrers” or “motions to strike”).
Discovery is nothing more than a fancy word for “gathering evidence”. There are two main types of discovery: 1) written questions and requests (more specifically, “interrogatories”, “requests for admission” and “requests for production and inspection”) and 2) witness/party interviews (so-called “depositions”). Your lawyer will look to you to answer the defendant’s written questions and requests, and will then review and finalize your answers before giving them to the other side.
As for the depositions, how you and your witnesses do can make or break your case. At the deposition will typically be a) your lawyer, b) the defendant, c) the defendant’s lawyer, d) a certified stenographer who writes down every word that is spoken, and possibly, e) a videographer who videotapes the deposition. During your deposition, the defendant’s lawyer will pepper you with questions designed to trip you up and make damaging concessions to the other side. Therefore, your lawyer will probably want to spend time with you beforehand preparing you for your deposition. In many ways, your deposition is a preview of the trial itself, when you will need to take the witness stand and undergo similar questioning by the defendant’s lawyer.
The discovery phase can last months to even years depending on your case, how backlogged your court is, etc.
Depending on your lawsuit, your trial may be before a judge (a “bench trial”) or a jury (a “jury trial”). Either way, one problem you will likely encounter, particularly in California, is that the courts are clogged with lawsuits waiting to go to trial. It is highly unlikely your case will be tried on the first date set for trial. Your trial could be delayed by days, weeks, even months due to the court’s schedule.
Once you get to trial, as with the depositions, you will likely be the star witness and how you do will determine if you win or lose and, if the former, how much money you are awarded. You can count on the defendant’s lawyer asking you the same questions they asked you in your deposition and grilling you if your answers differ. You can also count on surprise witnesses and/or documents making their appearance in a bid to catch you off guard. As with the depositions, your lawyer will want to spend time with you beforehand preparing you for the time when you have to take the witness stand.
The trial, once started, can last from as little as a few hours to weeks or months depending on your case, how backlogged your court is, etc.
After trial, there is usually a flurry of motions filed by each side against the other. In some cases, one or more parties will file an appeal with a higher court. The judge could also order that the case be re-tried, in which case you have to again go through steps 1 through 4. Meanwhile, an appeal can take 1 or more years to resolve, although the good news is that it is usually handled entirely by your lawyer with little or no input from you. The bad news is, if you won the trial, you will have to wait that much longer before you can collect your award, and if you lost the trial, you will likely have to open up your wallet and start paying a lawyer an hourly rate if you’re the one doing the appealing.
All told, getting to trial in California usually takes up to a year, and in exceptional cases, several years, while an appeal tacks on another 1-2 years. According to the U.S. Bureau of Justice Statistics‘s 2005 national survey, the median length of time across the country is 22 months from complaint to trial. Luckily, California has a so-called “fast track” system that requires judges to take no more than a year to generally try and dispose of cases.
If the above seems a bit intimidating to you, well, it can be. This is one of the major reasons why so many cases settle. That’s not to say that settlement is always the answer. But if you do decide to go to trial, you should be prepared for the possibility that a) the whole process could take years to run its course and b) you will need to provide a lot of input and effort along the way. Trial is definitely not for the impatient.
If you are considering a lawsuit, contact a lawyer to get more information.