Litigation Phases

What are the stages of civil litigation? Lawsuits (and most arbitrations, really) normally go through three or four main phases (putting aside things like emergency injunctions):

PLEADINGS: The filing of the complaint, the answer to the complaint, any counter-claims (and more exotic pleadings, like cross-claims and third-party complaints) take place at the beginning of the case. Also, disputes over the sufficiency of the complaint, jurisdiction, and similar foundational issues, or attempts to change courts, are usually handled at this time.

DISCOVERY: Do you know what ennui is? A kind of anxious boredom, or perhaps bored anxiousness? That pretty accurately describes the discovery stage. In this stage, the parties are allowed to get information from each other and from non-parties (often in the same manner as a dentist extracts a tooth) in manners both formal and informal, usually away from the oversight of the courts (which dislike getting too involved). It is by far the longest litigation stage. One may request documents (including electronically stored information) from your adversaries, make your adversaries answer written questions, take depositions (like interviews but involuntary and under oath), inspect property and IT equipment, and so forth. Of course, your adversaries get to do the same to you. During this time, once enough discovery has been taken, you or your adversary might move for “summary judgment,” on grounds that, if you limit the legal analysis to just the undisputed facts, there’s only one way a jury could go. As you can imagine, such motions are very elaborate and time-consuming, but still much less so than trial.

TRIAL: You’ve seen these on TV. In real life, they’re less exciting, and the lawyers generally have to follow the various rules of procedure and evidence (unlike their TV counterparts, who apparently operate by an entirely different set of rules). They can last for a day or two (rarely), or go on for weeks, depending on the needs of the case. In addition to spending all day at the courthouse, your lawyers will also be busily working on trial briefs, jury instructions, evidentiary motions (known as “motions in limine”), and even more elaborate motions (such as for a new trial).

APPEAL: Even after the trial, it’s not necessarily over, since the losing party (and sometimes the winning party) can appeal. Appeals consist mainly of long briefs written by the lawyers, plus a short argument before a 3-judge panel. Appeals are not the time to raise new legal theories or introduce new evidence! The point of appeals is to correct mistakes made by the trial court, not to re-litigate the case. Their scope is, therefore, limited to the “record”: the evidence that was recorded at trial, and the arguments that were presented during litigation. Most appeals uphold the original verdict, but some result in a complete reversal (*i.e.*, the winners and losers essentially trade positions), and still others are sent back to the lower court for a new trial (oh, joy!).

For more, please consider these blog posts:

  • For more about emergency injunctions (temporary restraining orders and preliminary injunctions), this blog post about cheap wine and trademarks is a good introduction.
  • For more about proceedings before the Trademark Trial and Appeal Board (TTAB), this blog post, which is oddly also about wine, discusses one of the main differences between the TTAB and a “real” court (and also why “real” courts don’t issue advisory opinions).
  • For a bit more about the pleadings stage, and about motions to dismiss at the pleadings stage in particular, this blog post about hamburger commercials, bad Elton John and Dr. Luke songs will tell most of what you want to know.
  • For a discussion about an obscure but important rule of procedure that, if correctly applied, cut off the other side’s right to attorney’s fees, try this blog post about a dastardly scheme to distribute an industry newsletter.
  • This blog post about lacrosse and sharks discusses declaratory judgment lawsuits, which is kind of like a lawsuit with its polarity reversed.

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