Litigation Basics—Helping You Understand the Process
APPEAL—In litigated matters, an appeal is usually a request to the appellate court to reverse a trial court’s decision on the basis of a mistake made by the court or jury. In some instances an appeal may be taken from an order of an agency. In that case, the first appeal might be to a trial court.
ARBITRATION—Arbitration is a substitute for a trial. Instead of the parties having their dispute decided by a judge or a jury, an arbitrator decides their dispute. Arbitrations typically occur in an office as opposed to a court and are more informal. However, unlike a trial in front of a judge or jury, typically they are binding and the decision of the arbitrator cannot be appealed. Also, the parties must pay the arbitrator to decide their case. Many times contracts between parties require them to have their disputes resolved in arbitration because they believe it will ultimately be faster and less expensive. Unfortunately, that is rarely the case.
CASE MANAGEMENT CONFERENCE (“CMC”)—After a case is assigned to a judge, he/she typically sets a CMC to occur in about 90 days. At the CMC, the parties’ lawyers appear and advise the court about the basic nature of the dispute. Typically they will advise the judge about the amount of discovery (depositions, interrogatories, etc.) that they anticipate and how long it will be before they are prepared to go to trial. The lawyers also tell the judge how long a trial will take and whether there is a potential for settlement if the case is mediated. If the answer is no, the judge sets a trial date. If the answer is yes, the judge sets another CMC, and the parties attempt to resolve the case before that CMC. If it is not resolved, the judge sets a trial date at the next CMC.
COMPLAINT—A formal legal document that initiates a lawsuit. The person who is suing is the plaintiff. The person who is being sued is the defendant. A complaint lays out the essential facts upon which the plaintiff bases his or her lawsuit. When a complaint is served on a defendant, the defendant typically files a legal document called an “answer” in which he or she denies the claims in the complaint and states defenses to the claims.
CROSS COMPLAINT—Often times the defendant being sued in the complaint also may believe he or she has claims against the plaintiff. In that case, the defendant will file a cross complaint against the plaintiff when the defendant files the answer to the complaint.
DEPOSITION—To learn the facts that support a claim or to pin down the opposing party, lawyers often “take the deposition” of a witness to events or the party. In a deposition, an attorney asks questions and the witness answers while a court reporter transcribes the testimony. The testimony given in a deposition has the same force and effect as testimony at trial. Depositions often are videotaped and shown to a jury during trial. If an important deposition is taken in your case, we will provide you with additional information about the process.
DISCOVERY—The stage prior to trial in a lawsuit during which each party may obtain evidence (information) from the opposing party and independent witnesses through written discovery (interrogatories or written questions, requests for production of documents, and requests for admissions) or depositions. If written discovery is undertaken or depositions occur in your case, we will provide you with additional information about the processes.
EXAMINATION UNDER OATH—A formal proceeding during which an insured, under oath and in the presence of a court reporter, is questioned by an insurance company’s attorney regarding the factual background of an insurance claim.
MEET AND CONFER—A court-required meeting that takes place before the court and hears certain types of motions or petitions. Lawyers must “meet and confer,” or consult with each other, to try to resolve disputes or at least determine the points of conflict before asking a judge to decide their controversy.
MOTION—A request to a judge or court for a ruling or order necessary to the conduct of legal proceedings.
MOTION TO COMPEL—A motion asking the court to order an opposing party to produce information or documentation previously requested by a discovery request (i.e., interrogatories, request for production, request for admissions or depositions).
MOTION FOR SUMMARY JUDGMENT—A motion filed by one of the parties seeking to obtain a judgment on all or part of a case without the necessity of a trial. An issue or case that is decided by summary judgment cannot be presented to a judge or jury at trial.
MOTION TO WITHDRAW—A motion an attorney files when he or she no longer wishes to represent a client and the client will not voluntarily release the lawyer as his or her attorney. Typically, this motion occurs when the client does not pay his or her legal fees or a dispute arises between the lawyer and client.
REQUEST FOR ADMISSION—A written statement submitted to an opposing party (before the trial begins) asking that the truth of certain facts or the genuineness of particular documents concerning the case be acknowledged or denied. If requests for admission are served in your case, we will provide you with additional information about the significance of those requests and how we might respond to them.
REQUEST FOR PRODUCTION—A legal request for documents, electronically stored information, or other tangible items pertinent to the subject matter of a lawsuit.
WITH OR WITHOUT PREJUDICE—A formal determination by the court about whether a party may re-file an action. In a civil case, dismissal/denial without prejudice is a dismissal of a motion or lawsuit that allows for the re-filing of a motion or lawsuit on the same claim in the future. Dismissal with prejudice is a final judgment by the court and means that the plaintiff is permanently barred from filing another case on the same claim in the future.
WRITTEN INTERROGATORIES—A discovery device that enables parties to a lawsuit to learn about facts of the case alleged in the complaint. Written interrogatories (written questions) are used primarily to determine the issues present in a case and to frame a responsive pleading or a deposition. Only parties to an action are required to respond to interrogatories, unlike depositions that question both parties and non-party witnesses. If written interrogatories are served on you, we will provide you with additional information about the device and will counsel you about how to respond.