Many types of cases are litigated, including medical malpractice claims, legal malpractice claims, personal injury claims, breach of contract cases, and many more. “Litigation” is an umbrella term that means a lawsuit or case that proceeds through the court system. “Civil litigation,” which is what we do, is when the lawsuit asks for money damages.
If you are imagining a scene from “The Good Wife” or “Damages” in a courtroom with a judge and jury, you are on the right track. But real litigation is not nearly so dramatic, and it takes much longer than an hour to resolve. There is more to litigation than going to trial. The litigation process starts before a lawsuit is even filed, and oftentimes ends before a trial. Here is an outline of the process:
Hoffer & Sheremet’s medical malpractice and legal malpractice attorneys conduct investigations presuit to see if you have a viable claim. If you do, we initiate litigation by filing a lawsuit.
A lawsuit begins with the filing and service of a Complaint by the person bringing the lawsuit, called the “plaintiff”. The Complaint details the allegations against the person or corporation being sued, called the “defendants”. The defendants have either 21 or 28 days to file an Answer to the Complaint, depending on whether they were served in person or by mail.
The “discovery period”, the time between filing the Complaint and settling the case or going to trial, is the parties’ opportunity to “discover” each other’s evidence. There is written discovery, depositions, and examinations. Written discovery could be interrogatories (written questions), document production requests, or requests to admit certain facts or the application of facts to law.
Depositions are formal, verbal question and answer sessions. The plaintiff, who is usually our client, is generally deposed first. We meet with you before your deposition to help you prepare. Fact witnesses – the plaintiff, defendant and anyone with personal knowledge of the facts of the case – are typically deposed first. If expert witnesses to support or defend the case have been retained by the parties, they will usually be deposed later in the case.
A “motion” is a request that the Judge rule on an issue. Throughout the discovery period, “discovery motions” are filed that order a party to respond to discovery or determine the scope of discovery. After the discovery period ends, “dispositive” motions are filed. These are motions that dispose of an issue, or sometimes the entire case. Shortly before trial, Motions in Limine are filed, which will determine the admissibility of certain evidence or testimony at trial.
Alternative Dispute Resolution
After the discovery period ends, there are several opportunities for settlement. At “case evaluation”, the parties’ attorneys present their case to a three-attorney panel (plaintiff, defense and neutral). These attorneys give an amount they think the case should settle for, called an “award.” The parties can either accept or reject the award. If both parties accept, the case is over. If one party accepts and the other rejects, the rejecting party could be subject to sanctions if the case proceeds to trial and the rejecting party loses.
Sometimes the parties use an independent attorney to help resolve the case. This is called “mediation,” and the independent attorney is called a “mediator.” The mediator will talk to both parties about the issues with the case, what he or she thinks the case is worth, and will attempt to help the parties reach a settlement agreement.
Most courts hold “settlement conferences” after case evaluation but before the trial is scheduled. Courts vary in how they conduct settlement conferences. Sometimes the judge will be very involved, acting as a mediator. Other times the judge does not involve himself in the discussion, requiring only that the parties appear and at least discuss settlement. And occasionally, if a party steadfastly refuses to discuss settlement, the judge simply lets everyone go home.
If the case doesn’t settle, the Court issues a trial scheduling order. The trial date is usually scheduled several months after the settlement conference, depending on the Court’s docket. Some cases can and do settle in this time, as trials are becoming rarer. If a settlement is not reached, and a jury trial proceeds, before the trial, jury instructions are prepared, motions about evidence are filed, jury panel questionnaires are reviewed, and juror notebooks are assembled. The jury is selected on the first day of trial, then opening statements are given. Occasionally, the defendant will wait and give his or her opening statement after the plaintiff’s witnesses testify. The plaintiff presents his or her “case in chief” first. This is where the plaintiff must, through documents and witness testimony, establish the elements of his or her claim. Defendant will usually cross-examine each witness.
After the plaintiff’s case in chief, defendants usually make a “motion for a directed verdict.” The defendant argues that the case should end at that point because the plaintiff failed to establish the elements of the claim. These motions are rarely granted. Next, the defendants present their witnesses. Sometimes, the plaintiff will call rebuttal witnesses after the defendants’ witnesses are done.
After all of the witnesses have testified, the parties give closing arguments – first the plaintiff, then the defendant. The plaintiff usually gets the last word, and gives a brief rebuttal argument. Then jury instructions are given and the jury deliberates. The jury could deliberate for minutes, hours or days. The jury returns with either a verdict for money damagesfor the plaintiff or a verdict of “no cause,” which means the defendant won.
Litigation does not end with a verdict. Post-trial motions are filed either to overturn the verdict or to lower the amount of the verdict. After those motions, the Court enters a judgment. That judgment is usually appealed. The appeal process generally takes at least a year and can take several years. Sometimes cases settle during the appeal period.
The Court of Appeals will either affirm the judgment or, if there were errors during the trial that affected the outcome, reverse and remand for further proceedings. Either party can ask the Michigan Supreme Court to review the Court of Appeals’ order. If the Court of Appeals affirms, and the Supreme Court does not hear the case, the defendant must pay any judgment amount. If the Court of Appeals remands (and the Supreme Court does not hear the case), more proceedings are held in trial court. Sometimes this is just to adjust the judgment amount, but sometimes it could mean a whole new trial. If the Supreme Court hears the case, it will either affirm the Court of Appeals or remand to either the Court of Appeals or trial court for further proceedings.
As you can see, the litigation process is long and cumbersome. It is a roller coaster, filled with ups and downs. We recognize how difficult it is for our clients to go through this process. We stand with our clients every step of the way.