How does the litigation process work?

WHAT CAN A PERSON EXPECT IF THEIR CLAIM IS NOT SETTLED AND A LAWSUIT IS FILED?
Although a lot of work can go on behind the scenes before a lawsuit is filed, sometimes insurance companies and the responsible parties aren’t reasonable. This leaves a client in the position of deciding what to do – settle or file a lawsuit. When dealing with a personal injury claim, the litigation process means the formal legal process of resolving disputes within the court system. If a lawsuit is filed against the responsible parties, what can you expect if you have Toon Law Firm as your lawyers? For starters, you can expect to be kept in the loop throughout the process.

THE USUAL 5 PHASES AFTER A LAWSUIT IS FILED
There are typically five phases to the litigation process: pleadings, discovery, motions, trial, and appeal. In the example of a car wreck, in order to initiate a lawsuit, we will file the Petition in state court or the Complaint in federal court. These are the initial documents wherein we make allegations against the parties involved. Depending upon the nature of the case and strategy, pleadings can range from a few pages to 50 pages or more. You will be referred to as the plaintiff. The people or companies sued by the plaintiff are called the defendants.

SERVING THE DEFENDANTS
Once the initial pleading is filed, we must properly deliver the lawsuit papers to the defendants. This is called obtaining service on the defendants. If we file in state court, then we will have 6 months to obtain service on the defendants pursuant to Okla. Stat. tit. 12, § 2004(I). If we file in federal court, we have 90 days to obtain service on the defendants. Rule 4, Fed. R. Civ. P. (2017). Once service is obtained on the defendants in state court, the defendants have 20 days to file their answer in state court. Okla. Stat. tit. 12, § 2012. If service is obtained on the defendants in federal court, the defendants have 21 days to answer. Rule 12, Fed. R. Civ. P. (2009).                                                                                                                                                                                                                                                 

THE DISCOVERY PHASE                                                                                                                                                                                                                                             After the defendants file answers, we move into the discovery phase of litigation. Depending on the case and the number of parties, this phase can vary in the time needed to complete the discovery tasks. In most instances, discovery begins with the parties exchanging written discovery requests called Interrogatories. This is simply a written request to answer written questions. There are also written requests called Requests for Production of Documents. This is simply written requests for a defendant to provide items such as documents, photographs, records, videos, memos, etc. Another written form of discovery is called Requests for Admission. This is simply a written request for a defendant to admit certain facts. The parties that receive the written requests have 30 days to respond. In many cases, defendants object to numerous requests for written answers and documents. In those cases, we file motions to compel with the court. A motion to compel is simply a document we file with the court wherein we request a court order against the other side to properly respond to the discovery requests.

In addition to written discovery requests, we often serve subpoenas on non-parties requesting they produce documents and information. In some cases, we will also send out Freedom of Information Act requests to any governmental agencies that may have relevant documents and information. For example, in car-wreck cases we will usually request the police report, photographs and dashcam video from the investigating agency. In medical malpractice cases, we often contact the appropriate governing boards to obtain files for the defendants, which can include nurses, doctors, and pharmacists.

Once the initial round of written discovery is completed, the next step is usually to take depositions of the parties and any witnesses (sometimes, we take depositions before the initial round of written discovery is completed.) During a deposition, an individual or a representative of a company is placed under oath. While under oath, the person answers questions from the attorneys. Depositions can last anywhere from less than 1 hour to a couple of days. The length of the deposition largely depends upon the witness and the nature of the case. It is not uncommon for depositions to reveal that the defendant has illegally not provided all of the pertinent documents or information. When this happens, we are allowed to file a motion with the court to get an order forcing the defendant to properly respond to our written discovery requests.

MOTIONS FOR SUMMARY JUDGMENT
Once the discovery phase is completed, each of the parties typically file various motions. One kind of common motion is called Motion for Summary Judgment. A motion for summary judgment can be a big part of each case. In the motion, the party provides the court with the evidence they believe proves they are entitled to a ruling in their favor before the case ever goes to trial. Once all motions and responses are filed, the court will often have a hearing where each party can argue the merits of the motion and address questions from the judge. The Court will sometimes make a ruling during the hearing; other times, the ruling from the Court comes after the hearing.

THE PRE-TRIAL CONFERENCE
Depending on what happens with various motions for summary judgment, the next step is usually a pre-trial conference. At the pre-trial conference, the court will be provided with a proposed Pre-Trial Order, where both parties advise the court of the legal issues, the witnesses, and the exhibits. The court usually sets the case for trial at this hearing.

Sometimes, the court provides the parties with a briefing schedule to file motions to exclude various evidence from the trial. These motions are called motions in limine.  Each side requests to exclude witnesses, exhibits and anything else the party wants excluded from the trial. While there are common motions in limine that are filed in many cases, each case typically has crucial pieces of evidence that one side wants to be excluded from trial. For example, in a trucking crash lawsuit, if the truck driver has a felony conviction, the lawyer hired by the insurance company may file a motion to keep that evidence from the jury.  The usual argument from insurance defense lawyers is that the evidence is more prejudicial than probative.

Before trial, the court will usually hold a hearing to address the motions in limine filed by both sides. The court will simply make its rulings on the briefs filed by the parties without a hearing. Because the rulings on motions in limine can severely impact the way the case is presented to the jury, all parties usually prefer the court’s rulings to occur well in advance of trial. There are occasions when the court provides its rulings on the first day of trial or during trial.

TRIAL
A trial can last anywhere from a day or 2 to more than a month. It depends upon the complexity of the issues. Most civil trials finish in less than a week. The trial begins with voir dire. That is a fancy phrase for jury selection. During jury selection, the lawyers for each party ask potential jurors questions to determine if anyone has a bias that prevents them from being a juror in the case. Once jury selection is complete and a jury is selected, the parties present opening statements to the jury. An opening statement is what the case is about and what evidence is anticipated to be present at trial. As the plaintiff, we have the burden of proof, so we go first.

After opening statements from each side, witnesses are called to testify under oath. Witnesses provide the jury with the facts through their testimony and exhibits. The other side has the opportunity to cross-examine each witness and present exhibits. After we present our witnesses and exhibits, we inform the court that we rest our case. The other side is allowed to then put on its case in chief by presenting its witnesses and exhibits.

Upon completion of the parties’ cases in chief, including rebuttal witnesses, the court hears arguments about jury instructions. Jury instructions contain the applicable law the jury considers in the case. Sometimes, the parties agree on many of the jury instructions to be presented. However, each party usually has additional instructions it believes should be provided to the jury. The court makes the final decision on the set of jury instructions. The next step is when the court reads the jury instructions to the jury.

Then comes closing arguments. In closing arguments, attorneys argue the facts and the law. Like opening statement, we provide our closing argument first. The other side then provides its closing argument. The plaintiff has the final word with the jury by providing a second part of closing argument.

After closing arguments, the jury deliberates. This is when the jury decides who wins. Like everything else in the course of litigation, deliberations vary in how long the jury takes to reach a verdict. Jury deliberations in civil cases often take less than 5 hours to reach a verdict.

This is a broad overview of the litigation process. There is a lot of work that the legal team at Toon Law Firm does behind the scenes. We keep our clients informed along the way. Whether the goal of our client is to go trial, reach a settlement, or be victorious on appeal, our experience runs deep. Contact the lawyers at Toon Law Firm for a free consultation at 918.477.7884.