WHAT IS LITIGATION?
Litigation is the process that begins when you file a lawsuit and ends when the lawsuit is completed, typically either through a settlement, the dismissal of your case, or a final ruling by a judge or jury. The whole process can last only a few days, such as if there is an early settlement, but it also can last many years.
WHAT ARE THE PHASES OF THE LITIGATION PROCESS?
Whether you are suing someone or being sued, or being called as a witness, a lawsuit is a complicated legal process, and it can be full of unpleasant surprises and frustrating delays. Don't forget, there are at least two parties to every action, and that means the schedule and the events which take place can be out of your hands. Nonetheless, some things happen in the same order in most litigation, and you can at least get a general idea of what's likely to happen. It will also help to know some of the words and phrases that come up in a lawsuit.
The following chronology gives a general idea of how a lawsuit proceeds. Your action may be different because of differences between state laws and rules of civil procedure. Your attorney can help you understand exactly how your lawsuit will fit with this chronology-remember, your attorney works for you, and should clearly explain every step of the legal process.
COMPLAINT & ANSWER
A civil action (as opposed to a criminal or family proceeding, for example) begins with a Complaint, usually accompanied by a Summons. A Complaint is a legal document that lays out the claims that the Plaintiff (the person or business bringing the lawsuit) has against the Defendant (the person or business being sued). Typically, a lawyer will prepare this document.
A civil action is officially commenced in one of two ways. In some states and in federal court, filing the Summons and Complaint with the court commences the action. In many states, serving the Summons and Complaint on the other party commences the action. Some jurisdictions prohibit Plaintiffs from serving the documents themselves. In jurisdictions where an action is commenced by service, the action can go on for a long time before the court ever becomes involved.
The Defendant has to answer within a certain time (usually about three weeks). The Answer says what portions of the Complaint, if any, the defendant admits to, what the Defendant contests, what defenses the Defendant may have, and whether the Defendant has claims against the Plaintiff or any other party.
If the Defendant doesn't answer the Complaint, the court may enter a default judgment against the Defendant. If the Answer contains a counterclaim or a third-party complaint, the party against whom that claim is made also has to answer within a certain time.
Typically, the first stage of an employment lawsuit is the “discovery” phase. The parties exchange documents and other information about the issues relevant to the litigation, by a process called Discovery. Discovery can take three forms: written questions (usually Interrogatories) which must be answered under oath; document production; and Depositions, which are formally transcribed and sworn statements taken in front of a court reporter or other court officer. The information is used in preparing the case for trial.
During discovery, the employer and employee learn information about each other’s facts and evidence. For example, your lawyer can send written questions (called interrogatories) and requests for documents to the lawyer representing your employer. In addition, your attorney can take depositions of key witnesses to learn what they know and what they are likely to say at a trial. A deposition is basically an interview under oath, and is similar to trial testimony except it usually takes place in a lawyer’s office instead of in a courtroom and there is no judge or jury present. In New Jersey, the discovery phase in an employment case typically lasts between 6 months and 2 years.
After discovery is over, either party, but usually the employer, can file a motion for summary judgment. If an employer files a motion for summary judgment, it asks the judge to dismiss the case on the basis that even if you are able to prove all of the best possible facts that support your claim you still would not be able to meet the legal standard to prove your claims. For example, in a wrongful termination case the employer might claim there is not enough evidence to prove you were fired for an illegal reason such as because of your age, race or gender.
One of the best alternatives to litigation is negotiation. Employment lawyers frequently write “demand” letters to companies in which they attempt to negotiate a reasonable severance agreement or settlement package before a lawsuit has been filed. In addition, even after a lawsuit has been filed there are usually numerous opportunities to attempt to negotiate a settlement during the litigation process.
MEDIATION AND SETTLEMENT CONFERENCES
Mediation is a process through which a neutral (typically another lawyer or a retired judge) tries to help the parties reach a settlement. Similarly, in both state and federal court judges often hold settlement conferences to try to help the parties amicably resolve their claims.
Yet another alternative to litigation is arbitration. Arbitration is when the parties hire one or more private individuals to act as, in effect, the judge and jury in their case. While arbitration generally is considered less favorable to employees, it might be required if you signed an arbitration agreement with your employer.
Assuming you have enough evidence to survive a motion for summary judgment and your case has not settled, the next phase of litigation is usually a trial. Most employment law trials are decided by a jury. However, a judge still makes rulings on legal issues including what evidence can be used, and explains to the jury what each side has to prove to win.
If you win a trial, the judge or jury can award you damages. In employment cases, this typically includes damages for your emotional distress and your lost wages and benefits. In some situations the judge or jury also can award you punitive damages. Punitive damages are intended to punish a company or an individual for especially egregious behavior. In most discrimination and retaliation cases in New Jersey or New York, if you win the employer usually is required to pay you attorney’s fees and some or all of your out-of-pocket cost of pursuing your lawsuit.
Even after the trial is over the litigation process is not necessarily over. Either party can appeal. An appeal is a review of the trial court's application of the law. There is no jury in an appeal, nor do the lawyers present witnesses or, typically, other forms of evidence. The court will accept the facts as they were revealed in the trial court, unless a factual finding is clearly against the weight of the evidence.