By Adam T. Kronfeld, of Duff & Kronfeld, P.C. posted in blog on Monday, August 27, 2018.
Litigating a civil dispute can be a lengthy process from beginning to end, sometimes spanning many months or even years. While each dispute is different, with its own facts and its own needs, the procedural steps that parties undertake will tend to follow the game general pattern. The following is a brief outline of the stages of litigation one can expect to face.
Investigation: Prior to any claim or demand being made to an opposing party, or prior to filing a lawsuit, a party (and his or her attorney) must know the factual and legal basis for their claim. Virginia law requires that parties and attorneys only file lawsuits when they have a good faith belief that their factual circumstances support their claims, and after having conducted at least a rudimentary investigation into those facts. Moreover, before entering litigation, an attorney should be able to tell you whether your claim is actually viable – not just whether the facts and law are on your side, but whether it is even worthwhile for you to spend the time and money that will be involved. Consequently, you can expect that a competent attorney will ask you to provide information and documentation related to your claims.
Initial Pleadings: To initiate a lawsuit, a plaintiff must file a document that explains the facts giving rise to his or her claim against the opposing part. In Circuit Court, this is called a Complaint. In General District Court, two documents called a Warrant in Debt and Bill of Particulars serve the same purpose. For example, if you were the victim of a vehicular collision, you will need to explain in general terms when the collision occurred, how it occurred, who was involved, and if you were somehow injured. Virginia courts do not require you to put your entire case in your initial filing, but you have to include at least enough that the other parties involved can understand why you are suing them.
Responsive Pleadings: After the plaintiff files a Complaint, and after legally-sufficient notice is given to other interested parties (defendants), those parties are required to file some written response to the Complaint. These responses can include challenges to the legal basis for the lawsuit (a Demurrer or Plea in Bar), a challenge to the court’s jurisdiction or method of giving notice of the lawsuit, or a written Answer that admits or denies the truth of the various facts alleged in the Complaint.
Counter-Pleadings and Third-Party Pleadings: Sometimes, the defendant who is sued may have his or her own claims back against the plaintiff. For example, if the plaintiff claims the defendant breached a contract, it may be that the defendant claims that it was actually the plaintiff who breached the contract. In such a circumstance, the defendant can file a counter-claim against the plaintiff, rather than filing a new and separate lawsuit. Additionally, if the defendant claims that some other individual is actually responsible for whatever wrong the plaintiff is suing over, then the defendant can pull that individual into the lawsuit by filing a Third-Party Complaint against them.
Discovery: The discovery process is a form of formal and compulsory investigation into the facts involved in the parties’ various claims and defenses. Parties can require each other to provide information and documentation relevant to the lawsuit. Parties can require people completely uninvolved in the lawsuit to provide documents, and can conduct the depositions (interviews under oath) of parties and non-parties alike, to learn what information that they might possess. Discovery can go on for months and months, particularly if the facts are ongoing and changing over time. In many cases, discovery is the most time-consuming and costly part of the litigation process, particularly if the lawsuit involves a large volume of documents, or if individuals do not cooperate and must be ordered by the courts to comply with requests.
Trial Preparation: The two to three months before a trial is conducted can be the busiest and most expensive stretch of time in litigation. During that period of time, attorneys and parties begin to face deadlines for producing information to each other and advising each other what information and documentation they intend to produce at trial. Parties will have to “put together” their cases, interview and prepare witnesses, and otherwise make certain that they have everything they need to demonstrate to a judge or jury that their facts are true and that the law supports a verdict in their favor. Some attorneys might tell you that a “rule of thumb” for trial preparation over this period of time is that the attorney will spend one day in preparation for every one scheduled day of trial.
Trial: A final trial is the culmination of all the work performed throughout the litigation. Trials can be presented before a judge or a jury, depending on the type of litigation and whether either party asked for a jury to decide. Trial is where the parties present all the information and documentation they can that supports their respective positions. The parties may (or may not) testify on their own behalf, present fact witnesses, present expert witnesses to give opinions (such as doctors opining on the origin of an injury), show documents the support their allegations, and otherwise tell the judge or jury what they contend happened and what should be done about it. Trials themselves have their own sequential procedural stages, which will be addressed in the near future in an entry on this blog.
Post-Trial: A party who does not agree with the verdict of a jury or rulings of a judge may take some action in order to receive a more favorable result. The aggrieved party may ask a judge to overrule the jury decision, or, if a judge decided the case, to reconsider his or her decision. A party may seek to appeal the verdict to a higher court. In some cases, the appeal may cause the case to start over “from scratch,” as though the litigation never occurred. In other cases, the higher court can overturn the result of the trial only if the judge made a legal error. Where the aggrieved party’s lawyer made an error that caused the bad result, it may be appropriate to pursue a claim for legal malpractice against that attorney.
The foregoing is a cursory overview of the stages of civil litigation in Virginia courts. Every case has its own facts and some of the foregoing may not apply in every case. An attorney at Duff & Kronfeld, P.C. would be more than happy to discuss the foregoing with you in the context of your potential civil litigation matter and explain what you can reasonably expect should you choose to enforce your rights in court.
If you have any questions or would like to discuss your legal matter with an attorney, please contact Duff & Kronfeld, P.C. at (703) 591-7475 for a complementary, 30-minute consultation.