Litigation Process

Each case is unique, and the actions that each party, attorney, witness, judge and juror may take during the case is highly unpredictable. Such unpredictability rattles clients and opposing parties. However, good attorneys tend to relish the challenge. And while the particular actions within each case are unpredictable, cases tend to consist of the following identifiable phases.

The Pleadings Phase

The primary objective of the Pleading Phase is to identify the issues (called ‘causes of action’) that the court will determine. This stage is particularly critical to the plaintiff. If the plaintiff fails to plead an issue that he or she wants the court to determine, the party waives the issue, with limited exceptions. Similarly, if a defendant fails to raise certain defenses to one of the causes of action pled by the plaintiff, the defense is generally waived.

Selecting the right court is a very important first step. Florida is the third most populous state in the U.S. In Florida alone there are 67 county courts, 20 circuit courts, 3 federal court districts, other specialized courts, and numerous appeals courts. Within each court, there are usually numerous divisions, with each division often staffed by multiple judges. These various courts often have overlapping jurisdictions, so choosing the best court for your matter can significantly benefit your case.

Selecting the right causes of action is arguably even more important. To properly plead a case, we need to obtain from the client the relevant issues related to your dispute. We then review possible causes of action which may apply to the issues identified. Then, we seek additional details from the client, to plead the cause of action with the level of specify generally required by the courts. To get a better sense of the complexity of civil pleading, we maintain a database of nearly 100 common causes of action in Florida, and numerous less common causes also exist.

Once the complaint is prepared, we file it with the court along with several other documents. Then neutral third-parties are employed to serve the documents on the defendants. Generally, the law requires that the complaint and related documents be placed directly into the hands of the defendants. Some defendants will try to hide to delay or even avoid the lawsuit. In some instances, this can be a very time-consuming process for plaintiffs.

Once served with the complaint, the defendants will have a limited amount of time to provide written defenses to the complaint. If the defendants fail to do so, the court will eventually rule in favor of the plaintiff. If you are a defendant in a case, you need to immediately obtain an attorney so that he or she can timely respond on your behalf. If the defendants do provide written defenses, the plaintiff may be required to similarly respond to the claims and defense of the defendants.

The Discovery Phase

The primary objective of the Discovery Phase is to identify the evidence that will support each party's claims and defenses. While the Discovery Phase can begin as soon as the complaint is filed, it generally does not begin in earnest until after the Pleadings Phase has completed. Discovery consists of each party demanding documents, written answers and testimony (called depositions) from witnesses and other parties. Depositions are usually costly affairs; however, they are very important because they obtain evidence directly from 'the horse's mouth.' Attorneys use the testimony gained in depositions to better understand the case and to lock in the testimony of the parties and witnesses for trial. If at trial a party or witness subsequently testifies differently from how he or she testified in deposition, the attorney will use the deposition testimony to show that the statement is a lie or at least unreliable. Changes in testimony can significantly reduce the likeability and reliability of a witness at trial.

Expert witnesses are important components of many cases. Their job is to provide technical information which regular folks generally do not possess. Examples of such types of information are many, and include how a particular machine works, standard practices within an industry, the causes of physical injuries, etc. Expert witnesses are not neutral parties, but rather are employed by the parties to tell differing viewpoints to support each party’s case. The deposition of expert witnesses by the opposing attorneys is often a critical part of the Discovery Phase.

Usually, the party from which discovery is demanded will assert that the party demanding the information is not entitled to it. As a result, the Discovery Phase often requires many hearings in front of the judge to determine to which discovery each party is entitled. This is usually a time-consuming effort, and the court has broad discretion to decide which information a party will be given.

The Settlement Phase

May clients have the misperception that a case is not initiated until after settlement fails, and that once a case is initiated, no settlement can occur. In reality, settlement can happen at any time before or during the case. In fact, the vast majority of civil cases settle.

People try to avoid unpleasant matters. Prior to litigation, defendants often avoid offering reasonable terms, or even negotiating, with the hope that the other party will simply give up and go away. At the same time, Plaintiffs often make demands that are far higher than a court would likely determine. Many defendants will appreciate that they must resolve a matter only after a case is filed against them. The threat of a court imposed judgment is a powerful motivational-tool. Therefore, in most cases, litigation is a necessary step towards settlement.

Settlement occurs either through direct negotiation between the parties and their attorneys, or because of mediation. Mediation is third-party-assisted negotiation. In mediation, a neutral third-party, called a mediator, tries to lead the parties to a settlement agreement. A mediator is not a judge. The mediator cannot require the parties to settle and cannot enter a ruling regarding what should happen in the case. Rather, the mediator tries to point out to each party why the party’s demand is unreasonably high; why particular facts appear more beneficial to the other party; why the judge might rule in the other party’s favor on an issue of law; that while a party might get his or her dream result at trial, there is a significant risk that the judge or jury could just as well return a much less favorable result; and that the time and cost of further litigation would be wasteful where the parties could simply settle on a reasonable result at mediation. In many courts, the judge will require the parties to attend at least one mediation, in the hopes of settling the matter and thereby reducing the court’s workload.

Settlement is most effective once the parties have a clear picture of what potential results are likely at trial. Sometimes this will be clear early in the case. Other times, one of the parties may be uncertain whether sufficient evidence will be found to prove particular causes of action. Still other times, there may be issues of law that are unsettled, requiring a ruling from the judge before the parties have clear expectations regarding what will likely result at trial. A bird in the hand is worth two in the bush. Once the parties have a common (if unspoken) understanding regarding the range of possible trial-results, settlement is the safest, fast and most cost-efficient means of resolving a case, and avoiding an uncertain trial-result. Of course, even after extensive discovery and judicial rulings, sometimes the parties will still have utterly different points of view regarding how the facts and law will play out at trial, preventing settlement.

Even where the parties are initially unable to reach a settlement, there are often additional settlement attempts, usually resulting in eventual settlement to avoid the judge or jury from imposing an uncertain result upon the parties.

The Pretrial Phase

The primary objective of the Pretrial Phase is to whittle down the issues in the case to make trial more efficient. For the unfortunate plaintiff, the case may be whittled down so far that there is no claim left for which to try. In such case the plaintiff has lost. If triable issues remain, a trial date will be set. Where a trial date is set, the parties must prepare their witnesses so that they can testify effectively in court. The parties will also organize their evidence in such a way that it will be best understood at trial. This, too, is a time-consuming process.

The Trial Phase

At trial, the attorneys present to the trier of fact (which may be either the judge or a jury depending on how the case was pled) the evidence and witnesses that the attorney believes best support the client’s causes of action. At the same time, the attorney attempts to discredit the evidence and witnesses of the opposing party. The presentation of evidence is strictly controlled by the judge. Mere procedural error can result in complete retrials of the case, fines or even loss of the case. Trials usually take several days if not weeks. Issues that may appear to clients to be unimportant often have outsized impacts on the trial. For example, the makeup of the jury can be determinative of whether they support the plaintiff or defendant. Similarly, how relaxed a witness is when speaking in court can significantly impact how reliable they appear to the trier of fact. Once all the parties have presented all the evidence that the judge will allow them to present a trial, the trier of fact will deliberate to determine what in fact the evidence showed. This may take mere minutes or may require days of deliberation. Once decided, the trier of fact will inform the court, and the judge will then enter a judgement based on the trier of fact’s determinations.

The Appeal Phase

Following any trial, there is usually one party (and sometimes both parties) that is displeased with the result. Consequently, appeals are common. An appeal asks a higher court to look at the evidence in the case and the rulings by the judge to determine if the judgement was incorrect. The period in which to appeal is short. Appeals neither require nor allow witnesses to give additional testimony or new evidence to be presented. Rather, the attorneys will prepare detailed documents to present to the higher court to either support or criticize the lower court's judgment. The higher court will not reverse a judgment with which the court simply disagrees. Rather, the higher court will only reverse the judgment if it finds that it was egregiously incorrect. The result of a successful appeal may be the granting of more-favorable judgment, or may require that the parties try the case in the lower court all over again. Once all appeals are exhausted, there are no further options to alter the court’s judgment.

The Collections Phase

Another area of misconception for many clients is the Collections Phase. Obtaining a final judgment gives the prevailing party a right to the result stated therein. However, it does not usually cause the result to happen. For example, where the judgment awards damages of $1,000,000 to the plaintiff, the judge does not actually take the money from the defendant and provide it to the plaintiff. The court will assist by requiring the losing party to answer questions regarding where his or her assets are located. However, it is the job of the prevailing party to now find the losing party’s assets to cover the judgment amount.

Where the losing party is a large corporation, or has insurance covering the winning party’s claims, collection is usually very straightforward. However, if there are insufficient funds available, or if the losing party successfully hides the money and no evidence of the losing party’s deceit is found, the prevailing party may go unpaid. Even where assets are found, they may not be collectable. For example, a piece of real estate may be homestead property, or may be jointly owned with a spouse, preventing the prevailing party from taking the property; where the losing party is a company, the owner’s asset may not be recoverable; equipment may be owned by the losing party, but an existing lien on it in favor of a third-party may prevent the prevailing party from recovering against the equipment.

Due to privacy laws, it can be difficult to determine the assets of an opposing party prior to judgment. However, the better the client understands the finances of the opposing party, the greater the certainty the client will have that any judgment will be collectable. The uncertainty of collection is yet another reason that even parties with strong legal claims may choose to settle; in doing so, the settlement agreement can be drafted to required receipt of the money prior to terminating the case, and thereby alleviating the risk of non-collection.