Many clients have not been involved in a litigation case before and are unaware of the number of phases that a litigation case goes through. Accordingly, we want to give you an overview of the litigation process. Typically, the formal litigation process is a time involved and intensive one. However, every case is different and may not follow the phases as listed below.
PHASE 1: Information/Investigation
After you have retained our firm to represent you, we will begin gathering pertinent information regarding the subject matter of your case (hereinafter referred to as "Claims"). We may request documents, photographs, videos, or other information that you have in your possession regarding your Claims. We may contact potential witnesses, physicians, etc., regarding your Claims. We may request your medical records, employment records, and income records, if necessary.
PHASE 2: Demand Letter and/or Pre-Suit Negotiations
Normally, the first step in a litigation case is to prepare a demand letter to the opposing party. The demand letter will set forth your Claims, your damages, and a possible settlement amount before a lawsuit is filed. A demand letter is a good tool to use to attempt to negotiate a settlement of your Claims before proceeding with a lawsuit, and/ or it may be required by Indiana law or some other statute. Attempting to negotiate a settlement prior to filing a lawsuit will save time and the expense of a formal lawsuit.
PHASE 3: Filing a Lawsuit
To initiate a lawsuit, a document called a "Complaint" is filed with the Court having jurisdiction over the matter. The Complaint will contain all of your Claims, supporting law, and the relief you are seeking from the court. In addition to the Complaint, a "Summons" is filed to be served upon the opposing party. A copy of the Complaint and Summons must be served on the opposing party. This can be done by certified mail, Sheriff, or by a private process server. Once the opposing party is served with a copy of the Complaint and Summons, the opposing party has between 20 to 23 days to file a "response" with the court. The response may be:
1) An Appearance of an attorney on behalf of the opposing party and a request for additional time to file an "Answer" to the Complaint. The court will grant this request and will give the opposing party an additional 30 days to file an Answer to the Complaint;
2) An Appearance of an attorney on behalf of the opposing party and an "Answer" to the Complaint;
3) The opposing party may file a "pro se" (not represented by an attorney) Answer to the Complaint; or
4) The opposing party may not respond at all to the Complaint.
In most cases, after the opposing party or the opposing party's attorney files an Answer to the Complaint, the court will schedule a case management conference hearing for the attorneys to meet with the Judge to briefly discuss your Claims and set certain deadlines for the litigation of your case. However, if the opposing party was properly served with the Summons and Complaint and did not respond to the Complaint, your case will not follow the below phases. The process that will be taken will be explained to you if this happens in your case.
PHASE 4: Pre-trial or Discovery Phase
In the pre-trial or discovery phase, our main goal is to substantiate your Claims with hard, substantive evidence. This is accomplished with formal discovery methods. Formal discovery methods consist of the following:
1) Interrogatories: Interrogatories are questions given in a written form that requests answers from the opposing party regarding the Claims asserted in the Complaint. The party answering the Interrogatories swears, under the penalties of perjury, that the answers that they give are true and complete. We will serve Interrogatories upon the opposing party, and the opposing party will most likely serve Interrogatories upon you.
2) Request for Production of Documents: This involves written requests for specific documents from the opposing party (i.e. correspondence, emails, pictures, statements, etc.). The opposing party will most likely serve a Request for Production of Documents upon you too. Any documents, communications and/or things produced are deemed to be a true and accurate copy which may be introduced as evidence at trial.
3) Depositions: After reviewing the written discovery responses, either party may want to schedule depositions. A deposition is one of the methods that attorneys can use to gather further information. Normally, both attorneys and both parties are present for the deposition. The person being deposed (being asked the questions) will be placed under oath and the attorneys will ask questions about the Claims. A court reporter is also present and will be recording the deposition so that a written transcript of the deposition can be provided. Depositions of witnesses, physicians, experts, etc., may also be scheduled. This process will be explained to you in further detail when your case reaches this phase of litigation.
4) Request for Production of Documents to Non-Parties: Written requests for specific documents can be sent to parties not named in the lawsuit (i.e., employers, medical providers, cellphone providers, witnesses, etc.) in order to gather additional information for your Claims. Either party to the case can serve requests upon a nonparty.
PHASE 5: Settlement Negotiations/Mediation
At any time during the litigation process, the parties can discuss settlement of the case. However, the Court will also order the parties to attend mediation. Mediation is an informal way of resolving disputes between the parties. A neutral third party will be appointed to meet with the parties to discuss the case. The mediator will attempt to negotiate a fair and reasonable resolution of the matter with the parties.
PHASE 6: Dispositive Motions
The court may set a dispositive motion deadline in the case. Dispositive motions are motions seeking the court to enter a judgment on the Claims or entirely dispose of all or part of the Claims based upon the evidence without need for further court proceedings. This process will be explained to you in further detail if your case reaches this phase of litigation.
PHASE 7: Trial
Typically 90% of cases settle before trial depending on the type of Claims. However, if settlement negotiations and mediation have failed, the case will be set for trial. Trial involves both sides presenting their evidence to a judge and jury. The jury, after hearing the facts and being instructed on the law, will deliver a verdict or judgment on the Claims. There is no way to determine or guarantee the outcome of a trial, which is why so many cases are resolved before entering this phase.
PHASE 8: Collection
If the jury awards damages on the Claims, the judge will enter it as a judgment against the opposing party. If the opposing party fails to pay the judgment in a reasonable time, we will need to pursue collection on the judgment. This could mean requesting an order from the judge to garnish the opposing party's wages, to seize a bank account, or to foreclose on real or personal property.
IN CONCLUSION
The entire process from the investigation phase to the collection phase can take up to two years or more. There is no definitive answer as to how long it will take for your case to get resolved, what the result will be, or how much the litigation process will cost since every case is different. If at any time you do not understand the process or phase that your case is in, we will be happy to discuss it with you in further detail.
We look forward to working with you in your case.
