There are certain things people hope they never need to understand, one of them being lawsuits. But if you are thinking of filing a lawsuit or one has been filed against you, then you should have an understanding of what a lawsuit is all about — how a lawsuit starts, what steps are involved, how long it takes, and what happens when it is over.
To demonstrate the process, consider the following: Bob is motoring down the road when Mary pulls out of a driveway. Bob cannot avoid her, crashes into her car, and she breaks both legs as a result of the accident. Mary racks up tens of thousands of dollars in medical bills and is unable to work for a period while she recovers. Mary thinks Bob is responsible for the accident and she decides to sue him.
Mary first meets with her lawyer Doug and provides him with all the information she has about the accident and her injuries. Doug and Mary discuss the accident and Mary’s injuries, and Doug determines that Bob may be liable to Mary because of Bob’s negligent driving.
After gathering the information and researching the relevant law, Doug writes a legal document called a Complaint. A Complaint names the parties involved in the lawsuit and briefly states the plaintiff’s claims against the defendant and what the plaintiff wants from the defendant. Here, the Complaint indicates that Mary is suing Bob, sets out the basic facts of the accident and the theories of why Bob is liable to Mary for her injuries, and states that Mary wants to be compensated for her injuries and time off of work. Doug files the Complaint in the Superior Court along with a Summons. The Summons is a document that instructs the defendant of his responsibilities to answer the Complaint. The Superior Court clerk’s office provides a stamped copy of the Complaint and Summons to Doug, who uses a process server to serve the Complaint and Summons on Bob.
Bob does not believe the accident was his fault and thinks that Mary is the one who caused the accident. He goes to see his old tennis buddy, Gary, who is a lawyer. Bob tells Gary about the accident and provides him with all the information he has, including the police report. Gary writes an Answer to the Complaint. The Answer addresses each allegation of the Complaint. Here, Gary writes that Bob denies he is at fault for the accident. Gary also states in Bob’s defense that Mary caused the accident. Gary is required to file the Answer with the court within 20 days after Bob was formally served with the Complaint. If a defendant does not file the Answer within this time, the plaintiff can request that the court enter a Default Judgment — a ruling in the Plaintiff’s favor. The court sends a copy of the Answer to Doug as Mary’s lawyer.
Once the Answer has been filed, the lawsuit begins. First is discovery and disclosures. Discovery is a process where the parties learn the facts of the case and the position that other parties are taking on each issue. Each party is entitled to any information that is “reasonably calculated to lead to the discovery of admissible evidence.” This is a very broad standard that enables each party to request a lot of information that they might not actually be able to use at trial. In Arizona, each party must voluntarily disclose all facts and witnesses that they are aware of, whether helpful or harmful, to the other parties.
Forty days after the Answer is filed, Doug and Gary must exchange “Disclosure Statements” that set forth each side’s story of how the accident happened, what law supports their positions, their list of witnesses, and their exhibits. The parties will exchange copies of the accident reports, medical records, bills, the names of any witnesses to the accident and any other information either side has that is relevant to the case. As the case proceeds and more becomes known, the parties must continue to disclose such information to the other side.
The parties will also conduct depositions. A deposition is a question and answer session between a witness and one side’s lawyer and usually takes place in a conference room at that lawyer’s office. Gary contacts Doug to schedule Mary’s deposition. At the appointed time, Doug and Mary go to Gary’s office where Gary and Bob are waiting on one side of the table with a court reporter sitting at the head of the table. Mary and Doug sit across the table from Gary and Bob. The court reporter asks Mary to swear that her testimony will be the truth and then Gary may begin questioning Mary while the court reporter types a transcript of the questions and answers.
At Mary’s deposition, Gary will ask her everything she remembers about the accident and everything about her injuries, bills, and missed work. Until her deposition, Gary has only heard his client’s side of the story and learned what he could from Doug’s disclosures. This is Gary’s opportunity to find out everything in much greater detail about Mary’s case. For example, he might ask her whether she was in a hurry that day, whether she was texting, or playing with the stereo when she pulled out of her driveway. Mary’s deposition is also Gary’s opportunity to get confirmation from her under oath about certain facts. For example, Gary read in the police report that Mary told the police she could not see well into the road that day because of the sun. He will ask her to confirm that fact during her deposition. Gary will also use the deposition to get an idea of what kind of impression Mary might make to a jury. Doug will do the same with Bob at his deposition. In addition to the depositions of Mary and Bob, many more depositions may be taken. At the option of the lawyers, any potential witnesses could have their depositions taken. The lawyers could also make requests for documents that are believed to exist. For these and other reasons, discovery often takes several months to complete. A year of discovery is not uncommon. After discovery, Doug and Gary will have a better idea of the strengths and weaknesses of their cases and may enter into settlement negotiations or consider filing motions with the Court.
Most cases are resolved without a trial through settlement or through motions for summary judgment. A motion for summary judgment is a legal document that a party files with the court, asking the judge assigned to the case to enter an order granting judgment in that party’s favor. The motion sets forth the facts of the case and the law that supports his position that, under these facts, he is entitled to win the case without a trial. The other side has an opportunity to respond to the motion and will try to establish that there are disputed facts and the case should proceed to trial. Because the judge determines the law and the jury determines the facts, if it is true that there are no disputed facts required to be decided by a jury and the dispute is only a question of law, the judge can determine the law and resolve the case without the need of a trial.
If the case does not settle and is not resolved by a summary judgment motion, the case will go to trial. Typically it takes between 10 and 18 months after the complaint is filed before a lawsuit is ready to go to trail.This time can be longer or shorter, depending on the complexity of the case. The length of the trial will also vary depending on the complexity of the case.
On the first day of trial, the attorneys and the judge will select a jury. Generally, there will be about 20 potential jurors, and the lawyers will take turns striking one juror after another until eight are left. Those individuals will be the jury to decide the case. Next, Doug, as the plaintiff’s lawyer, will make an Opening Statement and will describe the nature of the case and the evidence he will present. Then Gary will make the Opening Statement for Bob. After the Opening Statements, Doug will call witnesses to present all the evidence he has supporting Mary’s version of the case. The witnesses may answer questions or explain relevant documents. Gary will have an opportunity to cross-examine each of Mary’s witnesses and will try to weaken their credibility by pointing out any weaknesses or inconsistencies in their testimony. (The movie My Cousin Vinny is a classic example of this.)
After Doug has finished putting on all the evidence to support Mary’s case, it will be Gary’s turn to present witnesses and evidence. When Gary has finished, each side will make a Closing Argument. Doug goes first, then Gary, then Doug gets the last word because he has the burden of proof. Once they have finished, the judge will then instruct the jury on all the law they will need to deliberate the case, and the jury will recess to the jury room in the courthouse to decide who wins.
In Mary’s case, the jury determines that Bob is liable to Mary for $60,000 in damages. The judge will enter a judgment against Bob for that amount. If Bob cannot pay right away, Mary will record the judgment with the county so she will have a lien on Bob’s property for that amount.
This simplistic overview of a lawsuit is intended to give a basic understanding of what a lawsuit really is, and what takes place for the lawsuit to be ready for trial. Litigation, however, almost never goes according to plan and is full of unexpected twists and turns, and both the plaintiff and the defendant usually experience a good amount of frustration and stress. Having a basic understanding of the lifecycle of a lawsuit will, hopefully, help you keep your sanity during the long and arduous process!
