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Do I Have to Go to Court?

Posted by Stephanie Sherman | Nov 26, 2021 | 1 Comment

Do I Have to Go to Court?  

November 26, 2021

Many people decide to forgo justice because they don't want to "go to court."  They are afraid, or don't want the stress.  I get that but, if you have an important case, don't let that fear keep you from justice. The reality is that many cases settle long before trial so you may not ever go to court or get anywhere close to it.  And, even if your case doesn't settle, your attorney will make sure you are well prepared and ready for whatever you may face in trial.  I spent a lot of time preparing my clients and teaching them the skills they need to be a good witness.  The fear is always worse than the reality. In fact, many of my clients feel a big sense of relief after we get rolling and they better understand the process.

Phases of a Civil Case

The life of a legal civil case can be broken into discreet phases.  

Pre-Litigation

First, there is a pre-litigation phase where the attorney evaluates the case, investigates, and gathers all evidence, records, and witness statements.  This is also the attorney's planning phase where she must decide what your case is worth and where your case should be filed. Where your case is filed, or venue, is a critical decision and will affect the success and outcome of your case. 

During the pre-litigation phase, your attorney may also decide you do not have a viable case, in which case the attorney will send you a notice letter declining your case.  If you disagree with the attorney's opinion, you should immediately seek a second opinion before the statute of limitations expires. 

During the pre-litigation phase, the attorney makes a time-limited demand on the other side.  If your case does not settle during pre-litigation, the attorney will write the petition or complaint and file it with the court. Your case must be filed by the applicable statute of limitations.  If not, the case will be time-barred.  

When you case is filed, you are now in litigation, and your case is public record.  

If your attorney finds that your claim is dictated by an arbitration agreement, the attorney will discuss the impact and whether the arbitration clause is effective.  An arbitration clause says your case cannot be filed in court, and must instead be decided in a proceeding known as "arbitration," which does not involve a jury.  An arbitration proceeding costs a lot of money because the arbitrator overseeing the case are former lawyers or judges that get paid by the hour, which can be $400 - $1000 an hour.  Companies like Uber and others put arbitration clauses in your service agreement to deter you from filing a claim against them due to the expense.  Arbitration clauses are not consumer friendly.  Lawyers may not take your case if there is an arbitration clause. 

The length of the pre-litigation phase depends on the attorney.  In my firm, I try to complete this phase within 90 days.  Delays are usually related to obtaining public or medical records from third parties.  

Litigation

During the litigation phase, the other side, known as the defendant, answers the petition or complaint within 20-30 days of being served.  The defendant may file motions to dismiss the case, or other early litigation motions such as a motion to transfer venue to another court or judge.  After the early motions are resolved, a scheduling order is prepared and signed by the judge that dictates the schedule of the case and trial date.  This is also when the parties start the discovery phase.  The entry of a scheduling order is one of the most important events in my practice.  Without a schedule or trial date, the defendant will have little incentive to work on resolving the case.  After the defendant answers, I immediately ask for a scheduling order.

Discovery

During the discovery phase, both sides exchange written answers, information, documents, and evidence.  You will have to assist the attorney with interrogatory responses, which are sworn statements by you about what happened.  After the exchange of written discovery, you will likely have to give a deposition.  A deposition is when you sit for questioning by the other side's attorney, in front of a court reporter who records the questions and answers into a transcript.  The deposition may be videotaped.  Your attorney will prepare you for the deposition, and will also be with you during the questioning. The attorney cannot assist you, but can make objections and request breaks.  The deposition is not "court."  The deposition occurs in an office selected by the attorneys.  The defendant and other witnesses may also give depositions depending on the complexity of the case and what is necessary to prove or dispute the claims.  

After the party and witness depositions, the party's experts may also submit reports and depositions, depending on the complexity of the case. Many traffic accident cases do not have expert reports and depositions.  

The discovery phase can take between four months and two years, depending on the case, and the scheduling order. 

Mediation

Mediation means the parties get together, in front of a mediator, to see if they can resolve the case by agreement.  Some courts require mediation, some do not.  Some parties voluntarily agree to do mediation.  

Pre-Trial Motions

After the discovery, the defendant may file a motion for summary judgment which is its attempt to dismiss the case for lack of credible evidence to prove the claims.  A hearing will be held and the judge will issue an order granting or denying the motion.  You do not have to attend the pre-trial hearings or any other hearings unless directed by the Court.  If the motion for summary judgment s granted, your case is dismissed.  Dismissal by summary judgment can be appealed.   You may have to hire a different attorney for the appeal phase.  The appeal process requires a technical lawyer skilled at legal research and writing. An appeal can take a year or more.  

The parties may also file motions to exclude expert testimony during this time period after discovery but before trial.  That is where a party challenges the qualifications of an expert.  It can be devastating to a case if you lose an expert.  Your lawyer may need to ask for more time or a trial delay to get a replacement, if that is even considered by the judge.  

Trial

If your case is not settled after all of the discovery is done and pre-trial motions are heard, your case is headed to trial. Trial is court with a judge and jury.  Trial can take anywhere from 1/2 a day - many months.  You will have to be present for trial unless there is a medical reason why you cannot.  A case can still settle on the morning of trial, during trial, or during jury deliberations.    

Settlement, Dismissal, or Jury Verdict

Your case will ultimately be resolved by:  1). mutual settlement among the parties, 2). a jury verdict, or 3). dismissal by summary judgment (before trial) or directed verdict (after trial). 

Conclusion

The answer to your question, "will I have to go to court," is: maybe.  But if you do go to court, your attorney will make sure you are well prepared.If your case does go to "court," it will not be until at least 1-3 years depending on the court, the scheduling order, and issues involved.   

About the Author

Stephanie Sherman

On June 1, 2022, I joined the nationwide award-winning law firm, Baum Hedlund.  I am grateful to join this elite group of trailblazers that is so deeply committed to taking on tough cases and fighting for the underdog. You can still reach me here, via my bio page or at 800-827-0087. Stephani...

Comments

Joseph ReedReply

Posted Dec 16, 2021 at 10:54:46

Stephanie Sherman detailing of the phases of a civil case was very informative to me

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