The litigation process begins when a claimant (also known as a plaintiff) files with the Court a statement of facts showing that he is entitled to damages from the person who injured him. The claimant is called the plaintiff and the person who is sued is called the defendant. A statement of facts or allegations is called the complaint.

A defendant is required to file an answer to the complaint admitting or denying the facts alleged by the plaintiff.

Both the plaintiff and the defendant then customarily request from each other any documents related to the claims, damages or defenses. A defendant may also file claims against the original plaintiff. These claims are called counter-claims. The plaintiff and defendant may also serve written questions that the other is required to answer under oath. Each party is allowed a limited number of these questions. Attorneys refer to them as interrogatories.

The usual next step in the litigation process involves the taking of depositions of the parties and potential witnesses. In a deposition questions are asked by the attorney of the witness and a court reporter is present who administers the oath to the witness and takes down verbatim the questions and answers. An additional form of discovery is requests to admit. Either plaintiff or defendant can seek to require the other party to admit or deny specific facts within a thirty day period by setting forth the proposed facts in writing. The other party has a short time (normally 30 days) to respond either that the fact is admitted or the fact is denied. If the court later finds that a party wrongfully denied a fact which was proven at trial a court can order the offending party to pay the reasonable attorneys fees incurred in proving that fact by the person who proved that fact.

By the time this process is complete, all parties and their attorneys should have a very good idea of what the facts are and what each party claims happened and the evidence that each party can muster in support of his/her or its position. Similarly each party should know what defenses are available and the facts that support each along with virtually all the facts about any damages suffered by either party.

At this point either the plaintiff or the defendant or both may file a motion for summary judgment. This motion essentially is a claim by the party filing it that even assuming the facts are as the opposing party claims, the facts are not sufficient to prove one or more of the legal elements which the party is required to prove, or that even if the party can prove the legal elements, the party has not suffered damages which can be recovered for that claim.

If a claim survives summary judgment it will be scheduled for a trial. Approximately 98% of all cases are settled and 2% go to trial. The percentage of cases which go to trial has been decreasing over the last fifteen years. Cases may be settled at any stage of the proceeding including settlements reached prior to the filing of a complaint with the court. There are advantages and disadvantages to settlements. In a settlement the plaintiff rarely gets all he is asking for. On the other hand there is certainty, finality and a bird in the hand. The litigation process is one that can last from one year (at a minimum) up to four years or more because after trial any party who loses is entitled to an appeal to an appellate court.

One of the factors which becomes relevant in settlement discussions is whether a successful plaintiff may recover his or her attorneys fees from the defendant. The normal rule is that he may not. However, in some types of cases such as employment discrimination cases, antitrust and civil RICO cases a successful plaintiff may recover reasonable attorneys fees from a defendant. The most important factor in assessing whether to settle are the risks inherent in litigation itself: there is no way of knowing how a jury will assess the facts and/or damages in any particular case. Braun & Associates, LLC has had the experience of presenting the same set of facts to two focus groups acting as jurors and watching each focus group deliberate separately to a verdict with vastly different results.

Because 98% of all civil cases settle, a client will be relying heavily on his attorney for advice and counsel about whether to settle and, if so, for how much. The experience of the attorney and his or her knowledge of jury verdicts and settlements in that particular field of law in the locality where trial will occur and the clients confidence in the attorney often determine whether or not the case is tried, settled, and whether the settlement is as good as can be achieved for the client.