What do I need to know if I’m being sued or want to sue someone?
If you’ve received notice that you have been or are about to be sued, or you are considering filing a lawsuit against someone else, here’s some basic guidance on first steps and what to expect.
- Reach out to a lawyer. Unless it is a small claims lawsuit (where lawyers are not involved or present), chances are you need a lawyer to handle a lawsuit or a dispute that has escalated to a lawsuit in order to have a successful outcome.
- Gather facts. Make sure you have all relevant documents (for example any contracts or communications such as emails about the issue or with the opposing party) organized. A clear timeline is very helpful.
- Don’t delete or destroy anything. You have an obligation to preserve any evidence once you have notice of a potential lawsuit.
- Limit your communications about the issue to your lawyer. Any communications (oral or written) about the underlying matter or the lawsuit may be discoverable by the other party, other than with your lawyer.
Civil lawsuits arise out of disputes between people, businesses, or other entities, regarding the legal duties and responsibilities they owe one another. They are distinct from criminal cases, where a governmental authority prosecutes a suspected crime.
Civil lawsuits result in a court order that requires one person to pay another person money, stop interfering with another person’s rights, or do what they are legally obligated to do. In some situations, a civil lawsuit may result in one person gaining or losing rights.
Civil lawsuits generally proceed through three main phases: pre-trial, trial, post-trial, and possibly an appeal. However, parties can halt this process by voluntarily settling at any time. Most cases settle before reaching trial. Arbitration is sometimes another alternative to a trial.
The Pre-Trial Process
In the pre-trial phase, a person with a legal issue will meet with their attorney to discuss their case. The lawyer will do research and advise the client whether a lawsuit is advisable. In some cases, a resolution can be reached without filing a lawsuit. If a lawsuit is filed, then the other side is notified and has an opportunity to respond. The other party can deny the lawsuit’s allegations and file claims of their own in this response.
Next, discovery begins. This is the process where both sides exchange information about the case. It may include written discovery, oral discovery and physical or mental examinations. For written discovery, the parties’ lawyers send each other requests asking the other side to answer questions (interrogatories), admit something (requests for admission) or produce documents (requests for production).
In oral discovery, the parties can take depositions of anyone who might have information relevant to the case. A deposition is similar to a trial in that the testimony of a witness is taken under oath and a court reporter records the questions and answers. Unlike a trial, there is no judge present at a deposition. The attorneys ask questions of the witness, and the witness answers. This testimony may be used at trial. Lawyers can object to questions, but because there is no judge present, the witness usually still has to answer the questions. Finally, physical or mental examinations are often used in cases where a party’s physical or mental condition is at issue in the case.
Going to Trial
During trial, each party has an opportunity to introduce evidence, including witness testimony, documents, photographs and recordings. The trial is presided over by a judge, who makes sure that both sides follow the court’s rules and procedures. The plaintiff presents evidence first, followed by the defendant. The plaintiff has the burden to prove the case by the preponderance of the evidence, which means that it is more likely than not that the plaintiff’s claims are true. Once all of the relevant evidence has been introduced, a verdict is issued, either from a judge or a jury. Then the final phase of civil litigation can begin: post-trial.
Post-Trial Option: Appeal
In the post-trial phase, the parties can ask the court to enforce an order or appeal a verdict that they believe was erroneous. An appeal can be filed if either side (typically the losing party) believes that the judge made a legal mistake or the outcome was incorrect. Except under unusual circumstances, the appellate court will not review factual evidence or override a jury's findings of fact. A court of appeals can dismiss the appeal or hear it. If the appellate court hears the appeal, the court can affirm the judgment, reverse it, or send it back to the lower court (remand it) with specific instructions to correct legal errors.
How can I resolve a claim without litigation?
Alternatives to Litigation
Most civil disputes are resolved without filing a lawsuit, and most civil lawsuits are resolved without a trial. Alternative Dispute Resolution (ADR) describes various ways in which a neutral person helps parties resolve their conflict without a trial. ADR is designed to take place as early as possible in the life of a case. Not only is it typically faster, it can be cheaper (although not always) and less stressful than going to court, and lets people resolve their disputes in a more private environment.
Settlement. Settlement can be discussed by any party at any time during litigation and is often a cost-effective alternative to trial. Usually the court does not require the parties to discuss or attempt settlement, but most courts have procedures by which they encourage parties to engage in settlement discussions or provide parties with assistance in settlement.
Mediation. The parties may be able to negotiate a settlement without outside help, but it is common to involve a neutral third party, known as a "mediator." Mediators are individuals trained in negotiations who bring opposing parties together and attempt to work out a mutually acceptable resolution. This approach can preserve, and possibly repair, relationships between parties that may need to work together following the dispute. Mediation may be particularly useful when parties have a relationship they want to preserve or when emotions are getting in the way of resolution.
The parties select the mediator, who meets privately with each party to discuss the strengths and weaknesses of each side's case. The mediator helps the parties identify the risks of the case and encourages them to consider how those risks can affect their goals. The mediator does not decide the dispute but helps the parties communicate so they can try to settle the dispute themselves, and does not have the power to force the parties to agree on a settlement.
This can be chosen as the first step in resolving a dispute, and the parties can set timelines to limit the amount of time spent in a futile mediation. If the dispute is not resolved within those time periods, a party can decide to move to arbitration (or the courts).
Arbitration. In arbitration, a neutral person called an "arbitrator" hears arguments and evidence from each side and then decides the outcome of the dispute. Arbitration is less formal than a trial, and the rules of evidence are often relaxed. Arbitration may be either "binding" or "non-binding." Binding arbitration means that the parties waive their right to a trial and agree to accept the arbitrator's decision as final. Generally, there is no right to appeal an arbitrator's decision. Non-binding arbitration means that the parties are free to request a trial if they do not accept the arbitrator's decision. Arbitration is best for cases where the parties want another person to decide the outcome of their dispute for them but would like to avoid the formality, time, and expense of a trial. It may also be appropriate for complex matters where the parties want a decision-maker who has training or experience in the subject matter of the dispute.