What are the general steps of litigation?
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What are the general steps of litigation?
Litigation can be complicated and overwhelming. Our job is to walk you through the process so that you feel comfortable knowing the next steps and what our strategy is for your case.
Broadly, there are several steps in the litigation process.
Cases begin when one party, called the Plaintiff, files a Complaint. The Complaint should provide the basics facts of what happened and specify the legal claims that the Plaintiff is asserting against the other party, who is called the Defendant.
Thereafter, the Defendant has a period of time (twenty-one or thirty-five days, depending on whether the Defendant lives outside of Colorado) to file a response to the Complaint. Typically, this response takes two forms: an Answer (with Counterclaims, if applicable) or a Motion to Dismiss.
A Motion to Dismiss tests the legal sufficiency of the Complaint. At this stage of the proceedings, the Court is required to accept as true all of the factual allegations (but notably not legal conclusions) in the Complaint. In a Motion to Dismiss, generally the Defendant asserts that even if everything in the Complaint is true, the Plaintiff still failed to state a plausible legal claim. However, there are other assertions that may be made in a Motion to Dismiss, such as the Court not having personal jurisdiction over the Defendant or failure to properly serve the Defendant.
As with all motions practice, the Plaintiff will have an opportunity to respond to the Motion to Dismiss, typically within twenty-one days. If necessary, the Defendant can then file a reply in support of the Motion to Dismiss. At that point, the motion is determined to be “ripe” for ruling, which means it is time for the judge to make a decision. There is no general timeline for this ruling—it could take mere days or several months. After the ruling, if some claims are dismissed, the Plaintiff may amend the Complaint to try to fix the errors or allow the case to proceed with the claims that remain. Sometimes, the entire case is dismissed.
An Answer, as opposed to a Motion to Dismiss, responds to each and every factual allegation in the Complaint by admitting or denying those allegations. If applicable, the Defendant can also assert counterclaims against the Plaintiff—that is, the Defendant can counter-sue.
If the Defendant asserts counterclaims, the Plaintiff typically responds to those counterclaims in a separate Answer. Once these pleadings are completed, the case is deemed “at issue” and discovery begins.
Discovery in civil litigation can be a long and sometimes invasive process. Typically, within twenty-eight days of the case being deemed “at issue,” the parties exchange Initial Disclosures. These disclosures consist of all of the documentary evidence in the party’s possession, along with a list of potential witnesses and a damage assessment.
Thereafter, the parties can issue written discovery, thereby compelling the other party to answer certain questions or admit certain statements. The parties can also seek to depose one another or third-party witnesses. A deposition is where a party or witness is questioned, under oath, prior to trial.
Colorado courts often order the parties in civil litigation to attempt mediation to resolve their dispute. Mediation is typically conducted by a neutral third party who is often a former judge.
Mediation provides an excellent opportunity for the parties to assess the strengths and weaknesses of their cases. The mediator will often listen to both sides and provide feedback on the strength and weaknesses of each party’s position in an effort to move the parties towards a settlement.
If the parties do not settle, the case proceeds towards trial.
Dispositive Motions and Pre-Trial Motions
Prior to trial, litigants can attempt to limit the claims asserted in a case, resolve a case entirely, or preclude certain evidence for trial. To do this, the attorneys file motions, including motions for summary judgment or motions in limine.
After these motions are fully briefed, the court will grant or deny the motions. This can help the litigants to get a sense of the strength or weaknesses of their case prior to trial and aid in trial preparation.
Trial (and trial preparation) can be intimidating. A pre-trial conference is usually held where the court and attorneys work together to determine outstanding issues prior to trial, along with a trial schedule.
To prepare for trial, the parties exchange witness and exhibit lists. Because the parties have filed motions, mediated, and exchanged discovery, it is rare that there is a “surprise” at trial or a “gotcha!” moment like you may see on television. However, thorough preparation and attention to detail is key to a smooth trial presentation and can help to convey the critical points in your litigation.
After the parties present their claims and defenses through exhibits and witness testimony, the jury or judge determines liability and damages and issues the ruling.
Although most litigants view the trial as “the end of the road” for litigation, that is not always the case. After the judge or jury issues a verdict, the litigants can file various post-trial motions in an attempt to correct perceived errors in the law or proceedings.
Moreover, the litigants have the opportunity to appeal certain errors or verdicts.
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