Step 1: LITIGATION PREPARATION
If you are thinking about filing a lawsuit, or believe that a lawsuit may be filed against you or your business, the first thing you should do is speak to an attorney and start gathering important documents into one place. An attorney can advise you on steps that can be taken to minimize your exposure as well as the importance of preserving evidentiary documents. An attorney can also assess the situation to see if the dispute can be resolved before litigation commences through negotiation or demand letters.
Step 2: PLEADING STAGE
Initial documents that are filed with the court are called “pleadings” and they set out the backbone of the plaintiff’s case and defendant’s defenses and counterclaims. The complaint is filed by the plaintiff. Along with the complaint, the plaintiff fills out a court form called the Case Information Statement, which categorizes what kind of case it is and gives background information on the parties and their attorneys. The defendant then files an “Answer,” which replies to each line of the plaintiff’s complaint, sets forth affirmative defenses, and sets forth the defendant’s counterclaims.
If the defendant believes the plaintiff’s claim lacks merit, the defendant can, instead of filing an answer, file a motion to dismiss the complaint. The motion to dismiss the complaint argues that even if you accept all the plaintiff’s assertions as true, the plaintiff has not set forth a valid cause of action.
Step 3: DISCOVERY
Discovery is the longest, and sometimes the most expensive, part of litigation. In discovery, the parties exchange information about the case and begin to evaluate how strong the case and defenses are and what evidence will be presented at trial. There are several different types of discovery that are engaged in in almost every case. Those are:
INTERROGATORIES: Interrogatories are questions that you ask the other party and the other party asks you.
DOCUMENT DEMANDS: Document demands are a list of documents that you want the other party to produce for your inspection.
DEPOSITIONS: Depositions are when the parties sit down and are asked questions by the other attorneys on the case. Depending on the complexity of the case, a deposition can run anywhere from an hour or less to multiple days.
How long parties have to conduct and complete discovery depends on the complexity of the case. Some courts do not have all the discovery steps. For example, cases of lesser value in the Special Civil Part do not have depositions.
Step 4: ALTERNATIVE DISPUTE RESOLUTION
Alternative dispute resolution is required in many cases. The court may require non-binding arbitration or mediation. An arbitration is similar to a hearing, where each side presents a case to an arbitrator who then rules. Arbitrations are unlike trials because the rules of evidence do not apply and they are much more relaxed.
Mediation is where someone trained in helping parties resolve disputes sits down with the parties and their attorneys to flesh out the important issues in the case and try to find ways to resolve them.
Many cases are resolved at this stage.
Step 5: PRETRIAL & TRIAL
If alternative dispute resolution fails or is not pursued, then the parties move into the pretrial and trial phase of litigation. During pretrial, attorneys will prepare dispositive motions for summary judgment, if it is appropriate for the case. In summary judgment motions, the attorneys argue that there are no material disputed facts and that given all the non-disputed facts there is no way that a jury could find in favor of the opposition.
If you do not move for summary judgment or summary judgment is denied, then the next phase is trial. At this stage of the litigation process, your attorney is determining what evidence to enter and how to get it in, what witnesses to call and what to ask them, and what to ask witnesses called by your adversary. Trials can last anywhere from a few hours to several months, but most trials will not be more than a few weeks.
Trial preparation is an arduous and time consuming process. It is usually the most costly phase of litigation.
Step 6: APPEAL
Either party can appeal a judgment, but they must do so within strict time constraints soon after the judgment is entered. The appeal process is much more limited than the trial process. There is little to no motion practice. It is entirely briefing and, sometimes, oral argument. In NJ there are two levels of appeal from the Superior Court, the appellate level and the NJ Supreme Court.