By Kathleen G. Moriarty, Peters & Moriarty,
Attorneys and Counselors of Law
Legal Matters is a regular column intended to address general legal concerns. Since every client walks in the door with a different set of circumstances, you should not rely on this column to provide specific legal advice. If you are in need of specific legal advice, please consult with an attorney; he or she will provide advice that is unique and tailored to your legal needs.
Generally speaking, litigation is the process of bringing an action against another person or entity that requires a court’s intervention. Most commonly, the action is commenced at the filing of a summons and complaint (parties are plaintiffs and defendants) or notice of petition and petition (parties are petitioners and respondents). These documents serve to notice opposing parties of the impending action and to outline the legal issues (e.g. breach of contract) and the facts supporting them.
Defendants or respondents then have an opportunity to respond to the complaint or petition — usually by what’s called an “answer,” which may include counterclaims (claims against the plaintiff or petitioner). Sometimes, all it takes to force an agreement is the seriousness of commencing an action.
If not, parties move on to “disclosure” where both sides exchange the evidence that supports their claims. Disclosure (or discovery) includes, but is not limited to, turning over documents (paper correspondences, emails and text messages, contracts, video and voice recordings), equipment or machinery for inspection. Disclosure also encompasses the taking of depositions (also called EBTs, or examinations before trial). Depositions provide an opportunity for each party’s attorney to ask the opposing party a series of questions to elicit additional information.
Disclosure can be an expensive and time consuming process — especially taking depositions. After disclosure, it may be quite clear that one party has a much stronger case than the other or that the dispute is more gray than black and white.
At any state, litigation also encompasses “motion work” — moving, or asking, the court to make a decision or to grant specific relief. For instance, if one or more issue of case is clear cut, one party may move for summary judgment on those issues. The court is asked to decide that there are no questions of fact on those issues — essentially declaring that one party is clearly right. This is an effective way to eliminate unnecessary issues from the table and focus on the heart of the matter.
If a settlement still cannot be reached, the parties may go to trial, which is that much more expensive and time consuming.
At each stage — commencing an action, disclosure, and going to trial — it is recommended that parties assess the costs and benefits of continuing the action versus coming to a settlement. Litigation should always be used as a last resort.