Steps in the Litigation Process

Steps in the Litigation Process-Glenn Duker
02 Jul
2018

First Step: Pleadings

The civil litigation legally begins during the pleadings process. The plaintiff will send the defendant a complaint, which includes a statement of claim or, depending upon the court, a writ and statement of claim. The statement of claim will set out the nature of the dispute and harm caused by the defendant. The defendant then has a short time to respond with an appearance and defense. In the defense, the defendant will state their side of the dispute and admit or deny the alleged claims. The defendant may file a counterclaim if he or she considers that the plaintiff also has a claim (typically a monetary claim) to answer. A counterclaim will state the harm the plaintiff caused the defendant. The pleadings are thus the time for both parties to ask for clarification of allegations.

Second Step: Discovery

Discovery can be the longest step of the litigation process. This is the time for parties to ask each other and third parties for information and evidence that can be used to build their case. Parties have an obligation to discover documents that are relevant to their case – and not just the documents that may assist a party’s case: documents need to be discovered if relevant even if they hurt their own case. This is considered to be in the interests of justice.

Discovery can be in the following formats:

  • Interrogatories
    • Written questions for the other party to answer to clarify the facts of the case that will be used later in the trial.
  • Copies of documents
    • Any documents that may prove a party acted dishonestly, negligent, or in a harmful manner or which may refute such a claim.
  • Requests for admissions
    • Statements sent to a party for them to either admit to or deny the allegations.

During the discovery process, it is the time where parties have the liberty to apply to the court for summary dismissal of a claim against them (when there is no proper case to answer), which is not uncommon. Also, it is a time for parties to seek to amend their statement of claim after discovery.

Discovery starts from when the complaint is filed and will last up until the court date. In other words, there is an ongoing obligation to discover documents relevant to the proceeding if found by a party prior to the trial. There will usually be a set time for standard discovery. Depending upon the court, this will be pursuant to the court rules or otherwise pursuant to orders of the court. Since the courts set the date, parties do not know how much time they will have to conduct the discovery process.

Sometimes evidence is given by way of affidavit. While not part of discovery, this is often a more efficient way of dealing with giving of evidence and thereby tends to reduce the length of the trial. Affidavits are given voluntarily by willing witnesses. The witness can still be cross-examined in court as to the content of the affidavit.

Third Step: Trial

The case has finally reached the courtroom. The trial could be decided by a judge (or magistrate) alone by a jury.  In civil cases, the use of a jury is very rare. If a jury is present, both parties lawyers will conduct voir dire, which is the examination and questioning of jurors to determine if they should be removed from the jury pool.

Both parties will then present their opening statements, followed by the plaintiff presenting their case first, followed by the defense stating their case. The plaintiff will have another chance to rebuttal anything said in the defense’s statement. Anything found in the discovery process will be brought forward, along with any witnesses.

Witnesses will be brought forth to support the claim of either side but can be cross-examined by the other party. The parties will have a chance for closing statements before the jury or judge reach a decision. Once the judgment is reached, the trial is officially over.

Fourth Step: Appeal

If a party is dissatisfied, they can ask a higher court to review the trial. During this review, the appellate court typically does not review the evidence but considers whether there were any issues of law where the trial judge (or magistrate) erred. When the appellate court makes a decision, it will deliver a judgment which will dismiss the appeal claim, set aside the judgment, or order that the trial court conducts another trial. If brought to trial court as a new trial, the lawsuit could take up to another year or more to be reheard.


**This article is for informational purposes only and is not intended to be legal advice. In relation to your individual situation, always seek advice specific to your circumstances from a lawyer.

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