Understanding the Litigation Process and How to Reduce Your Risk
by Olivia Squellati
Finding yourself in a dispute can be an overwhelming and stressful experience, especially when you’re suddenly faced with legal action. What does potential litigation mean for you, and how will it impact your life? Gaining a clear understanding of the litigation process can demystify the journey and help alleviate some of your concerns, empowering you to navigate a challenging time with greater confidence.
The Litigation Process
The steps of the litigation process may vary depending upon where the claim is filed and the nature of the case. Generally, the basic process is:
- Petition. First, the plaintiff files a petition with the court stating what the defendant did, or failed to do, that caused this plaintiff harm and the legal grounds for holding that defendant responsible. The petition is then hand-delivered to the defendant.
- Answer. Next, the defendant is given a specified amount of time to respond to the petition. At this stage, the defendant generally may (a) file a motion providing legal grounds as to why the petition should be dismissed or (b) file an answer. An answer provides a response to each of the paragraphs of the petition and can provide defenses to the plaintiff’s claims. At this point, a defendant may also file his or her own claims against the plaintiff, known as a counterclaim.
- Discovery. During discovery, the parties gather relevant information from each other and third parties. The methods of discovery employed depend upon the nature of the case but often include requests to produce documents, to answer questions (called Interrogatories), to admit or deny certain facts, depositions, and subpoenas. The information gathered during discovery allows the parties to better assess the merits of the claims and defenses and form their arguments.
- Motions. Prior to trial, the parties may utilize motions to ask the court to rule or act a certain way. For example, a motion for summary judgment, may dispose of some, or all, of the legal issues without having to go to trial. A motion to compel, however, may just ask the court to order a party to produce requested information which he or she failed to provide.
- Trial. During trial, the parties may be in front of a jury, a judge, or sometimes both. First, the parties present opening statements. Then, the parties present evidence to support their claims and defenses. In doing so, they may call upon witnesses or introduce exhibits as necessary. After all evidence is presented, each party concludes with a closing argument. If it is a jury trial, the court then instructs the jury on the law, and the jury deliberates and reaches a decision. If it is a bench trial, the judge reviews the facts and evidence to come to a decision.
It is in your best interest to seek legal advice and representation when necessary. Litigation is complex and can be stressful, and it can be beneficial to employ the assistance of an attorney who has experience with your type of claim.
Best Practices to Avoid Litigation
To mitigate the risks of litigation, consider the following:
- Analyze past disputes. Consider examining case studies from your industry to learn about the potential risks for litigation and how these disputes were resolved.
- Communicate effectively. Avoid surprises or misunderstandings with clear and effective communication.
- Maintain proper documentation. Maintain accurate and up-to-date records to help avoid litigation. Be sure to protect, and keep copies of, contracts, insurance policies, and other important documents. If you are facing litigation, these records will streamline the document production process.
- Consider alternative dispute resolution. Alternative dispute resolution, such as arbitration or mediation, may be more cost-effective and informal than litigation.
Protecting your interests requires you to be proactive in preventing litigation. Understanding the process, integrating best practices, and seeking legal advice early on will help you to avoid litigation before the situation escalates.
Olivia Squellati is a 2024 summer associate in the litigation practice group at Carmody MacDonald P.C. in St. Louis and a rising second-year student at Saint Louis University School of Law.
This article is for informational purposes only. Nothing herein should be treated as legal advice or as creating an attorney-client relationship. The choice of a lawyer is an important decision and should not be based solely upon advertisements.