I was reading an article on the latest TV drama, Bluff City, to portray the civil litigation process. The show makes the typical mistakes that TV often does. Decisions happen quickly. The case is over in an hour. Rulings by the judge are ignored. TV has to “break it to make it” more interesting.
Process is the correct word for civil litigation. I frequently tell clients that litigation is a “marathon not a sprint.” Usain Bolt is the currently record holder running the 100 meter dash is 9.58 seconds. The world record for the marathon is held by Eliud Kipchoge who ran a marathon (26.2 miles) in two hours one minute (2:01:39). In an unofficial race, Kipchoge has run the distance in under two hours.
Bolt is stocky and heavily muscled. He would run well for a while, but his bulk would be his undoing in a marathon. According to news reports, Bolt has never run a race over 200 m. It is unlikely he could run a five-mile which is a feat most high school runners can achieve. Kipchoge is lean and wiry. There is no way he could compete in the first 100m. Kipchoge and most marathon runners aim for pace, not speed.
Civil litigation is slow. It is designed to be slow so as to give every side due process. Due process simply means a process that is fair to both sides. Civil litigation starts with the filing of a complaint. A complaint is a list of allegations that plaintiff says he or she can prove. The plaintiff has to serve (deliver) the defendant with the complaint along with a summons. A summons tells the defendant they must respond within 30 days or the court will act against them. A defendant then files an answer. The answer usually says that the plaintiff cannot prove the allegations in the complaint and asserts defenses why the defendant should have to pay.
Once this stage is over, litigation moves into a phase called “discovery.” Discovery is where both sides get to ask questions and receive documents from the other side. The questions are called “interrogatories.” Interrogatories can vary between being very general to being super specific. Interrogatories generally seek facts relating to the incident in order to understand the nature of either the claim or defenses. The request for documents is called a “request for production.” A request for production is the formal discovery request for documents, pictures, videos, etc. It can include an inspection of property, an examination of a cell phone, etc. Each side gets a specific number of interrogatories they can ask, and the requests for production are usually unlimited. The other side usually has 30 days to respond.
The end of discovery brings another event: mediation. Mediation is a court-ordered attempt to resolve the case through negotiation. An neutral person—usually another lawyer—tries to help the parties reach a settlement through compromise. The process may be mandatory, but the results of the mediation are not. The parties have to agree to settle. If they do not, then the case moves along. Sometimes mediation can occur early in the case if the facts are not really in dispute.
There are also procedural motions can occur any time during the process. Some procedural motions involve whether the plaintiff has adequately alleged a complaint. This usually occurs after a complaint but before an answer is filed. The other most common procedural motion is called a “motion for summary judgment. This motion can be heard anytime, but it is usually heard after discovery is complete. The gist of summary judgment is that the defendant says the plaintiff has not (or cannot) prove their case. A ruling for the defendant ends the case. A ruling for the plaintiff means the case will go to trial unless the case is settled. The hearings for these motions are usually scheduled at least a month in advance.
Different states and/or courts have different procedures for determining how and when to call cases for Court. North Carolina state courts and federal courts assign cases to a specific staff member who manage the case for the court. South Carolina state court cases are managed by the attorneys with occasional input from the county’s Clerk of Court. South Carolina civil cases go on roster and are called for trial in the order they are reached. It can make it frustrating since it is hard to plan for a trial on a specific day.
These times (30 days here, 30 days there) mean that you and your legal team are running a marathon in civil litigation. The key thing, as with a marathon, is setting the pace. Prepare yourself that TV is selling drama, not reality.