The timing of a lawsuit is difficult to predict. It depends on many things, including actions the Defendant takes, court schedules, and decisions the Plaintiff makes. In a personal injury lawsuit, the length of time recovery or medical treatment takes will change the length of time that a lawsuit takes. A lawsuit can take up to two years or longer to settle or go to trial.
While lawsuits can take different lengths of time, most lawsuits go through the same basic steps, although not always in the same order. Some lawsuits skip some steps, and some steps are repeated many times over.
The steps listed here are the main steps that occur in a lawsuit. They will give you a general idea of what to expect.
1. Gathering the Facts
With our client’s help, we gather all the available facts concerning the claim, including interviewing and taking statements from witnesses. We gather documents that are relevant to the lawsuit that our client might have or we order the documents from third parties such as doctors. We sometimes hire investigators or experts to help us, so this step can involve expenses. This gathering of facts helps us to assess what course of action is best to take in our client’s case and what award or expense might be involved in the lawsuit.
2. Starting the Lawsuit
When acting for the Plaintiff in a lawsuit, we begin the lawsuit by preparing the necessary court documents and filing them in court. This means the court date-stamps all copies of the documents, keeping one copy for their official record. We then deliver filed copies to the Defendant’s lawyers. This step also involves expenses such as court filing fees and fees for serving defendants with the documents.
If our client is the Defendant, our client would have one of these documents served on them if an action is commenced against them. In that case, we would prepare the necessary documents to respond to the lawsuit on behalf of our client.
Once a lawsuit is commenced, strict timelines apply at the various stages of the lawsuit. However, while some lawsuits may progress and resolve quickly, others take much more time.
3. Interim Applications
After a lawsuit is commenced, but before trial, the Plaintiff’s or the Defendant’s lawyers sometimes need to ask the court to decide certain things. Going to court to ask for an order is called an interim application. These interim applications are usually about how the lawsuit should be handled. For example, if we are representing the Plaintiff, we might ask the court to order that the Defendant show us a particular letter or document that the Defendant would rather not let us see. Likewise, the Defendant might make and application to see clinical records or a document that we may have refused to disclose to them. These applications involve expenses like court filing fees. In some lawsuits no applications are required.
4. Examination for Discovery
After gathering the facts, either the Plaintiff’s or the Defendant’s lawyers arrange an examination for discovery. If we represent the Plaintiff, at the examination for discovery of the Defendant we question the Defendant under oath about the accident. We would also ask the Defendant to show us what relevant documents the Defendant has, and to tell us about all relevant documents he or she has ever owned or had access to. If the Plaintiff is examined, the Plaintiff’s lawyer gives the Defendant copies of the documents related to the lawsuit, and the Plaintiff describes all relevant documents he or she once had, or had access to. In some lawsuits it may not be necessary to examine the Plaintiff or Defendant. There are costs for hiring a court reporter and a location for the examination for discovery.
5. Review of the Law
Once we have a good idea of all the facts, we review the law. We then give our client our legal opinion about what the likely outcome of a trial would be, and how much money our client can expect to receive or pay in a judgement or settlement. We give advice about whether we think offering to settle the lawsuit is a prudent course of action and what a reasonable settlement would be or if our client should proceed to trial rather than settling. We would also advise what process might be best for resolving the dispute. Several processes can be utilized for resolving lawsuits such as negotiation, mediation, arbitration, and trial. All of these processes involve expense.
6. Negotiation and Settlement
When it is appropriate, we talk with the other party’s lawyers to see if a settlement is possible. A settlement is an agreement between the parties to a lawsuit, which sets out how they will resolve the claim. If the claim is settled, it does not go to trial. Settlement tends to be the best option in most cases, as it will lead to less legal costs, stress, and delay. Sometimes though, settlement is not in our client’s best interest and we will then advise them to proceed to trial. Several processes can be utilized to reach settlements. Your lawyer may discuss options and expenses involved.
7. Preparation for Trial
If it proves necessary to proceed to trial, we prepare the case for trial, including getting all the necessary documents together, arranging for witnesses and expert witnesses to attend, and preparing any legal opinions.
If settlement is not reached by the date scheduled for trial, we act for our client at the trial. This is an extremely expensive step, especially if experts are required to attend and give opinion evidence at trial. Court fees are also involved at this step. When the judge has decided the case, which could be a few days, weeks, or months after the trial, we prepare the court order for the judge to sign, or approve the judgement if drafted by the other party’s lawyer, to make sure it is correct.
9. Completing the Claim
After judgement we work to complete the claim. This includes giving our client money from a settlement or judgment, after we have deducted our fees and expenses, or if our client is required to pay a judgement and legal costs, we help our client arrange this with the other party’s lawyer.
New steps such as enforcing or appealing a court judgment are matters for which a new agreement with your lawyer is usually required. If you have retained a lawyer to represent you with a contingent fee arrangement, these new steps would not be included in that fee and the lawyer’s hourly rate would usually apply. To enforce a judgment means to start proceedings to force the Defendant to actually pay what he or she has been ordered to pay. To appeal a judgment means to start work to get a higher court to change the original court’s judgment.
Your lawyer will work with you at each of the steps in your lawsuit to provide you with advice and explain to you what your best course of action is at each stage of the lawsuit. If you ever have questions about your lawsuit please ask your lawyer.
We look forward to working with you to best resolve your legal situation.
Adapted from the Law Society of British Columbia, November 2002, with additions by Velletta & Company.