Identify the stage of the litigation process that focuses on the strength of the opposing party

If you are planning to sue another person or entity, or if you have been sued, you should learn about the key steps in the legal process. The specific procedures may vary depending on your state, but civil lawsuits follow a certain basic trajectory from the initial complaint until the trial. The party bringing the case is known as the plaintiff, while the party being sued is known as the defendant. You should be aware that most cases end with a settlement before trial, which is a more efficient, less risky option than entrusting the outcome to a judge or jury.

Before you sue, you may want to think about sending a demand letter to the potential defendant. This can help you save the costs of litigation and solve the issue without the stress of a formal dispute. Read more here about how to craft a strong demand letter.

The first step in a lawsuit is filing the complaint and serving it on the defendant. The plaintiff will outline their version of events in the complaint and describe how the defendant’s actions harmed them. They will ask for monetary compensation or another remedy, such as an injunction. The plaintiff will arrange for service of process by an officer of the court, which involves providing the defendant with the complaint and a summons. The summons offers a basic description of the case and informs the defendant of their deadline to respond.

The defendant then will have an opportunity to respond to the complaint with an answer. They must file their answer within the required time period, or the court will enter a default judgment against them. The answer will provide the defendant’s version of events, admitting any statements by the plaintiff that are true and denying all of the plaintiff’s statements that are not true. It also can raise any applicable counterclaims against the plaintiff. Read more here about complaints and answers.

The process of gathering evidence in a lawsuit is known as discovery. This allows each side to get a better understanding of their position and develop strategies for the litigation. It also can promote the settlement process by revealing the strengths and weaknesses of the case. Discovery often involves depositions, which are interviews in which a party or a witness answers questions about the case under oath. It also may involve interrogatories, which are written sets of questions provided by one party to the other party or to someone else with knowledge of the facts in the case.

Other discovery tools include requests for admissions and requests for production. Each party can send requests for admissions to the other party to narrow the issues in the dispute. If the opponent admits that a fact is true or that a document is genuine, these points no longer need to be litigated. Requests for production allow a party to get access to tangible evidence that is relevant to the case. Read more here about the discovery process.

At any point before a case reaches trial, either party or both parties can try to end the case by filing a motion with the court. Most often, the defendant files this type of motion, and the plaintiff opposes it. If the defendant believes that the plaintiff does not have a valid case, they can bring a motion for judgment on the pleadings at the very outset of the case. Similarly, the defendant can bring a motion to dismiss if they identify a procedural problem with the case, such as an issue involving the court’s jurisdiction or the statute of limitations. A motion for summary judgment can be brought later in the process if either party feels that there are no material facts in dispute, and they are entitled to judgment as a matter of law.

Sometimes the losing party in a trial will bring a post-trial motion to correct an apparent error. They might file a motion for a new trial based on a material problem with the proceedings. Or they might file a motion for judgment notwithstanding the verdict if the jury’s verdict was clearly not based on the evidence. However, both types of motions are challenging to win. Read more here about motions before and after trial.

You may have come across many trials in television or literature, but they rarely happen in reality. If the defendant cannot get the case dismissed, the parties usually will settle rather than taking their dispute all the way to trial. Each party has a right to a jury trial in most cases if the plaintiff is seeking monetary compensation, although the parties can agree to waive this right. Jury selection is a complex process that involves asking jurors questions to identify their likely biases. The parties also can exclude a limited number of jurors for reasons other than bias, within the limits provided by the Constitution.

A trial begins with opening statements by each side and proceeds through the presentation of evidence, including witness testimony. Each side can cross-examine the other side’s witnesses, and then the party that called the witness can conduct a re-direct examination. The plaintiff presents their case first, and then the defendant may ask for a directed verdict if they believe that the plaintiff has not made an adequate case. If this motion is denied, the defendant will present their case. Finally, each side will make closing arguments and propose jury instructions to the judge. Once the jury instructions have been determined, the judge will provide them to the jury, which will deliberate and return a verdict. Read more here about how trials unfold.

If the losing party in a trial is unsatisfied with the outcome, they can consider appealing it to a higher court. An appeal usually will need to identify a specific legal error and show how it resulted in the outcome. An appellate court will not reverse a jury’s decision unless there was a reversible error. This means that the outcome would have been different if the error had not occurred. An appellate court usually will not reverse the decision of a judge in a lower court unless they abused their discretion.

A losing party can appeal not only a trial verdict but also any other final judgment that ends the case. If the court granted a defendant’s motion to dismiss or motion for summary judgment, for example, the plaintiff can appeal that ruling. The appeals court would review the record in its entirety in this situation, including the facts as well as the law. Read more here about the appeals process.

Last reviewed October 2021

Pursuing a lawsuit can be costly. Using mediation, two or more people can resolve a dispute informally with the help of a neutral third person, called the mediator, and avoid expensive litigation.

Most mediators have training in conflict resolution, although the extent of a mediator's training and experience can vary considerably—and so can the cost. For instance, hiring a retired judge as a private mediator could cost you a hefty hourly rate. By contrast, a volunteer attorney might be available through a court-sponsored settlement conference program or the local small claims court for free.

The Role of the Mediator

Unlike a judge or an arbitrator, the mediator won't decide the outcome of the case. The mediator's job is to help the disputants resolve the problem through a process that encourages each side to:

• air disputes
• identify the strengths and weaknesses of their case
• understand that accepting less than expected is the hallmark of a fair settlement, and
• agree on a satisfactory solution.

The primary goal is for all parties to work out a solution they can live with and trust. Because the mediator has no authority to impose a decision, nothing will be decided unless both parties agree to it. The process focuses on solving problems in an economical manner—for instance, taking into account the cost of litigation rather than uncovering the truth or imposing legal rules.

That's not to say that the merits of the case aren't factored into the analysis—they are. The mediator will assess the case and highlight the weaknesses of each side, the point being to hit home the risks of faring far worse in front of a judge or jury, and that the penalty or award imposed will be out of the control of the litigants.

Types of Problems Solved With Mediation

Anyone can suggest solving a problem through mediation. Neighbor-to-neighbor disputes or other personal issues can be resolved in a few hours without the need to initiate a lawsuit.

When litigation has commenced, it's common for courts to require some form of informal dispute resolution, such as mediation or arbitration, and for a good reason—it works. Examples of cases ripe for mediation include a:

The length of time it will take to solve the problem will depend on the complexity of the case. Somewhat straightforward cases will resolve in a half day. More complicated cases will require a full day of mediation, with the negotiations continuing after the mediation ends. If the mediation doesn't settle, either side can file a lawsuit or continue pursuing the current case.

Learn about the timeline for a personal injury lawsuit.

Stages of Mediation

Many people think that mediation is an informal process in which a friendly mediator chats with the disputants until they suddenly drop their hostilities and work together for the common good. It doesn't work this way. Mediation is a multi-stage process designed to get results. It is less formal than a trial or arbitration, but there are distinct stages to the mediation process that account for the system's high rate of success.

Most mediations proceed as follows:

Stage 1: Mediator's opening statement. After the disputants are seated at a table, the mediator introduces everyone, explains the goals and rules of the mediation, and encourages each side to work cooperatively toward a settlement.

Stage 2: Disputants' opening statements. Each party is invited to describe the dispute and its consequences, financial and otherwise. The mediator might entertain general ideas about resolution, as well. While one person is speaking, the other is not allowed to interrupt.

Stage 3: Joint discussion. The mediator might encourage the parties to respond directly to the opening statements, depending on the participants' receptivity, in an attempt to further define the issues.

Stage 4: Private caucuses. The private caucus is a chance for each party to meet privately with the mediator. Each side will be placed in a separate room. The mediator will go between the two rooms to discuss the strengths and weaknesses of each position and to exchange offers. The mediator continues the exchange as needed during the time allowed. These private meetings comprise the guts of mediation.

Stage 5: Joint negotiation. After caucuses, the mediator might bring the parties back together to negotiate directly, but this is unusual. The mediator usually doesn't bring the parties back together until a settlement is reached or the time allotted for the mediation ends.

Stage 6: Closure. If the parties reach an agreement, the mediator will likely put its main provisions in writing and ask each side to sign the written summary of the agreement. If the parties didn't reach an agreement, the mediator will help the parties determine whether it would be fruitful to meet again later or continue negotiations by phone.

Find out why you should reduce your settlement to writing after your mediation.

To Learn More

For detailed information that will guide you through the entire mediation process, get Mediate, Don't Litigate: Strategies for Successful Mediation, by Peter Lovenheim (Nolo).