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What is the Litigation Process?


Hello, my name is Spencer Pittman, and I am one of the litigators at the law firm of Winters & King, which is located in Tulsa, Oklahoma.  Winters & King has represents clients across the nation in the courtroom prosecuting and defending our clients’ legal rights for over 30 years.  This Podcast episode is on the litigation process, including what litigation entails, what to do if you have been sued, and how the attorneys at Winters & King can assist you to protect or defend your rights in the courtroom. 

Suing someone or being sued are colloquial for litigating.  Litigation is the process of resolving formal legal disputes through the court system, which can be in state court or federal court. It is a legal process that involves one party, called the plaintiff, filing a lawsuit against another party, called the defendant, to seek a legal remedy.  The legal remedies are most often monetary damages or equitable remedies, such as injunctions.  The plaintiff bears the burden to demonstrate to the court that the defendant has violated a legal right, and it is the defendant’s responsibility to properly respond to the allegations and present a defense to the allegations by the plaintiff.

Initiating a lawsuit can be a complex process that involves identifying claims, strategizing on the methods or process to start the litigation process, and identifying the culpable parties.  You must determine the appropriate court to file the lawsuit based on the type of case and the geographic location. There are different courts that handle different types of cases, such as small claims court, district court in a state context, or federal court. An experienced attorney, such as the ones in Winters & King, can help you determine which court to file the complaint in. The next step in the process is to write a legal document that outlines the claims and allegations against the defendant, which is often called a petition or a complaint. The petition or complaint states the legal basis for the claims, the specific facts supporting those claims, and the relief or damages sought. Once the petition or complaint are filed, the document must be served on the defendant.

If you get sued, it is important to take the situation seriously and take appropriate action, including seeking immediate legal advice preferably from an attorney who specializes in the area of law relevant to your case.  A lawyer can help you understand the claims against you and the potential consequences, and provide guidance on your options for responding to the petition or complaint.  It is very important that if you get served with a lawsuit to remember the day you were served because once you receive a lawsuit, you have a limited amount of time to respond to the allegations, usually around 20 days. Failing to respond in time can result in a default judgment being entered against you, which means the plaintiff wins automatically and all of the allegations in the petition or complaint are taken as true. A defendant may also have legal remedies it can seek against the plaintiff, which are called counterclaims, or claims against non-parties in the lawsuits, which are called third-party claims.

Once the lawsuit has begun, the parties can start in the discovery process to determine the evidence that supports or refutes claims or defenses.  Discovery is a pre-trial stage in litigation where the parties to a lawsuit request, gather, and exchange information and evidence related to the case. The purpose of discovery is to allow each party to learn about the facts and evidence that the other party has, to prepare their case for trial, and to possibly encourage settlement negotiations.  Discovery in litigation often involves multiple mechanisms to obtain information, such as depositions and written discovery.  Depositions are oral examinations conducted under oath where one party’s attorney questions the other party or witnesses. The questions and answers are transcribed by a court reporter. The written discovery includes interrogatories, or written questions that one party sends to the other party to be answered under oath, requests for documents where one party requests the other party to produce tangible items related to the case, such as contracts, emails, or financial records, or requests for admission where one party asks the other party to admit or deny certain facts or allegations related to the case.

During the litigation process, the parties may attend court hearings to provide status updates to the assigned judge, ask for the court to intervene if the discovery process is delayed or hindered by a particular party, or to set deadlines for litigation milestones, such as the exchange of lists of witnesses or exhibits to be used at trial.  Courts more frequently are requiring parties to also attempt alternative dispute resolution prior to trial.  Alternative dispute resolution for litigation is often through formal mediation, which is a process that encourages the facilitation of settlement of a case through a neutral and impartial private mediator.  

The other stage of litigation is called motion practice.  This includes filing pre-trial motions with the Court at various times throughout the litigation process, including before a formal answer to the petition or complaint is filed up to and after trial has concluded.  For instance, motions can include a motion to dismiss because the petition or complaint is defective or insufficient in some form, or a motion for new a trial if one party believes they are entitled to another trial in the interests of justice and that the completed trial to be vacated.

Litigation can be complex and time-consuming, and the outcome of a lawsuit is never guaranteed. Litigation can be costly, and legal fees and expenses can quickly add up, especially in complex cases. In some particular circumstances, attorneys fees can be reimbursed to the prevailing party, but that, too, is also not guaranteed in the litigation process.  If you are considering litigation or have been sued, it is important to seek the advice of an experienced attorney, such as the litigators at Winters & King, who can guide you through the process and help you achieve the best possible outcome.

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