Clients often do not have a sense of what are the different stages in the litigation process. This summary below discusses the typical process for a commercial litigation in federal court, although cases definitely differ and some cases take less time, while others may last longer. Below are standard procedural points and a general timeline for a case lasting a little over a year (which is often a target for courts to complete cases). That being said, courts are overburdened with commercial disputes (as well as criminal cases), and in certain courts, cases may move slower.
Month 1 – Preparation and Filing of the Complaint
In order to begin the case, you will need to work with your attorneys to prepare a complaint. This a formal document setting forth your accusations against the defendants. This is a very important document and it takes time to prepare it. We have written separately on this topic in another piece. See https://benaurlaw.com/importance-of-a-strong-complaint-in-civil-litigation/
Usually, we anticipate completing the complaint within the first month of work. Court filing fees for filing the complaint are about $400 in federal court.
Month 2 – Service on Defendants and Anticipated Response
Once the complaint is filed with the court, it is a public document. It has to be formally served on the defendants, which is usually done be hiring a professional process server. Costs of service are typically about $100 per service attempt.
Defendants can answer in one of two ways. Either they move to dismiss the complaint, based usually on some procedural deficiency (e.g. lack of proper service or jurisdiction) or they file an answer. In the answer, in addition to denying the allegations and asserting defenses, the defendants can also file counterclaims. If they file counterclaims, you can then file an answer with defenses. The Complaint, Answer, Counterclaims are referred to as the Initial Pleadings. The process can take longer than 3 months, but typically is completed within four months from the initial filing date.
If the defendants fail to answer timely, the plaintiff can move for a default judgment. If the client does obtain a default judgment, then he or she could proceed to the post-judgment enforcement stage discussed below.
Month 3 – Rule 26 Conference and Discovery Scheduling Order
At the beginning of the case and once the Initial Pleadings are done, the federal court requires certain initial disclosures and holds an initial conference. Preparation of these disclosures takes some time (e.g. have to identify witnesses and give a quantification of damages). At the conference, or shortly thereafter, typically, upon the recommendation of the parties, the Court enters a scheduling order for the case, setting forth a discovery schedule. Some judges also may order the parties to participate in non-binding mediation to try to settle their case. Indeed, settlement of the case can occur at any time during the litigation process.
Months 4-8 Discovery
- Fact Discovery
There are two main types of fact discovery: depositions and document productions. Sometimes, litigants can also require written answers to questions, called interrogatories. The amount of depositions depends on the complexity of the case. Same with the amount of documents requested and produced (cost of court reporter is about $1K per day (maybe a bit less) and same cost for the deposition transcripts usually).
In certain types of cases, there may be a need for electronic discovery (e.g. production of emails) and sometimes the court may require the parties to hire an independent e-discovery vendor for this purpose. The costs can range depending on the size of the case. Some e-discovery vendors and document productions involving e-discovery are very expensive (e.g. involving millions of pages and metadata); in many cases of simpler nature, there may be no need for e-discovery. You can try to argue to the court that no e-discovery is required.
- Expert Discovery (maybe)
In certain cases, it may be necessary to hire an independent expert on a particular matter (i.e. forensic accountants, engineering experts, other types of experts). It is advisable to anticipate whether experts are needed at the beginning of the case, as the cost of the expert should be taken into account when calculating the budget.
Months 8-10 Summary Judgment
This is a stage where the court can rule on motions for judgment based on undisputed evidence. If there is some material issue of fact (not law) in dispute, then the court has to send the case to the fact-finder to determine it at a trial with live testimony. The classic example of the disputed material issue of fact is one given in an automobile crash case, where one witness says the light was red and the other says it was green. Here, the fact-finder (judge or jury) would have to determine the credibility of the witnesses at a live trial.
Even if it sounds straightforward, the summary judgment motion briefing process is often extensive work and requires presentation of the evidence gathered in discovery (i.e. material supporting evidence, documents and deposition testimony). The complexity of such motion depends on the case itself; in a simple promissory note case where the only issue is whether it was paid, preparation and filing of such a motion may be simple. But in a complex fiduciary duty case, there may be a need for extensive evidence presentation through affidavits and supporting documentary evidence, and the process may be much more time consuming.
Months 12-14 Trial
The length of the trial depends on the case (it could be one day or weeks). All the parties involved would testify, namely Plaintiff, Defendant(s), and any other material witnesses. At the end of the trial – the fact finder – which can be judge or jury, will decide the case. The exact date of the trial (i.e. whether it is nine months or fourteen months from the initial case filing date is determined by the Court). Typically, before a trial date is set, judges tend to try to encourage litigants to settle their disputes and hold a settlement conference.
Post-Judgment Enforcement Proceedings
Ultimately, the goal is to obtain a judgment against defendants. Once it is entered by the Court, you can pursue post-judgment enforcement procedures (subpoenas, attachment proceedings, attempts to levy on bank accounts, etc) to try to attach his and the company’s assets.
Parties may pursue appeals of the trial court’s judgment based on arguments that the trial somehow violated their rights or was contrary to the law. This is a separate process that can also take months to complete.