People calling in for consultations often want to know what to expect when litigation is threatened or involved.
Common questions are:
- I've been served with a summons and complaint. What do I do?
- I received a legal demand letter. What do I do?
- How do I sue my neighbor?
- How do I sue my contractor?
- How do I sue a business?
- How long is a typical lawsuit?
- How much will this lawsuit cost me?
- How do I respond to an arbitration demand?
For a detailed answer to these questions, you'll want to read our popular and detailed blog post on the stages of a typical lawsuit in Colorado.
1. Demand Letter or Pre-litigation Dispute
Typically, you're going to either send or receive a notice of claim or demand letter of some sort prior to litigation commencing. Such letters span multiple pages with legal analysis, essentially stating: "I am going to sue you for XYZ reasons if you don't pay XYZ damages you caused to me." Sometimes this letter is required as a condition precedent to litigation -- a construction defect notice of claim letter, for example -- or is just recommended as a way to gauge whether the parties are capable of settling differences before spending thousands of dollars on the lawsuit.
People often make the mistake of ignoring these letters. It can be a missed opportunity at an early resolution of the dispute. We can help you draft a demand, or, if you receive a demand, we can help you decide how to respond without hurting your defense.
2. I Was Served with a Summons and Complaint! The Pleadings Stage.
Oh well. The issue was too contentious to resolve without a lawsuit. This is usually quite unfortunate because lawsuits typically don't result in a huge win for either side unless you have great facts or you're a plaintiff in a solid personal injury case with an insurance carrier involved. But, as it stands, you were served a summons and complaint from a process server at your house or place of employment and you need to respond. Failure to respond could severely damage your defense. Like a broken record, I repeat: Do Not DIY This!!! Get an attorney.
Similarly, if you want to file a lawsuit, by all means research the process, but we recommend you hire an attorney so you do not 1) sue in the wrong court, 2) sue for the wrong amount of damages, 3) write a frivolous/baseless complaint, 4) serve process incorrectly, 5) leave out potential causes of action, 6) fail to strategize how the defendant will respond.
No matter which side of the coin you find yourself on, you need to investigate and document the disputed facts, create an organized file including anything helpful to the case, such as emails, pictures, videos, text messages, contracts, paperwork, etc. If you plan to fix damage that was done to you, you need to consider talking to an attorney first to ensure you don't destroy evidence and the other side has the appropriate opportunity to examine said evidence.
Don't forget deadlines. Consider statutes of limitations on the case. And, once a case is filed, the clock starts on various litigation deadlines that move fast.
3. Case Management & First Appearance
Once pleadings are in (Complaint, Answer, Counterclaims, Cross-Claims, Replies, Motions to Dismiss, etc.) and done with, the court might set a Case Management Conference. This is typically an on-record phone call w/ the court to establish rules and deadlines for the case. This will result in the judge issuing a case management order that directs the parties throughout the case and sets a trial date.
Next, discovery begins. This is one of the most important stages if you want to try to set the case up for settlement negotiations, and if that fails, you have the facts needed to support your case at trial. Discovery can be very costly and time consuming. You may need expert witnesses to examine evidence. You may send written discovery in the form of Requests for Admission, Requests for Production of Documents, or Interrogatories. You might send subpoenas out to non-parties. And finally, you might schedule depositions and depose your opponent under oath. These processes are complex and you'll begin to field legal objections from the other side. This could also involve discovery dispute hearings in front of the judge. It goes without saying you'll likely want a lawyer on your side.
5. Dispositive and Pre-Trial Motions
This is an exciting opportunity to end the case early and, at least, to test your theory of the case in front of the judge if you lose the motion. These motions are often referred to as Summary Judgment Motions. They are legally complex. This is where your lawyer's analytical skills can really shine. Motions of this sort are time intensive and costly, so you'll want to discuss the pros/cons with your lawyer.
In addition to dispositive motions, your lawyer will be filing evidentiary motions as well, hoping to get the judge to rule on evidentiary battles early, before the trial starts.
In the weeks leading up to trial, consider whether settlement negotiations need to be further entertained. At this point, you'll cross a line where your lawyer and his/her paralegals will need to dedicate dozens of hours to trial preparation, including exhibits, opening statements, closing arguments, witness testimony outlines, witness subpoenas, etc. You're in the final push and you need to stay strong here and present your case.
The trial could be a bench trial (in front of the judge only) or a jury trial (in front of a jury). Bench trials may be favored by parties to keep costs down and avoid the hassle of jury selection and elongated trial practice. First, each side presents opening statements. In general, keep this brief and to the point. Then, the Plaintiff presents its case first, which includes examining its witnesses and presenting evidence. Once the Plaintiff rests, the Defense has an opportunity to present its case as well. Once the Defense rests, there will be closing arguments. After closing arguments, a judgment will enter. You'll know who won at that point.
7. Post-Trial Remedies
Final judgment after trial isn't always the end of it. Sometimes, there is an appeal or a post-judgment motion for relief (such as, motion for new trial, judgment notwithstanding the verdict, amendment of findings, amendment of judgment, or relief from judgment). These motions and/or appeal filings are extremely deadline driven. You need to act quickly and hire legal counsel if you don't have counsel already. If you wait even a few days, you may have waived your objections to the judgment. Another motion that might be warranted here is a motion for attorney's fees and costs.
8. Collecting the Money Judgment
If you received a money judgment, you'll need to reach out to the other side to determine how/when they will pay. If you can't get a satisfactory answer, you may need to pursue judgment collection remedies. See this blog post on collection of judgments to learn more. Once the judgment is paid, the judgment creditor will file a satisfaction of judgment with the court and release any liens that exist because of the judgment.