What Happens When You Sue Somebody?
The process of suing someone is called “litigation.” Litigation has several stages, or “phases,” as they are sometimes called. In this post, we will discuss each stage of litigation and how a lawsuit in the New York State Supreme Court unfolds over time.
1. Investigatory Stage
When you approach a lawyer with a possible case, the lawyer has to take some time to look into the facts of your case to determine if your problem is serious enough to bring a lawsuit.
This investigation usually involves meeting with you, having you sign authorizations for medical records, reviewing those records along with any accident reports or other documents associated with the incident, and speaking with witnesses.
After all of this is done, if the lawyer thinks you have a case they will most likely send what’s called a “demand letter” to the person or business you want to sue to try to settle the case before bringing a lawsuit. “Settling” is when the two parties involved in a disagreement agree to resolve the matter—usually by paying money—in exchange for dropping a lawsuit. For instance, if you were bringing a lawsuit for injuries you sustained in a car accident, the other driver’s insurance company may agree to pay you a certain amount of money in exchange for your agreement that you will not sue them.
Many cases settle this way, but when they don’t the next step is to file a Summons and Complaint with the County Clerk’s Office. A Summons and Complaint outlines your version of the case. Filing the Summons and Complaint, along with the $210 filing fee, begins the lawsuit.
2. Discovery Stage
Once a Summons and Complaint is filed, you enter the discovery stage. This is when both sides have the chance to gather information they would otherwise not be allowed to have. First, the defendant responds to the complaint with the “answer,” which is where they either agree with or deny allegations made in the complaint. Then the defendant usually sends a number of formal requests to the plaintiff making demands for certain information, such as:
- Detailed explanation of the facts
- List of any laws the plaintiff claims the defendant violated
- Any records relevant to the case such as medical records, statements or photographs
- Authorizations allowing the defendant access to the plaintiff’s medical records, employment records and/or school records
- Lists of any expert witnesses the plaintiff plans to call
- Request to depose the plaintiff under oath
The plaintiff responds to these demands and then sends their own requests for other information, such as:
- Detailed explanation of any denials or defenses the defendant asserted in the answer
- Whether there is any insurance coverage, and if so, how much
- If the defendant had notice of the condition that caused plaintiff’s injuries
- Whether anything like this had ever happened before
- Any records or documents that the defendant has that are relevant to the case, such as statements, photographs, agreements, blueprints, etc.
- List of any expert witnesses the plaintiff plans to call
- Request to depose the defendant under oath
Once both sides have had a chance to exchange information, then the depositions begin. Depositions give each side an opportunity to question parties and witnesses, outside of court, so they can gather more information about the case. Depositions usually happen in a conference room, often at one of the law firms involved in the case. The person being deposed, called “the deponent,” is asked questions by the attorney on the other side, under oath, with a stenographer present. Then the deponent’s attorney has an opportunity to ask him or her follow-up questions. Giving testimony at a deposition is very similar to giving testimony at trial, in that you must promise not to lie and your statements are recorded, word for word. This means that anything you say might be used against you later. Both sides may want to depose other people as well, such as witnesses or treating doctors.
After everyone has been deposed there is usually another round of settlement discussions. If a settlement can be reached, the case ends. If a settlement can’t be reached, a “Note of Issue” is filed, which tells the court that the case is ready to go on the trial calendar.
3. Pre-Trial Stage
After the Note of Issue is filed, you enter the pre-trial stage. This is when we start preparing to actually go to trial. Both sides start collecting certified copies of records to use as exhibits at trial; subpoenas are issued to witnesses; and both sides exchange detailed explanations of what their expert witnesses will testify about. There is usually a final attempt to settle the case. By this point in time, the vast majority of cases have settled. Some statistics say that 95% of civil lawsuits settle before trial.
4. Trial Stage
In the event your case hasn’t settled, it goes to trial. Both lawyers, the plaintiff and the defendant, go to the courthouse and try the case in front of either a judge or a jury. You have right up until the moment the case ends and goes to the judge or jury for a decision to settle your case. So, sometimes even though the trial has started, the case might still settle. The trial ends if that happens. If the case doesn’t settle, questions regarding the case go to the judge or jury to answer and a decision is reached.
5. Appeal Stage
In certain situations, if one side isn’t happy with the result of the trial, they can appeal to a higher court, which in New York is called the Appellate Division.
Litigation can be a lengthy and stressful process. Understanding that process helps you take control of your situation and enables you to make the best decisions for you and your family. If you have any questions about bringing a lawsuit, please contact one of our attorneys.