Litigation Series Part 4: When Does Litigation End?
We are wrapping up our four-part litigation series here with the question “When does it end?” We already talked about filing a complaint and the time to answer the complaint in part one. Then, in part two we talked about the discovery process, which includes depositions and written questions to the other side as well as experts. And then in part three we talked about dispositive motions, which are motions that are generally filed right after the close of discovery before everyone starts to prep for trial. Now if these dispositive motions are granted, then a lot of times it’s over, litigation is over. And then there’s an appeal period and we move on from there.
Sometimes they are partially granted, meaning some of the causes of action you prevail on and then others you have to go to trial on. So that kind of limits the trial to only certain causes of action. It’s a lot faster than it would be if you had to prove your entire case. Now we’re at the end where we’re prepping for trial and there’s two different kinds of trials. There’s a bench trial, which is a trial just before the judge, there’s no jury. And then, of course, there’s the jury trial, which is the one everybody’s heard of, where you’ve got a trial in front of jurors that don’t know you, they’re members of the public and they’re the ones making the decision and the determination regarding the bench trials, a lot of times, if you’re talking about an accident case, you’re going to have a jury because everybody wants a jury for accident cases.
Sometimes in the business context where it’s a very heavy legal argument, there may be a bench trial instead of a jury trial because everybody wants a judge to decide rather than 12 of your peers. You have to make the request for jury trial at the beginning of the case. You only have a certain period of time to make it. And either side can request a jury trial, but you have to make it within a certain period of time. If you don’t, then you will move forward with the bench trial. I think it’s important to note that throughout the entire litigation period, there are many, many opportunities to settle the case and a good lawyer is going to try to settle the case because if you settle, then, of course, your attorney stops incurring fees and you resolve the matter.
A lot of times it’s an economic decision. It’s a risk analysis. Is it worth risking everything to go through with a trial and for 12 people to decide your fate or do you want to go ahead and negotiate a settlement and know what’s going to happen rather than risking moving forward? The other thing to note when I’m talking about it being an economic decision, whether to settle a case before a trial, you have to remember that attorneys are generally billed by the hour I’m billed by the hour. That’s how we do business. So if you have an attorney, then your attorney is going to be very expensive to go to trial because you have to think about how he is going to have to prepare to go to trial, which many times is many, many hours depending on the complexity of the case. Plus, they have to prepare all their witnesses so you can’t just walk into a courtroom and start the trial. Your attorney’s going to have to prepare a lot including prepping everybody that they’re calling to the stand. They’re going to have to go through the testimony and prep them, especially you as the client. You’re going to be spending hours with your counsel preparing for your testimony at trial and they’re going to be billing you for it. Before you get to the trial, there’s motions that are briefed and heard in front of the judge arguing about excluding evidence for trial. So there’s going to be additional court appearances before you even get to the actual trial that your attorney is going to have to prepare for and attend so just to keep in mind all of those hours add up. Then when you actually get to the trial, your attorney’s going to be billing for it. So that’s 8 to 10 hours a day because they’re going to be billing for preparing every day. They’re going to have to prepare for the trial because every day new information is going to come out at the trial and then they’re going to have to go home or in the morning prep again before they go back to court. So trials are very, very expensive. They can be worth it if seeking a decent amount of money and you prevail and the people that you prevail against actually have the assets that you can attach to get the money, then it definitely could be worth it.
And the other thing that people always, always ask me when we’re in litigation is, if we win, will the other side be forced to pay my attorney’s fees? That is a question. The short answer is it’s not guaranteed. It’s on a case by case basis. The judge has the ultimate discretion to either grant or deny attorney’s fees and it also depends on how your attorney has played the whole case. If they’ve done, what are called, offers of judgment, how exactly it’s all played out, but yes, there’s a possibility you could get a fees at the end, but it’s not guaranteed, so you should not be going through an entire litigation case thinking that you’ll spend $100,000 on your attorney and I’ll get it back at the end. Nothing’s ever guaranteed. Just like I tell all my clients, you’re not guaranteed to win even if you have the best case. I can’t ever make a guarantee. Any attorney that makes a guarantee is not doing their job, they’re lying to you. They can’t guarantee anything. They can tell you that they believe we’re going to prevail, but they cannot say that you will 100% prevail.
So, how do we end this? We go through and we do the dispositive motions and we either win on those and it’s over or we have to go through trial. Or what happens many, many times is it gets settled literally right before the trial begins. That happens a lot. Remember that only about 5% of cases actually make it to trial. Most of them settle or are resolved in some way or another before they actually get to trial. Just keep that in mind. It’s very rare that you would actually go to trial. You might prepare, prepare, prepare, prepare, and then the day of the trial, you guys settle because it is a big risk when you go to trial. Plus it’s a big expense.
Once you go through the trial, the jury returns a verdict or the judge submits their order on the trial, then it’s over and done. And then you’re dealing with post-trial motions, the motion for attorney’s fees could be one. And of course you have to decide whether you’re going to appeal the case. And if you appeal, then it goes to appeal and that’s a whole other production that that’ll take a while to get through.
In sum, with litigation, what I’m trying to explain and get the message out is that litigation costs a lot of money. It can spend a lot of time and a lot of emotional energy because, they’re going to depose you. You’re also most likely going to testify at trial. So you’re going to have to be reliving whatever the experiences that you had. So these are not things to consider lightly. If you actually want to file a lawsuit, you have to make sure that 1. you’re in a good position 2. the other side actually has the assets that you can take if you prevail and 3. that you’re ready and prepared to spend money and time and energy on the lawsuit. This concludes our 4-part series on litigation. If you have any questions please reach out. Visit our Website for more information. To schedule a complimentary, 15-minute phone consultation with our attorneys call (702) 213-8426, or click here to schedule your complimentary consultation.