Litigation

Week 1 Essay

Randall Scott Taylor        

Electronic Discovery        

Professor McCann

Wilmington University

         Litigation is the process and stages of a civil or criminal trial. Litigation occurs when the government initiates charges and commences a criminal trial against a defendant, or when a plaintiff files a civil suit against another person, the defendant, due to harm suffered as the result of a tort, breach of contract, or familial dispute. Litigation is related to a civil suit in that the civil suit, as well as the criminal suit, must follow certain and very specified procedures and guidelines set by the court or the Federal Rules of Civil Procedure or Evidence.  The procedures and guidelines must not violate the protections outlined in the US Constitution, such as due process, sufficient notice, or offend the traditional notions of substantial justice or fair play.  

There are approximately five major steps that litigation is composed of. The first is the filing of the complaint and the answer.  Litigation begins when a plaintiff files a complaint with the court and causes the defendant to be served with a summons, which consists of proper notice of the suit and a copy of the complaint filed by the plaintiff. The defendant may then either file an answer denying or accepting the allegations in the complaint, or file a motion to dismiss prior to the answer in the event the plaintiff fails to state a claim upon which relief may be granted. The defendant may also file a motion to dismiss if the court lacks personal jurisdiction over him or her. The second is the filing of pretrial motions.  A plaintiff or defendant may file a motion for summary judgment if there are no genuine issues as to any material facts, and he is entitled to judgment as a matter of law.  A defendant may also file a motion to dismiss if the plaintiff fails to state a claim upon which relief may be granted, or if the court lacks personal jurisdiction over him. The third is discovery and pre-trial. This consists of each side deposing the other with regard to the allegations in the claim or the answer.  Discovery also includes pre-trial conferences with the judge where attorneys divulge discovery progress and possibly reach a settlement under the supervision of the judge. Discovery deadlines and conclusions may also be set by the judge at this time. The fourth is trial and judgment.  If the attorneys are unable to reach a settlement after discovery is complete, the matter is can be set for trial.  A motion for summary judgment may still be filed at this time if there are still no disputed material facts after the close of the trial and before the verdict is reached. Appeals and enforcements are the final stages. A party may appeal a judgment once it has been entered by the court.  The appeal is either dismissed, reversed, remanded, or sent back to the lower courts with instructions not inconsistent with the appellate court’s ruling.  The prevailing party may enforce the judgment of the court against the party it was rendered against, even if the losing party moves out of state.  This is due to the full faith and credit clause of the US Constitution.  Judgments may be enforced by obtaining court orders to seize property to satisfy the judgment.

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