Litigation can be intimidating to those that have never experienced it before. Breaking down the process can make it easier to understand what is happening and what you can anticipate next.
While details vary depending on the case and jurisdiction, most civil disputes follow a very similar journey from initial dispute to final resolution.
Below, we’ll take a look at some of the key stages of litigation and what typically happens at each step.
Pre-action
Before a formal claim is issued, you have the pre-action stage.
This is when the dispute first occurs, after which information may be gathered and letters may be exchanged. Solicitors often recommend sending a Letter Before Action during this phase to explain the issue to the other party, present evidence and detail what compensation is expected.
Generally courts prefer it when parties have first tried to consider forms of alternative dispute resolution instead of taking a dispute straight to formal proceedings. After all, avoiding litigation saves time, money and stress. A party that demonstrates signs to settle a case out of court may also be viewed more favourably in some cases.
Issuing the claim
If the dispute cannot be settled informally, formal court proceedings will begin the moment a party files a claim.
This is done using a claims form. This document sets out essential facts of the case and the remedy that is sought out. The court then presents these documents to the defendant, who must respond within a set deadline.
The defendant’s response could be to admit the claim, present a defence or file a counterclaim. Once the claim and defence are in place, a timetable is set for the rest of the case including key deadlines and a provisional trial date.
Exchange of evidence
The next stage is all about disclosure and discovery of evidence. This is evidence that will be presented during the trial to argue each party’s case.
Witness preparation is a key part of this stage. Evidence in the form of writing, images or videos is also gathered. Nowadays, much of this evidence is in the form of digital files like emails, messages and documents – eDiscovery for law firms is crucial, and often requires specialist software to sift through all the evidence.
Evidence is exchanged so that each party can build a fair case. The quality and completeness of this evidence greatly affects the outcome, so it’s important each party starts preserving evidence from the pre-action stage.
Trial
If the case doesn’t settle beforehand, it proceeds to trial.
At trial, each side presents its evidence before a judge in a court. In some cases, a jury may be assembled.
The trial consists of four phases:
- Opening statements
- Examination and cross-examination of witnesses
- Consideration of documents and expert evidence
- Closing submissions from lawyers
The judge must determine the facts based on the evidence, consider the law and reach a decision. Many cases settle shortly before trial.
Post-trial
The litigation journey doesn’t always end with the judge’s verdict.
Appeals can be made if either party believes the court made an error. These appeals follow their own set of rules and timelines.
Generally, however, the party that lost the case will be expected to pay compensation in some way. Failure to comply could result in extra penalties.
