WHEELING – For any of us unfortunate enough to have to file a civil lawsuit, we know all too well the truth of the familiar refrain “the wheels of justice turn slowly.”
Indeed, it can be quite frustrating, and borderline maddening at times, to be embroiled in litigation over a just cause, only to see months and months pass with what seems like no real movement towards resolution. And the typical pace of a lawsuit is even more acutely felt when the stakes are high and the case involves important matters that have changed one’s life drastically.
From a lawyer’s perspective, it seems like there’s never enough time to get ready and each client’s case dominates the lawyer’s daily life for years. But a lot of what occurs in preparing for a lawsuit does not directly involve the client on a daily basis.
So months can pass where the client is not directly involved in the day-to-day preparation of the case, which can greatly add to a litigant’s frustration.
I wanted to take a moment to try and bring some understanding to the moving parts of a typical lawsuit in hopes that, through awareness, litigants can find a bit more solace while they wait for their case to resolve.
Every civil lawsuit starts with the filing of a Complaint. A Complaint is the initial pleading that a plaintiff (the person who brings the lawsuit) files that outlines the basic facts and allegations of the lawsuit. A Complaint is not a form or typically a document that can simply be whipped out and filed once the client leaves a lawyer’s office after that initial meeting. On the contrary, typically a fair amount of planning and fact gathering must take place before a Complaint can be drafted, because there are rules in every state that govern virtually every aspect of the filing of a civil lawsuit. These rules must be followed or a litigant risks the very real possibility that the Court will simply dismiss the lawsuit for non-compliance right out of the gate.
For instance, in a medical malpractice case, most states require a litigant to present a notarized “certificate of merit” from a licensed doctor practicing in the same specialty as the defendant doctor, certifying that the case is meritorious, before one is even allowed to file their Complaint. To obtain that certificate from a qualified doctor, the doctor has to review all of the relevant medical records, which can take several months to obtain from the medical facilities at issue.
Some states, like West Virginia, then require a litigant to give the doctor’s certificate to the target defendants of a lawsuit and then wait another 30 days before filing the Complaint. So from the day you first consult with a lawyer, it can often take many months before your lawyer is even in a position to file your Complaint.
Once a Complaint is filed, the defendants in the lawsuit typically have 28-30 days to file a responsive pleading. That responsive pleading typically takes one of two forms. First, a defendant can file an Answer addressing each of the allegations in the Complaint. The filing of an Answer can help move a lawsuit along, because once an Answer is filed, discovery of each side’s evidence can begin, bringing the litigants one step closer to trial. However, the other type of responsive pleading that is typically filed is a Motion to Dismiss the Complaint.
The law provides numerous grounds by which a defendant can try to have a lawsuit dismissed. These grounds include things like the plaintiff’s failure to state a claim, defects in the Complaint or an argument that the plaintiff has insufficient evidence to support their claim. Typically, when a Motion to Dismiss is filed, discovery of the other side’s evidence is put on hold, until the Court rules on the Motion to Dismiss.
If a Motion to Dismiss is denied, the defendant typically gets additional time (typically two to four weeks) to file an Answer. Once the Answer is filed, then discovery can begin. The Civil Rules of procedure allow for the discovery by each side of the other side’s evidence. This is accomplished through two mechanisms.
First, written discovery requests are served by each side asking for information and documents that the other side has that could be relevant to the issues raised in the lawsuit. Typically the answering party will have 28-30 days to respond to this request, but extensions of those timeframes are typically granted upon request so these time frames can and usually are extended once or twice.
Usually after written discovery has been completed, the second phase of evidence gathering begins – namely the taking of depositions. Depositions are the mechanism by which each side gets to question the other side’s witnesses, who are place under oath to tell the truth. The testimony of each side’s witnesses are recorded by a court reporter and testimony is to be given exactly as if the witness were sitting in Court on the stand during trial in front of the jury.
Depending on the number of witnesses that have discoverable information and the complexity of the case, depositions can take months, if not years to accomplish.
Once all the information possessed by each side has been discovered, the defendants get another chance to have the lawsuit dismissed. You see, the plaintiff in a lawsuit has the burden of proof, which means that the plaintiff is the party that must present enough evidence of their case to even allow the jury to decide the issues.
The Court acts as a gatekeeper here to make sure that the evidence is good enough to even present it to a jury. If the plaintiff is unable to present sufficient evidence to meet their burden of proof, the Court will dismiss the lawsuit.
The legal procedure for trying to get a lawsuit dismissed at the end of discovery is called “summary judgment”, and the defendant in every civil lawsuit has the opportunity to ask for such relief from the Court.
If a plaintiff survives the summary judgment stage, the next phase of the lawsuit typically involves each side moving to exclude certain evidence or arguments from being presented to the jury at trial. Under the Civil Rules of Evidence, only relevant evidence is admissible.
Only evidence that has any tendency to make a fact that is of consequence in determining the action more or less probable than it would be without the evidence is admissible at trial. So in almost every case, each side will argue over which evidence meets that standard.
Once the Court has ruled on each side’s motions to exclude evidence, only then is the case ready to be presented to a jury. Depending on the evidence, trials can last anywhere from days to many, many months.
Once a verdict is delivered by the jury, each side has the right to appeal the decision, which can add a great deal of additional time to the ultimate resolution of one’s case. Litigants are somewhat more fortunate here in West Virginia, since West Virginia only has one appellate court, The West Virginia Supreme Court of Appeals.
But other states have multiple levels of appeal courts and litigants have a right to appeal to each one of them to overturn a verdict.
Typically, if all goes smoothly through this procedure, a litigant is looking at a trial anywhere from 12 to 18 months from the date the Complaint was first filed. And, unfortunately, this is usually a best-case scenario.
There are many, many other factors that can delay the resolution of a civil lawsuit. For instance, Courts are very busy places and a big factor in how soon you can get your case to trial depends on the Judge and the Court’s schedule. Criminal cases get priority over civil cases, so it will take longer to get your civil case to trial in a county that sees a lot of criminal activity. Also, a litigant can appeal a Judge’s decisions along the way, before the case even goes to trial. For instance, a defendant who loses a Motion to Dismiss can petition for an appeal of that decision. All of these things can add a tremendous amount of additional time to the ultimate resolution of a lawsuit.
On the bright side, cases can settle at any time during the litigation process, but the process is daunting not only because of the emotional turmoil that lawsuits often involve, but also simply because of the length of time one must remain patient in order to see justice done. For those reasons, I often feel a great deal of pride and admiration for the clients we represent. For their willingness to stay the course to see wrongs righted, for their steadfastness in the face of significant procedural adversity. It takes a great deal of courage, perspective and patience to seek justice, and I am fortunate enough to work with clients every day who dig deep and rise above the inherent hurdles they must climb to have their case decided by a jury of their peers. If you are considering the filing of a lawsuit, please do not despair. Although justice can often take a while, truth can and still does win out in the end, and a cause worth fighting for is a cause worth fighting for. Period.
Zatezalo is an attorney with Bordas & Bordas in Wheeling.