Litigation Primer: What To Expect When You Or Your Company Faces Litigation Part III: Motions Practice, Trial And Appeal

Having worked as a litigator for over twenty years, I have noticed that most clients are unprepared when they become involved in litigation.  This is true regardless of whether the client is the plaintiff (who can choose whether the dispute is one worth litigating over) or the defendant (who may have been pulled into litigation it never anticipated and certainly doesn’t want).  And it is true regardless of whether the client is an individual or a company, and regardless of whether the client has been involved in litigation previously or whether this is its first litigation experience.  Although every legal dispute is different, this multi-part article will address some of the common elements of all civil litigation.  This Part III will address motions practice, trial and appeal.

1.  Motions Practice.

After gathering necessary evidence during the discovery phase (or possibly even prior to gathering evidence), one or both parties will likely file a motion with the court.  The court will be asked to make a ruling on a question of law that will govern certain aspects of the case.  A variety of motions are available.  These include motions to dismiss some or all of the allegations of the complaint; motions to compel discovery responses or depositions; motions for protective order; motions to extend time; motions in limine and motions for summary judgment. I will discuss each of these motion types briefly below.  Please recognize that this is not an exhaustive list, as a variety of other motions can also be filed in certain circumstances.  An attorney can best advise regarding any motions that can or should be filed in a specific case.

Motions to dismiss ask the judge to rule, as a matter of law, that the complaint is legally insufficient.  This means that the plaintiff is accused of failing to allege in the complaint everything necessary to establish a claim under applicable law, or that the case is otherwise defective.  For example, if the statute of limitations had already run before the lawsuit was filed, it would be proper for the defendant to file a motion to dismiss the complaint on that basis before taking any other action in the case.  A motion to dismiss is often filed early in the case, sometimes before the parties have spent time and money on discovery.  If a motion to dismiss is granted, the lawsuit is over as to each dismissed claim.

Motions to compel and for protective order are generally filed during the discovery phase of the lawsuit.  These types of motions seek court assistance in controlling the types of information that must be disclosed by a party during discovery; who will have access to that information; and how those with access may use the information.

Court rules generally set deadlines for various actions to be taken in a lawsuit.  For example, court rules state how long a defendant has to file an answer to the complaint; how long party has to file a response to a motion; and how long the parties have to complete the discovery phase of the lawsuit.  Parties often determine that they need additional time to complete a task beyond that allowed by the court’s rules.  A motion to extend time generally asks the court to allow one or both of the parties extra time to complete a specific task beyond that allowed by the court’s rules.

Motions in limine are generally filed near the trial date.  This type of motion asks the judge to rule that certain types of evidence either must be excluded at trial, or affirmatively can be introduced at trial.  The goal of such a motion is to allow both sets of counsel to learn their boundaries before the trial begins.  In this fashion, the parties attempt to limit the number and types of rulings the court will need to make during the actual trial, so that the trial can move more quickly and smoothly than it otherwise might.

Motions for summary judgment are generally filed after completion of discovery and prior to trial.  A motion for summary judgment asks the judge to rule on one or more of the claims that have been made in the lawsuit.  If a motion for summary judgment is granted, it will resolve one or more of the issues in the case without a need to have a trial as to any issues on which summary judgment has been granted.  Because a motion for summary judgment can prevent the need for a trial, or shorten the trial, a court will often delay a trial until after it has fully considered a motion for summary judgment.

In such a motion, the moving party identifies to the court all of the key facts that have been established during discovery; identifies any facts that the parties dispute; and presents legal arguments to support the proposition that, assuming that the responding party’s version of the facts is true, the law requires that the court rule in favor of the moving party as to who should win the lawsuit.  In other words, the party that files the motion for summary judgment tells the court what the other party’s story is, and then explains to the court why the law requires a ruling in favor of the moving party on the basis of the other party’s story.   If the court agrees, the court will rule in favor of the moving party as to some or all of the issues in the case.  There will be no need for a trial as to the issues on which summary judgment is granted.

Because motions for summary judgment are filed in many cases, it is important to understand what such a motion is designed to accomplish.  Here is an example.  Suppose Mark sues Jane, accusing Jane of stealing his car.  The facts establish that Jane had Mark’s permission to drive Mark’s car.  Even though Jane denies actually driving Mark’s car, Jane could file a motion for summary judgment stating that she accepts Mark’s story that she drove the car, but that she still is not liable because she had permission to drive the car.  In this example, Jane accepts Mark’s story, and shows that Mark’s story doesn’t allow him to win his case.  If the court grants Jane’s motion for summary judgment, Jane wins and the lawsuit is over.

2.  Trial.

Assuming the case is not resolved by a motion to dismiss, motion for summary judgment or settlement, the next phase will be the trial.  With limited exceptions, the plaintiff will present its evidence first, because the plaintiff will bear the burden of proving its claims.  After jury selection (assuming there is a jury) and opening argument, each of the plaintiff’s witnesses will testify one at a time.  Before testifying, each witness must swear to tell “the truth, the whole truth and nothing but the truth”, just like in the movies.  The plaintiff’s attorney will ask each witness questions that are relevant to the legal issues in the case, and the witnesses will each respond to questions using personal knowledge.  The witnesses will not be allowed to testify to facts about which they can merely speculate, or testify about information that others may have told them.  Instead, the witnesses will be required to confine their testimony to facts about things they have personally seen or heard.

The defendant’s attorney will have an opportunity to cross-examine each of the plaintiff’s witnesses after the plaintiff’s attorney finishes questioning that witness.  After the plaintiff has finished presenting its witnesses, the defendant will have an opportunity to present its witnesses. The plaintiff’s attorney will have an opportunity to cross-examine each defense witness.

After the witnesses have finished testifying, counsel for the parties will each present a closing argument, explaining to the jury how they believe the jury should decide the case and why.  Then the judge will give the jury oral instructions regarding the law applicable to the case, and the jury will go off to a private room to decide the case.  The jury will be expected to reach a unanimous verdict, which will be adopted as the judgment of the court.

3.  Appeal.

Following either a trial or the grant of a motion resolving the case, the losing party may choose to file an appeal.  An appeal occurs when a higher level court is asked to decide whether the trial court followed the law correctly.  The appealing party will send the appeals court a copy of the relevant pleadings from the trial court, along with a transcript of any relevant hearings or the trial of the case.  (All of this is called the “Record”.)  Then each party will file a brief, which is a written paper explaining what the party believes is the correct legal resolution of the case.   An appeal within the state court system in Georgia can last about a year.  Appeals in other courts can last anywhere from a few months to several years.  Each party will be required to pay its own appeal costs.

If there has been a money award in the trial court, interest on the award will accrue during the appeal.  There are also circumstances in which the losing party can be required to either post an appeal bond equivalent to the amount at issue or risk having the winning party collect on the judgment pending the appeal.

Once the appeal has been decided, the case will be returned to the trial court with instructions for further handling.  If the appellate court affirms or approves the trial court’s judgment, the case will be over.  If the appellate court reverses the trial court’s judgment, the trial court will be required to conduct further proceedings to resolve the case.

This Part III completes the portion of this article that addresses the nuts and bolts of litigation.  Part IV of this article will address litigation realities and litigation avoidance.

The analysis set forth in this article is provided for general understanding only and should not be considered legal advice.  Counsel should always be consulted for advice regarding a specific legal dispute.  Please contact The Myer Law Firm if you are in need of litigation counsel.


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