Don’t Get on the Train Unless You Know Where It’s Headed

Let’s suppose that you have received a claim or demand letter. Perhaps even worse, suppose you’ve been served with a summons and complaint. On the other hand, suppose that you have a claim against someone that you have not been able to resolve. At the onset of a case, you would provide your lawyer with all of the important facts and documents, determine together what your needs and interests are, and then devise a strategy to achieve them.

But before a strategy is created, it is imperative to understand the procedural steps along the way that are required by the courts, and may be required by your adversary.

These steps are most easily broken down into stages. A good analogy is that of a train — you board a train and recognize that there are many stops along the way. For planning purposes, you will need to understand the details of each “stop.”

For example, the first stops include discussing the demand or claim and, if it is in or proceeds to litigation, the complaint, an answer, and counterclaims. These documents (referred to in litigation as the pleadings), will identify the issues and provide a framework for what follows.

Afterwards, the real work begins. These stops may include court conferences, discovery (at the very least, typically document production and depositions), motion practice, and mediation. The final stop, should your case get to that point, is the trial.

Because each of these steps requires a significant time and financial commitment from you, it is critical to know — in advance — what may be in your future.

For example, if you are the plaintiff, the opposing party may move to dismiss some or all of your complaint rather than answer the complaint. If you are a defendant, you may choose to move to dismiss some or all of the complaint rather than answering the complaint or, if you choose to answer, whether to assert a counterclaim.

If you are the plaintiff and a motion to dismiss is made by the defendant, this first “stop” will require your attorney to prepare answering papers; you will have no choice. While the amount of work will depend on the case and the issues, there will be a cost involved. Of course, if you are a defendant, you can try and limit your costs by not making a motion; by serving your answer and counterclaims and going right to discovery. If the court grants the motion and dismisses the entire complaint, then barring a subsequent successful appeal, the train will never reach the last station; the case will be over. If you are a defendant, that would be a terrific result — one that would not have been achieved so early in the ride if you did not make the motion. If you are a plaintiff, just the opposite.

Assuming the case proceeds, the next “stop” is discovery — unless you attempt mediation first.  We have written extensively about mediation as a faster, more cost-effective method to resolve a dispute; the parties can fashion their own settlement and not be subject to the uncertainty of a trial. For these reasons, it is a step that should be considered by all parties whether or not the court requires you to mediate. If the parties resolve the dispute in mediation, once again, the train will never reach the last station and other “stops” along the way, and significant additional costs will be averted.  However, mediation, is not free; at the very least, you will probably have to pay your lawyer for her time and may have to pay the mediator as well.

If the case is not settled at mediation, or if a mediation does not take place, you will proceed to the next stops — the next and often most costly one being discovery, followed by a possible motion for summary judgment and, if the case moves forward, trial.

Certainly, a case can be settled at any time — and most are settled or otherwise disposed of prior to trial. However, one can see how the different stops along the way, and how a party approaches them, can play a large part in determining ultimate cost, and thus the true value of the claim and risks for everyone involved — all of which are important considerations for parties in dispute when determining their strategy and considering settlement.

The purpose of this triptych is not to discourage parties from seeking redress if they have been wronged or to suggest that someone accede to baseless claims; it is intended to make sure that parties respond to disputes, and proceed to litigation, with their eyes wide open. If a party understands the “stops” along the way and the costs of proceeding from one to the next, she will be able to devise a strategy to meet her needs and interests, and make informed judgments along the way as to how to achieve them.

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