Friday, January 04, 2008

An Idiot's Guide to Litigation

Lawyers: Stop reading now!

No! Really! We mean it!

This post is a very -- as in very -- basic guide to the litigation process, meant only to help the press (and interested others) understand the next post that we're putting up. And you'll understand that next post without reading this one.

So click away to something else, and leave us alone for a minute.

For the rest of you, here's what no one (including law school professors, we might add) ever explained in a way that people could understand:

A plaintiff sues a defendant by filing a "complaint."

The defendant then has three chances to win.

First, the defendant can win if the court grants a "motion to dismiss." (In a few oddball states, the motion has other names. In California, it's a "demurrer." In Pennsylvania, it's "preliminary objections." But say "motion to dismiss," and everyone knows what you mean.)

A motion to dismiss says that, even assuming everything the plaintiff said in the complaint were true, the defendant still would not be liable for anything.

For example: The plaintiff sues me for crossing the street against a green light.

Whoa! Even assuming everything the plaintiff says is true, I still didn't do anything wrong. You're allowed to cross the street against a green light. I win; motion to dismiss granted.

If I don't win on motion to dismiss, the parties start "discovery." That means handing over your documents to the other side and letting the other side examine your witnesses under oath at depositions.

No one understands the meaning of the word "discovery" until they've lived through it. If your client has, say, 30 million pages of electronic documents on a subject, figuring out what's relevant, reviewing everything, and sending it to the other side, is awfully expensive. Defendants want to avoid discovery if it's at all possible.

During (or at the end of) discovery, the defendant gets its second chance to win the lawsuit, by filing a "motion for summary judgment." That motion says that, "We've now heard all of the testimony in the case, and it's clear based on the undisputed testimony that the defendant didn't do anything wrong."

Thus: The plaintiff sued me for crossing the street against a red light. I can't win that case on motion to dismiss; crossing against a red light is in fact against the law.

But, during discovery, we heard what all five witnesses to the accident had to say. All five said that the complaint is wrong; they saw the accident, and every one of them says that the light was green when I crossed.

I win on summary judgment. Although the complaint did accuse me of doing something against the law, the undisputed facts show that I win.

("Undisputed" is an important word here. If the Pope, an archbishop, a rabbi, and an imam all saw the accident and say the light was green, but one half-blind, liquored up, recidivist ax murderer also saw the accident and says the light was red, I can't win on summary judgment. The facts are no longer "undisputed.")

If I lose summary judgment, I go to trial. The judge or jury hears the testimony, weighs the relative credibility of the witnesses, and decides who wins.

Needless to say, winning on motion to dismiss is great -- cheap and riskless. Winning on summary judgment is the next best thing -- horribly expensive (because of the cost of discovery), but it still eliminates the risk of trial. And winning at trial places a distant third -- most expensive, and you don't know the result until the jury speaks.

Losing at trial is worse.

That's the lingo -- "motion to dismiss," "discovery," "motion for summary judgment," and "trial."

And that's how it works, in a nutshell.

Remarkably, lay people who read this post may well now have a better grasp of the litigation process than first year law students two months into class. Professors simply don't speak these words in a way that people can understand.

(Hey, Civil Procedure Profs Blog! We dare you to link to this one. Double dare you.)

Our next post will not be an idiot's guide -- but simply a layman's guide -- to the main defenses available in pharmaceutical product liability case. Back at you shortly.

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