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LITIGATION

 
INTRODUCTION
Litigation is the process that officially begins when a lawsuit is filed. In Oregon’s state judicial system lawsuits are filed in the circuit court. This summary does not describe the process followed in federal court, or the procedures in certain specialized types of state court cases, such as evictions, divorce and criminal cases.

PLAINTIFF’S COMPLAINT
The parties to a lawsuit are the plaintiff (who is suing) and the defendant (who is being sued). After the plaintiff’s complaint is filed, a summons and a copy of the complaint are served on the defendant by:

  • a private process server, or,
     
  • a sheriff’s deputy, or,
     
  • publication in the newspaper if the defendant cannot be found

Complaints, and the parties’ other pleadings, are often amended during the course of litigation.

CLAIMS FOR RELIEF
The plaintiff’s complaint will include one or more claims for relief, most typically seeking:

  • damages, that is, a money award. The three types of damages are:
    • economic damages, for financial losses
    • non-economic damages, for pain and suffering
    • punitive damages, which are designed to punish the defendant for especially egregious behavior
  • injunctive relief, asking the judge to issue an injunction, ordering the defendant to do something, or to stop doing something. A complaint can request preliminary injunctive relief in the form of a temporary restraining order or a preliminary injunction. These restrict the defendant’s activities during the period before trial. To obtain preliminary injunctive relief, a plaintiff must meet a higher burden of proof than at trial, and usually will have to post a bond to protect the defendant in case the defendant eventually wins the case at trial and was financially injured as a result of the preliminary injunction.

ARBITRATION
A case will be transferred from circuit court to arbitration if (1) the plaintiff’s complaint requests damages of less than $50,000, (2) arbitration is requested by one of the parties and the dispute arises from a contract that requires arbitration instead of litigation, or (3) the parties agree to arbitration.

MOTIONS
A motion is a party’s request that the judge issue an order. Motions can be filed prior to, during or even after trial. Most typically, when motions are made during the period before trial, each side submits a written argument to the judge, who then holds a hearing where the lawyers argue for or against the motion. Some motions are dispositive, that is, if the party’s motion is successful, that party wins the case without a trial.

DEFENDANT’S ANSWER
The defendant has 30 days after being served the summons and complaint (a period that is often extended by agreement between the parties’ lawyers) to file a response, which will be either:

  • a motion, typically challenging something about the way the complaint is written, or
  • an answer, admitting or denying the allegations in the complaint.

Unless a motion is dispositive, after the judge rules on it, the defendant will file the answer to the complaint (or to an amended complaint, if the decision on the motion required that the complaint be amended). The defendant’s answer might include counterclaims by the defendant against the plaintiff, or third party claims by the defendant against additional parties who are then brought into the case. If the defendant misses the deadline for filing the response, the plaintiff can win the case by default.

DISCOVERY
Discovery is the process in which the parties “discover” information from their opponent or from witnesses. If there is a dispute as to whether the evidence requested is relevant or privileged, likely a motion will be filed, and the judge will decide which evidence needs to be produced.

Formal discovery is accomplished primarily through:

  • obtaining documents from the other party, or by subpoena to third parties, and
  • taking depositions, where the lawyers take the sworn testimony of the opposing parties and witnesses.

Informal discovery is typically conducted by interviewing or collecting documents from cooperative witnesses. (Uncooperative witnesses can be subpoenaed to a deposition.) The opposing party is not notified of, or involved in, informal discovery.

MOTION FOR SUMMARY JUDGMENT
A motion for summary judgment, which usually cannot be filed less than 60 days before trial , requests the judge to rule that the party filing the motion wins all or a part of the case, without the need for a trial. The judge will deny the motion if the judge finds that the parties disagree about important facts. Factual disputes can be decided only at a trial.

SETTLEMENT
About 95 percent of all lawsuits are settled before trial. (A case can also be settled during, or even after, trial.) The parties can reach a settlement on their own or through their attorneys, or they might reach settlement in mediation. In mediation, a lawyer or judge serves as the mediator. Some courts require the parties to attempt mediation before going to trial.

TRIAL
Cases that are not settled or decided in arbitration go to trial. In certain cases, the parties are entitled to have a jury trial. If there is a jury, the judge decides the legal issues and the jury decides the factual issues. Nine of the twelve jurors must agree to reach a verdict.

Judges decide claims for equitable relief (basically non-monetary claims, such as injunctive relief), and, if there is a jury, it will decide on the amount of money damages.

Trial dates are often re-scheduled, sometimes at the last minute.

ATTORNEY FEES
The prevailing party at trial is entitled to an award from the losing party of the money spent on attorney fees only (1) if the lawsuit involved a contract that included an attorney fee provision, or (2) if the prevailing party’s claim was based on a law that authorizes an attorney fee award. Otherwise, each side bears its own attorney fees, win or lose. Most other expenses, such as the fees charged by expert witnesses, are borne by the side that incurs those expenses, regardless of who prevails at trial.

A party’s request for an award of attorney fees will not be mentioned during trial. If the trial verdict is in favor of a party who claims a right to an award of attorney fees, that request is ruled on by the judge after trial. The judge may hold a hearing if there is a dispute over a party’s right to attorney fees, or whether the amount requested is “reasonable.”

COSTS
The prevailing party is entitled to an award of costs. Costs do not include attorney fees. They do include items such as court fees and witness fees. In most cases cost awards are less than a thousand dollars.

APPEAL
The party who loses at trial can appeal to the Oregon Court of Appeals. An appeal can take a year or more. A party who wants to stay the trial court decision during an appeal must usually post a bond. Once the court of appeals issues its decision, either side can ask the Oregon Supreme Court to accept a further appeal, although it does not frequently do so.

COLLECTING ON A JUDGMENT
If a trial results in an award of damages, costs or attorney fees, that money award will become part of the trial court’s final paperwork, which is titled a judgment. The prevailing party is then known as the judgment creditor, and the losing party as the judgment debtor. The judgment creditor can attempt to execute on the judgment to collect the amount owed by the judgment debtor. As part of that process, the judgment creditor can take the deposition of the judgment debtor to find out what assets and income can be foreclosed upon, garnished, etc. A judgment is enforceable for ten years, and can be renewed for a second ten-year period. The collection process can be put on hold if the judgment debtor files an appeal and posts a bond or other security, insuring that the judgment creditor will be paid if the appeal is unsuccessful. The judgment debtor might also consider filing bankruptcy in an attempt to discharge the judgment.

© Law Office of Charles E. Corrigan, P.C.

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