by Jonathan T. Howe, Esq. | December 01, 2014
• In complicated cases, depositions can go on for weeks.

One or both parties often will ask for summary judgment before the trial really gets rolling, essentially asking the judge to rule without the matter having to go through the full proceedings.

The outcome of the trial might not be the final answer. Both parties have the right to appeal; in most states and in the federal courts, there are intermediate appellate courts to go through before one is able to petition the Supreme Court of the jurisdiction for final resolution.
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Last month, we discussed mediation and arbitration, two alternate forms of dispute resolution that keep people from going to court when contracts are breached. Here's what will happen when either of those don't work, and litigation is your only remaining option.

A lawsuit is filed in the court that has jurisdiction, a detail that should already be in your signed contract. The dollar amount in question must meet the court's requirements, which can vary. In federal cases, the dispute amount is $75,000 or more, and the case must involve either "diversity of citizenship" (the parties live in different states) or a "federal question" (such as a trademark or patent infringement).

The process requires the sheriff or marshal to serve a summons on the defendant, who usually has up to 28 days to respond. Many times at this stage, a defendant will file a motion to dismiss the case for failure to fully define the nature of the infraction, and a judge will rule on that motion. Even if the judge rules in favor of the defendant, it is likely that he or she also will allow the plaintiff to fix and resubmit the complaint.

Now discovery -- the gathering of all pertinent documents, emails and other evidence -- begins. Most important: Once the defendant is aware of the claim, there is a document freeze that includes electronic communications, so no hitting the delete button or going to the shredder. It's too late.

In addition to document production, there will be written interrogatories and depositions to be taken of the parties and other potential witnesses. Many courts limit the time frame for a deposition to a maximum of eight hours or as the parties might otherwise agree.

Throughout this process you will be spending a lot of money on and time with your attorney.

Once discovery has been completed, experts have been obtained and depositions taken, the trial will be conducted either before the judge or a jury. In a civil case, unlike a criminal case, the plaintiff's case does not have to be proven "beyond a reasonable doubt."

At trial, opening statements are presented and then the plaintiffs will present their case, and their witnesses will be subject to cross examination. If motions to dismiss are not granted at this point, then the defendants present their case, subject to cross-examination, followed by closing arguments.

Instructions are then given to the jury by the judge as to how they should determine who prevails, in accordance with the law.

This process is expensive, time-consuming and emotionally draining. The good news is that some 95 percent of all cases are settled.

Jonathan T. Howe, Esq., is a senior partner of the Chicago, St. Louis and Washington, D.C., law firm of Howe & Hutton Ltd., specializing in meetings and hospitality law. Email questions to him at