Whether you filed a lawsuit as a plaintiff or have been served with a Summons and Petition, the litigation process can be intimidating and confusing. The purpose of this article is to acquaint you with the general pattern of how a typical civil lawsuit (i.e., not a criminal case) progresses in Oklahoma state court. This is intended to be a broad and general overview of how a typical case will move through the system and is by no means an exhaustive treatment of all issues involved in every type of lawsuit. In addition, nearly every rule in litigation has at least one exception that may apply in certain circumstances; this article does not attempt to address those exceptions.
FILING OF THE LAWSUIT AND SERVICE OF PROCESS
The formal beginning of every lawsuit is the filing of a Petition by one or more plaintiff. In some matters, the party initiating the lawsuit may be referred to as an applicant and their filing styled as an Application or “In Re the Matter of…” instead of a more typical plaintiff(s) v. defendant(s) style. The parties being served may be called a respondent or interested party instead of a defendant. However, for purposes of this article, the initiating party will be called a plaintiff and their initial pleading called a Petition and the party being serve will be called a defendant. The Petition sets forth the plaintiff(s) claims against the defendant(s). The Petition must be served on the defendant(s) along with a Summons. The Summons is issued by the Court Clerk and provides notice to the defendant(s) that they have been sued and directs them to respond by filing an Answer within twenty (20) days of the date they receive the Summons and Petition. The time for filing an Answer can be extended by an additional twenty (20) days for any defendant that files an Entry of Appearance reserving additional time to respond. An Entry of Appearance identifies the attorney that will be representing the defendant, but does not address any of the claims in the Petition.
Service of the Summons and Petition on the defendant(s) may be accomplished in one of several ways depending on the circumstances. Private process server is the most common method of service, but certified mail is also used in many instances. The method of service used varies depending on the type of defendant(s) (i.e., an individual or a business) and the nature of the case.
THE ANSWER, DEFENSES AND COUNTERCLAIMS
The defendant(s) must file an Answer in the time allowed or will be deemed to have admitted the claims in the Petition and may suffer a default judgment. Attention to the time requirements in litigation is very important. The Answer either admits, denies or claims to have insufficient information to do either regarding each of the claims in the Petition. In addition, the law requires that the defendant(s) raise certain Defenses (called Affirmative Defenses) and other matters in their Answer or these Defenses and other matters are deemed to be waived. It is critical, therefore, that experienced litigation counsel understand all of the facts involved in a dispute before waiving any potentially applicable defenses in the Answer. The law also requires defendant(s) having claims against any opposing party arising out of the same occurrence as the subject of the litigation to assert those claims in the existing case. These are called Compulsory Counterclaims and must be asserted in the Answer or they may be waived. In some cases, a defendant may choose to file a Motion to Dismiss every before filing an Answer to raise certain defenses that the defendant believes could end the lawsuit without any further litigation.
All parties to a lawsuit (plaintiffs and defendants) have the right to obtain information about the case. The process for doing this is called discovery. Discovery normally starts after the defendant(s) have filed an Answer.
One commonly used discovery device is written Interrogatories. Interrogatories are often the first step taken in discovery after a case if filed. Written Interrogatories are questions served by one party on another party. The questions must be answered in writing within 30 days. Interrogatories generally seek basic information about the parties and the controversy. Attorneys normally forward Interrogatories to their clients and ask them to begin working on draft answers to the written questions. The attorney may then meet with the client to go over their answers and discuss whether or not to assert objections to certain questions. The attorney will then prepare the formal written answer to the Interrogatories and the client will sign the answers under oath.
Requests for Production and Requests for Admissions are also commonly used in conjunction with Interrogatories and, like Interrogatories, must be answered within 30 days. Requests for Production ask the recipient to turn over certain documents in their possession or under their control. Requests for Admissions ask the recipient to either admit or deny certain facts relevant to the lawsuit. Sending and responding to written discovery requests are important steps in any lawsuit. Written discovery helps shape the issues as the case moves toward a trial and what happens in discovery can be of critical importance to the outcome of the controversy.
Discovery can, and often does, extend beyond the parties to non-parties that possess information and/or materials relevant to the dispute between the parties. Subpoenas are used by attorneys to obtain information and/or materials from third parties. Subpoenas are issued by attorneys under their authority as an officer of the court to compel non-parties to provide information and/or materials.
Oral Depositions are another discovery tool used by attorneys. Parties to the case and non-parties (by use of an attorney’s subpoena power) can be compelled to appear before a court reporter to answer questions under oath. A transcript (and sometimes a video) of the questions and answers is made for use in the lawsuit. Oral Depositions are very important since they are under oath and the answers given may be used in front of a judge or jury at trial. Because of their importance to a case, attorneys will normally spend a considerable amount of time preparing for depositions and preparing their client if they are being deposed. Attorneys may also ask their client to be present when they hold depositions to question other parties or non-parties. Any party has the right to be present for any deposition taken in the case and to ask questions of the witness being deposed.
Discovery is a time-consuming and expensive part of nearly every case. It is, however, the primary means of fleshing out the facts and issues involved in the dispute and preparing the case for trial. Discovery is the primary means by which all parties learn about the strengths and weaknesses of their case. As such, discovery is of significant importance to the conduct of the trial and can impact the prospects for settling the case prior to trial.
TRIAL SCHEDULE AND MOTIONS
Once a Petition is filed and all defendants have filed their Answers or defaulted by failing to timely file their Answer, the case can be set for trial. This is done when a party (plaintiff or a defendant) files a Motion to Enter. A Motion to Enter is a formal request for the court to set a trial schedule for the case. The attorneys involved in the case will normally work together to agree on a general timeframe for a trial. They will then communicate this date range to the bailiff that works for the judge assigned to the case. The bailiff will then tell the attorneys what dates the court has available for their trial. Based on the date chosen, the court will enter a Scheduling Order setting forth the deadlines for the parties to exchange certain information (e.g., witness and exhibit lists) and complete certain tasks (e.g., discovery). If the attorneys can not agree on a schedule, the court will consider their respective positions and enter an Order that the court believes is fair and just for all parties.
The parties may be in court for hearings on certain matters related to the case leading up to the time of the actual trial. A party may file a Motion asking the court for some kind of relief in the case. One such Motion could be a Motion to Compel Discovery asking the court to order a party to answer a discovery request. Another such Motion may be a Motion for Summary Judgment asking the court to rule in the filing party’s favor based on uncontroverted facts. A Motion for Summary Judgment may be appropriate if both sides agree on the relevant facts but disagree on the law that applies to the case. These are just two of any number of Motions that may be filed in any given case. When a party files a Motion, the court will set a date for a hearing on the Motion. The court will normally hear evidence (e.g., witness testimony) and argument from counsel at the hearing and make a ruling on the issue. The court’s ruling on a motion may direct a party to take a certain action, prohibit a party from taking a certain action, or effectively end the case (or at least a part of the case).
Shortly before the trial date, the attorneys will meet with the judge assigned to the case in what is called a Pretrial Conference. The purpose of the Pretrial Conference is to acquaint the judge with the issues remaining to be resolved in the case and to make sure that both sides are prepared for a trial on those issues. Some judges will wait until the Pretrial Conference to set the actual trial date. In that case, the Scheduling Order will set the Pretrial Conference date but not the actual trial date.
MEDIATION AND SETTLEMENT
The great majority of cases never result in a trial. Most cases are settled at some point in the litigation process as the facts develop during the Discovery process and the parties assess and re-assess their respective positions. Informal settlement discussions can be held between the parties at any time during the litigation process. A formal settlement discussion, called Mediation, is commonly required by the Scheduling Order entered by the court. Most judges will order the parties to attend Mediation prior to the Pretrial Conference.
Mediation is structured process whereby the parties meet with a trained mediator (usually an attorney with extensive experience in the type of case at issue) in an effort to settle the case. The parties normally meet at the offices of the mediator and assemble for an opening session where the mediator discusses the process and his or her expectations of the process with the parties. Following this opening session, the parties are normally placed in separate rooms for the remainder of the Mediation. The mediator then goes back and forth between the parties to explore their positions and to seek common ground for settlement. The mediation process may last a few hours or an entire day, depending on the nature of the controversy and the parties involved. The parties normally split the cost of the mediator’s time.
If the controversy cannot be settled through informal negotiations or Mediation, the matter will proceed to trial. While preparing for trial is the central focus of the entire litigation process, a flurry of activity will ensue shortly before the trial date(s) as final preparations are made (e.g., exhibits finalized, witnesses prepared, arguments polished).
Insurance coverage can be of central importance in any case. Whether you are a plaintiff or defendant, you may have insurance coverage that is implicated by the controversy. If you are a defendant, you may have coverage that would pay the costs of the lawsuit (e.g., attorney’s fees) or the cost of a settlement or a judgment entered against you. If you are a plaintiff, you may have coverage that would pay you for the damages you are seeking from the defendant(s) and avoid the need for you to be involved in litigation. Regardless of the circumstances, you should thoroughly investigate the possibility of insurance coverage that pertains to your situation. It is imperative that you notify your insurance carrier as soon as you think you may have a claim so that they can conduct their coverage investigation. If you fail to contact your carrier promptly, you may forfeit applicable coverage.
It is absolutely essential that your attorneys have your cooperation in helping to gather facts about your case and in responding to requests from the other party or parties. In that regard, it is important that you notify your attorneys if your contact information changes or if you are leaving town for an extended period of time.
Lawsuits often take a long time to get to trial. It is not uncommon for cases to last a year or longer from the time the Petition is filed until a trial is held or the case is settled. Lawsuits typically involve cycles with periods of intense activity and periods, lasting months in some cases, where there is no significant activity at all. If there is a period of no significant activity in your case, it does not mean that your case is not important to your attorneys or that they are not working on the case. In the lifecycle of every case, there are periods of little or no activity. If you are concerned that you have not heard anything about your case for a considerable period of time, you should ask your attorneys to explain the status of the case and the reason for the apparent lack of any activity.
Any controversy that has resulted in a lawsuit is a serious situation and every aspect of your case must be carefully orchestrated by you and your attorneys. You should not discuss your case with anyone except your attorneys and should refrain from taking any action involving the subject of the case without first consulting with your attorneys. If anyone other than your attorneys or their assistants contacts you about your case, you should politely decline to speak with them about the case (cite the advise of your attorney not to discuss the case) and contact your attorneys to report the encounter.