Civil Litigation: (Not) As Seen on TV
posted in: Civil Litigation
We’ve all seen the courtroom spectacle of primetime television and Hollywood films, full of drama and neatly concluded within one or two hours. In real life, suing and being sued isn’t normally so quick or dramatic. Instead, it’s a lengthy, tedious process that requires great attention to detail.
This blog will discuss the basics of civil litigation and set out the steps of the litigation process. Please note that this blog is for informational purposes only and is not a substitute for legal advice. Contact the litigation team at KMSC Law to discuss any civil litigation questions you may have.
What Is Civil Litigation?
Our legal system is divided into criminal and civil law. “Civil litigation” is a term for the legal process that applies to non-criminal matters. This process resolves disputes regarding many different types of law, including family law, environmental law, product liability disputes, real estate law, intellectual property, employment law, and more.
Civil litigation differs from criminal law in three fundamental ways. First, whereas criminal charges are always laid by the government against an individual, civil litigation can be between any two parties, be they people, business entities, or government agencies. Second, to win a civil case, either party only has to prove their argument is probably true, whereas in criminal cases the government must prove the defendant is guilty beyond a reasonable doubt. And third, whereas criminal cases may result in prison time, civil cases result in financial penalties, settlements, or an order that one party perform a specific action.
The Civil Litigation Process
The litigation process is complicated and can take several months to several years, depending on the complexity of the dispute.
Step #1: The Dispute
Every lawsuit begins as a dispute, but not every dispute needs to become a lawsuit. Before two people engage in a lawsuit, they should try to resolve the dispute themselves: avoiding the legal system will always save time and money. If you’re the aggrieved party, consider sending a letter to the other party detailing how they have wronged you and what you would accept to settle the dispute. This letter should also state that you may otherwise file a civil claim against them.
Step #2: Filing a Claim
If the parties cannot resolve the dispute, the plaintiff (the person wronged) may turn to the justice system. The plaintiff will hire a lawyer, who will file a Statement of Claim with the appropriate court. The Statement of Claim details the nature of the claim, the relevant facts, the amount sought as compensation, and must be filed within two years of the date of the dispute’s inciting incident. The respondent (the person who allegedly wronged the plaintiff) will respond with a Statement of Defence, most likely denying the claim.
Step #3: Disclosure and Discovery
After the parties trade the initiating documents, they will exchange all documents relevant to their claim. This is called “disclosure.” Sometime after these documents have been exchanged and reviewed, the parties will proceed to questioning. During this process, which is also called “discovery,” the counsel of each party will ask the opposing party questions about the dispute.
The disclosure and discovery portion of civil litigation is the most labor-intensive. Though most civil litigators (outside television) spend little time in the courtroom, they spend much more time gathering and evaluating the evidence and statements obtained during disclosure and discovery.
Step #4: Settlement
Before heading to court, the parties may settle the dispute via Alternative Dispute Resolution (ADR) methods. ADR can take many forms, ranging from simple negotiation between the parties and their lawyers to arbitration and mediation. In mediation, a third party facilitates a conversation between the parties in hopes of reaching a settlement. In most civil litigation cases in Alberta, parties must undergo mediation before they go to court. This policy is called “mandatory mediation.” Arbitration, contrastingly, is more like a trial: both parties present their arguments to the arbitrator, who makes a decision that is binding on the parties. Although we have listed settlement as the fourth step, it can happen at anytime during litigation.
Step #5: Trial
When all other methods of resolving the dispute fail, the parties may go to court. This process includes filing the appropriate forms and paperwork, arranging witnesses, and setting a trial date. Once both parties have presented their evidence and arguments, the judge will decide how to resolve the dispute.
Step #6: Appeal
Once the judge makes a decision, either party may appeal the decision if they have valid grounds to do so.
How KMSC Can Help You
The litigation team at KMSC can guide you through the litigation process. Our lawyers can represent you with the best legal arguments and help you consider your ADR options. If you think you have the grounds to bring a lawsuit against someone who has harmed you, or if someone has brought legal action against you, contact us today. We help claimants pursue their claims and respondents defend the claims made against them. Though COVID-19 may be keeping you at home, we have the video and teleconferencing ability to advise you on your legal issues remotely.