Having been through it, let me say in no uncertain terms that suing someone or more than one party is awful. Not just kind of unpleasant, but more like soul crushingly terrible. If you are going to go down this road, you should try to be prepared for that. I mean, no one can really prepare for it, but at least if your expectations going in are that it is going to be generally pretty terrible to deal with, you should do ok. It’s when you have no idea what you’re getting into that you get blindsided by the awfulness of the whole process.
Litigation is S L O W.
I don’t mean waiting for your tax refund slow, I mean takes years kind of slow. Our case took 2 years and would have taken longer had we not managed to end it without going to trial. If we had actually gone to trial my best guess is it would have been more like 3 years. Lawyers are unfazed by this, because that is the world they live in. It does not seem painfully slow or weird to them. It will to you.
There is a ridiculous amount of paperwork involved.
When you decide to sue, the first thing that happens is that your attorney will file what is called the Complaint document. It has a bunch of legalese, but it also lays out exactly what you are accusing the parties of and what you are asking for, which is generally a trial. This document gets served to all of the people you’re suing and then they have a set amount of time (usually 30 days) to respond to your Complaint.
Then their lawyer sends back a response to your Complaint, which will probably basically say you’re full of crap with your accusations and that they intend to try to get the Complaint thrown out before it even really gets going. Assuming the case is not dismissed at this point, you then get to move on to the next fun stage…
Interrogatories – a word you will wish you never learned the meaning of
Interrogatories are a fancy legal word for questions. Each side will send an initial set to the other side. I would be prepared for them to ask all kinds of stuff that seems totally irrelevant, is really intrusive or is just plain ridiculous. Your lawyer will let you know which questions they plan to object to, ask you to answer what you can and then they will prepare the actual responses that get sent back to the other side’s lawyer(s). The people you’re suing will have to do the same for interrogatories you send them.
Of course, the other side(s) will probably start by just objecting to everything. Eventually, they will answer at least some of the questions you sent. Be aware that there can be multiple sets of interrogatories sent back and forth. Are you starting to see why this all takes so long?
The Interrogatories are part of a larger process called Discovery. Discovery is what is sounds like – both sides basically get to see what the other side has relative to the case. Requests for information can come in different formats, sometimes subpoenas are used. Subpoena is a fancy legal word for “you need to provide what we are asking for”. You could have things subpoenaed and other people involved in the case may receive subpoenas as well. For instance, if you hire a second inspector all of your communications with that inspector may be subpoenaed. Yes, that means every email you send will be read by the people you’re suing. Similarly, your lawyer could subpoena all of the emails between the seller and their realtor. Bank records, records of payments to contractors, etc. all is subject to Discovery.
Depositions – The Tenth Circle Of Hell
After all of the paperwork Discovery is done, if the case is still moving forward, you can look forward to Depositions. What, you may be thinking, is a Deposition? It is a session where you and anyone who testifies is under oath and you are asked questions by the other side(s). It is in a lot of ways a fishing expedition. The lawyers for the other side(s) want to figure out a few different things during a deposition:
- How credible of a witness are you?
- Can you handle intense questioning?
- Does your testimony match what you’ve already said in interrogatories?
Fair warning about Depositions – you will want to punch the lawyers for the other side(s) by the time your testimony is done. Even if they are not snarky or bullying (which the probably will be to at least some degree) you will probably hate them. Your lawyer should jump in if it gets too bad or if they are asking questions that have no bearing on the case and are just designed to upset you. But, the questions they can ask are pretty wide ranging, so you should be prepared for that.
Prior to the actual Deposition day, your lawyer should most definitely prepare you for the questions they think you will likely be asked. They should also practice with you for the pace of how it might go, so you are not caught off guard with that.
The purpose of Depositions is for all the lawyers to get an idea of what you (or any witness) will say if you actually have to testify at some point and what you are like as a witness. It can be hard, but try to remain calm and as business like as you possibly can.
What Happens After Discovery Is Completed?
The answer to this depends a lot on what comes our during Discovery. If your case is still strong after completing Discovery, your lawyer may push for a settlement. I wouldn’t hold my breath on that happening unless something really damning for the other side(s) came out in Discovery. More likely, at this point or somewhat soon thereafter, you will actually get on the Court’s calendar and have a date for trial set. This does not mean necessarily that you will actually get to the trial though.
Once the trial date is set, it does start to up the stakes and get the lawyers moving a bit faster though. At this point your lawyer might suggest that he/she discuss non-trial options with the other side(s). These would be either Mediation or Arbitration. Laws in your state may dictate what can and cannot happen relative to all of this. Your lawyer will (should!) know the ins and outs of your state’s rules.
Mediation Vs. Arbitration
There are two main types of what lawyers call “alternative dispute resolution” typically – mediation and arbitration. To put it most simply, in general, mediation is essentially a structured negotiation where there is a mutually agreed upon mediator who works with the two sides to try to negotiate a settlement. You may or may not actually get to a point where any kind of settlement is even offered with mediation. Mediation is not binding either, meaning that you’re not agreeing to anything ahead of time, you are simply agreeing to get together and try to have a neutral third party help you get to a point that you can agree to and live with.
Arbitration, on the other hand, is typically binding. What that means is that you and the other party(ies) agree in advance to the parameters for the arbitration and then will also agree on the actual arbitrator. The arbitrator is a neutral party who will listen to the arguments of both sides and witness testimony and then make a ruling. If arbitration is binding, then the decision he or she provides is the final say in the matter. If it is not binding, you can then either appeal it or decide to take your chances at trial.
Arbitrations can also be heard by a panel of arbitrators instead of just one.
Our case never made it to trial, but trials by jury are tricky things. There are so many variables in play. Unless you have incredible evidence that is absolutely rock solid in proving the other party(ies) were in the wrong, your lawyer will probably encourage you to find a way to end the case before you get in front of a jury. I would expect, unless you happen to be bringing you case in a jurisdiction that is well known for large awards for Plaintiffs, that your lawyer will really start to tamp down your expectations as to the likely outcome if you have to take it all the way to trial.
Sometimes, a last minute settlement offer can be made on the eve of trial. This does not always happen, but it can. If you do have to go through a trial, I would be prepared for Deposition, but more intense.
There is no way around the fact that litigation is just awful for everyone. It certainly can be necessary, but nothing about it is pleasant. It is best that you know this going into it.