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A lawsuit is typically divided into three (3) parts, the pleadings part, the discovery part, and the trial part. There may also be appeals. In addition, there is usually some motion practice in most cases. A very short explanation of each of these stages would, we think, benefit the reader.

1. The Pleadings Part:

These typically consists of a Complaint, an Answer (which may contain Counterclaims) and a Reply to the Counterclaim(s).

The Complaint sets forth the matter(s) complained of, and the Plaintiff’s monetary or other demands, organized in one or more cause of action, See "Basis of Liability", above at page 3.

The Answer typically denies most of the matters asserted in the Complaint, and in particular, the Defendant’s liability therefor. Sometimes the Defendant asserts Counterclaims in its Answer.

A Counterclaim is a claim made by the Defendant against the Plaintiff within the same lawsuit. In New York, a Counterclaim may relate to the matter Plaintiff sued for (e.g. Defendant incurred damages because Plaintiff’s goods arrived late), or a Counterclaim may be wholly independent of the matter sued upon.

If Defendant has asserted any Counterclaim, Plaintiff must serve a Reply, typically denying Defendant’s Counterclaim.

2. The Discovery Part:

New York allows broad discovery allowing the litigants to obtain from each other, as well as from any other person upon notice, any evidence (letter, documents, or oral testimony) material and necessary in the prosecution or defense of the case, regardless of the burden of proof. This broad standard is subject to certain technical exceptions including for evidence that is privileged, or that is the work product of either of the attorneys in the case.

Our office typically starts the discovery process by seeking from the other side all relevant documents (Request for Production of Documents).

Subsequently, we draft specific written questions (called Interrogatories) seeking to elicit critical evidence. Defendants sometimes offer inconclusive or evasive answers to Interrogatories.

Finally, we typically conclude discovery with the deposition of the Defendant. A deposition is a question-and-answer session which generally takes place at the deposing attorney’s office.

At the outset of the deposition, a stenographer puts the witness who will testify, under oath. The attorney proceeds to question the witness in order to prove his/her client's case at trial. The emphasis at the deposition is usually on:

1. Who agreed to what, upon what terms including what price, when, and with whom;
2. Questions about the documents obtained from the party being deposed (or from another source) during the discovery process; and
3. Clarification of the party’s responses (if vague or inconclusive) to the Interrogatories.

The Defendant who has appeared by an attorney is always represented by its attorney at the deposition. A Defendant or a Plaintiff who refuses to answer questions at a deposition, risks severe damage to its case or defense in the lawsuit in the form of appropriate court sanctions.

While some of our clients in the NY metro area choose to be present at the deposition of the opposing party, this is not necessary as by law they cannot interject comments, ask questions or effectively participate at the deposition, except through their attorney.

Some depositions last a few hours, others a few days (always with breaks as needed), depending on the quantity of the evidence to be covered, the witness being questioned, and the thoroughness of the attorney conducting the deposition.

After the completion of discovery, the Plaintiff will file a note of issue, which puts the case on the trial calendar of the Court. In New York, Civil cases are tried in the order in which notes of issue have been filed, except that certain cases are allowed to "jump the line" by reason of a special preference. Those cases that are allowed a special trial preference allowing them an earlier trial date, include cases where a party is 70 years old or older, or where the interests of justice will be served by an early trial, or where the law otherwise specifically so provides.

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3. The Trial Part:

The trial is generally the most climactic part of the case. At the trial, both sides attempt to convince the judge or the jury (whoever has been chosen as the trier of fact) that they should win.

The reason for a trial, is that there remains open issues of fact on which a determination is needed to ascertain liability or other issues in the case. At the end of the trial, if the Plaintiff has prevailed, a judgment is entered in Plaintiff’s favor.

Generally, a Plaintiff prevails at trial when:

1. Plaintiff has satisfied its burden of proof with respect to what Plaintiff has alleged in the original Complaint; and

2. Defendant has not been able to satisfy its burden of proof with respect to its defenses as alleged in Defendant’s Answer.

At the trial, each side makes an opening statement. Next the Plaintiff introduces its witnesses, and the Defendant’s attorney may cross-examine them to weaken their testimony. Sometimes the judge forgoes the parties' direct examination in Court of their own respective witnesses, instructing that the direct examination be not oral but through Affidavits (i.e written sworn statements).

Following the introduction of all the evidence Plaintiff has to offer, Plaintiff will "close" its case. After the Plaintiff has "closed" its case, the Defendant introduces its own witnesses, and the Plaintiff’s attorney may cross-examine them. Finally, each side closes (i.e., presents a closing argument) summarizing and weaving together the evidence submitted, to convince the trier of fact to rule in his client’s favor. There are also applications to the court (i.e., motions) during trial and after trial, but they are beyond this short guide.

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4. Motion Practice:

At some stages of the case, either party may apply to the Court for an Order by preparing and filing a "motion". What attorneys call a "motion" is simply an application by any party (and sometimes by a non-party intervenor) to obtain a specific Order of the Court. The party making the motion must establish to the Court that it is entitled to such an Order.

A movant (party making the motion) typically establishes its entitlement to the Order being sought by submitting to the Court, a proposed Order, one or more affidavits, an affirmation, and a legal brief setting forth the relevant law.

The party opposing the motion also typically submits opposing affidavit(s), an affirmation, and a legal brief.

An affidavit is a sworn written statement by someone --sometimes the client, sometimes third parties--having first-hand knowledge of the facts alleged.

An affirmation is the attorney’s sworn statement reciting the relevant facts entitling his/her client to the specific relief now being sought.

A legal brief sets forth all the law applicable to the particular motion now being presented as to which the movant now seeks an Order.

For example, assume the Defendant has not provided to Plaintiff, the evidence requested during discovery. The Plaintiff may -after having unsuccessfully tried to obtain the information from Defendant’s lawyer- apply to the Court for a conditional Order obligating the Defendant to either provide the discovery within a certain number of days or to loose the case. In New York, lawyers must before making a discovery motion, first attempt to in good-faith resolve their discovery dispute. Some Judges require that the parties first attempt to resolve their discovery disputes by means of a conference with the Court, others that the Court's permission be obtained prior to making a discovery motion.

Under New York Supreme Court practice, the Judge presiding over the case has sixty (60) days from the date the motion is submitted within which to rule on it. The Judge can issue a decision asking the parties to "settle" (i.e agree) on a final Order, or she can issue her Order disposing of the motion.

You should also know that New York allows a second shot at a motion in the form of reargument and renewal motions, provided they are timely filed.

Briefly, in a reargument motion, the movant party attempts to convince the Court to change its Order, but introduces no new evidence.

On the other hand, in a renewal motion, the movant party does introduce new evidence, but must present a sufficiently valid excuse as to why the evidence was not initially submitted with the motion papers.

This firm in accordance with its ethical responsibilities, believes that the least possible motion practice (sometimes a rare chance at summary judgment, see below, is too good to pass up) best serves the client’s interest, and least clogs an already overburdened judicial system. However sometimes, there is no simply no choice at avoiding motion practice, as a motion by the opposing side must be responded to, or it is defaulted, i.e the movant will by default, generally get the Order it sought.

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5. Motion for Summary Judgment:

Also in cases where the liability is clear and open-and-shut, and where there are no disputed issues of fact, either side may apply to the court for an Order granting early judgment (called "summary judgment"). You should think of this motion as a fact-finding motion: If there are open facts in issue, the judge should normally deny a motion for summary judgment as it is for the ultimate trier of fact to decide on open factual issues, one way or another.

If successful, an Order granting summary judgment early in the case, swiftly terminates the litigation, subject to appeals and reargument and/or renewal motions. Such an Order would save Plaintiff considerable legal fees: There would be neither the need to conduct expensive discovery, nor the need for a time-consuming trial.

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6. Appeals:

New York has a liberal Appellate Practice allowing the appeal to a higher court, of virtually every Order made by the Judge in the case. However, if Plaintiff has been successful at the trial, Defendant must post a Bond in order to prevent Plaintiff from enforcing the judgment against Defendant’s assets. Companies that issue Bonds evaluate the Judgment-Debtor's creditworthiness and may require the Judgment-Debtor to post in cash the exact amount of the judgment, or they will not issue their Bond.

SETTLEMENT OF THE LAWSUIT