The reader may have idealized notions regarding the American justice system, although that would be rather naïve in this day and age. The general consensus is that if we go to court then justice should be done and the appropriate parties will be penalized and remunerated. Only discussing the civil court system at this point, we expect that a business or personal dispute will receive a full review and a fair and just resolution, under the watchful eye of the judge and the integrity of our peers the jury. Well let me dispel these romantic notions for you: American “justice” is a business first and a dispute resolution processes a distant second.
Basically, the litigation journey generally begins with a substantial deposit with your attorney who will then draft a petition or complaint, usually a lengthy and time consuming process. Then the defendant will do the same, your attorney will review the defendant’s pleading or answer billing more fees, and continue to prepare for the suit, at this time your legal bill may run in the $3-$5k range for a small law suit, and this is just the beginning of the process. No hearings have been held and no settlement discussions have been had, and you’re already out thousands.
After this the discovery period will begin, which is a time frame that allows the parties to obtain evidence favorable to their claim from the other side. Each side will send written questions to the other, demand production of documents, hold depositions of the other side and any relevant 3rd parties to the litigation; this is a very expensive process as both sides have to review all the documentation and be present at all the depositions, which can take half or a full day and must be recorded. Most attorneys will bill for travel time. All this plus constant communication with their respective client including meetings, emails, and calls add up to thousands more in fees. No movement in your case has yet occurred, the client is no closer to a resolution, and he/she may be out approximately $10k-$20k or even much more depending on the case, during the discovery process.
A very common tactic used by attorneys is filing numerous motions, whether frivolous or not, to delay the case. They can be successful in delaying the case for years; it’s called motion practice. A motion could be filed for absolutely anything, including items such as a motion to dismiss, continuance, to have some piece of evidence thrown out or a dispute whether something needs to be produced, or a motion for a hearing on any number of evidentiary and discovery matters. These motions, answers/responses to the motions, and the hearings that must be held on each one can run into many thousands of dollars and delay the case almost indefinitely. Many plaintiffs quit at this stage and cease prosecution of their suit; it is common to run out of funds to pay the legal costs at some point.
At this stage a motion may be made for an order for mediation or settlement discussions, more delays may occur due to motions pertaining to such alternative dispute resolution. Once mediation is set the costs are split by the parties but each party pays for its own legal counsel: this may be a 4-8 hour process or even multiple days, plus the mediator fees. Then one of the parties will draft the settlement agreement and other documents. This process is also quite time consuming. As you can see merely settling the dispute could run into thousands. But let’s say mediation fails, then the discovery process continues and a jury must be selected, another full day or longer process.
Trial can take a day to a week or weeks, depending on the nature of the dispute and amount of evidence to be presented. This makes trial a possibility in matters which generally involve over $50k in dispute, otherwise one would spend $10k-$30k on fees on a minor matter to win or lose potentially the same amount. Generally the more complex the legal dispute the more legal fees will be involved.
Now, let’s assume that the right party wins the litigation, after spending a luxury car’s worth, a verdict is finally entered in favor of the plaintiff and payment in the amount being demanded is ordered, well its not over yet, now the ‘victor’ has to actually collect on the judgment, a totally separate and the most difficult process of the litigation. Most attorneys won’t tell you that you are unlikely to collect anything, and your judgment will expire worthless in 10-20 years after being recorded. More on this in future posts.