A lawsuit is started by the filing of a complaint with the clerk of the court. After the lawsuit is filed, the Defendant is sent a copy of the lawsuit and required to prepare a written response to be filed with the Court within a certain number of days (sometimes up to 90 days).
Once the lawsuit is filed, the Defendant may either file an answer responding to the allegations in the lawsuit or he may request that the judge dismiss the case. If the case is dismissed, the case would be over and the Plaintiff may appeal the dismissal. However, most cases are not dismissed at this early state of the litigation. Even though many Defendants file motions to dismiss, most of these motions are denied and the Defendant ultimately files an answer to the lawsuit.
After an answer is filed, the parties begin a process referred to as discovery. Discovery refers to the exchange of information between the two sides of the case. The aim of discovery is for each side to understand what the other side is claiming and all witnesses, documents and evidence that may support the others' case. Both sides are required to comply with discovery requests and be entirely forthcoming with the other side. To ensure this outcome, judges may prevent one side from using evidence that it hid from his opponent during discovery. For example, if one party conceals the identity or location of a favorable witness, the judge may not let him use that witness at trial as punishment for hiding that witness' identify or location from the other side.
Discovery takes various forms:
Interrogatories: These are detailed written questions that one side sends to the other to answer in writing with a certain number of days. These are generally used to obtain names and addresses of important witnesses, nature and amount of damages, and the types of damages sought and defenses raised.
Document Production Requests/Notice to Produce: These refer to a written list of documents and things such as software, and such that one side requests that the other side provide. These are used to obtain personnel files, policies and procedures, software, e-mails, and handbooks.
Depositions: During depositions, lawyers ask questions of witnesses who have to answer under oath. A court reporter or videographer records all of the questions and answers. While one lawyer asks questions, the opposing lawyer would typically make objections to some of the questions. Even though lawyers object to the questions, the witnesses are required to answer the questions unless specifically instructed not to answer. Any objections made are for the record and will be ruled upon by a judge at a later time if the case proceeds to trial
Requests to Admit: These are questions that request 'yes' or 'no' answers. If the person on whom the request is served fails to respond within the allotted time, he is assumed to have admitted all of the requests.
Even though lawyers for the different sides do not always get along, they are required to cooperate and work with each other to resolve any discovery differences or disputes. If the disputes cannot be resolved by the lawyers, the party who believes that the other is not providing adequate responses to discovery can file a motion to compel answers to discovery questions. Before filing the motion, the lawyer must satisfy the judge that he made a diligent effort to work out his differences with the opposing lawyer. The judge will hear both sides and determine whether the questions are proper and should be answered. Judges may impose a financial or other sanction against any party who fails to cooperate with the other in discovery or conceals information from the other. The discovery process takes approximately 6 to 9 months to complete.
After discovery is complete, the Defendant may file a motion for summary judgment. This motion asks the Court to dismiss the case on the basis that Plaintiff does not have a case that can be won in front of a jury. Many Defendants bring this motion regardless of the strength of the Plaintiff's case with the hope that the case does not get to a jury. In determining whether summary judgment should be granted to the Defendant, the judge will review deposition testimony, the employer's policies, testimony of witnesses, and written submissions by the lawyers. In reviewing the evidence, the judge will try to determine whether the Plaintiff, if believed, can win the case if permitted to take the case to a jury trial. If the judge determines that the Plaintiff will not win, he will dismiss the case. If not, he will deny Defendant's motion for summary judgment and set the case for trial. The summary judgment process takes approximately 3 to 6 months, sometimes longer depending on the judge's case load.
A case will proceed to trial if the case is not dismissed by the judge and Defendant's motion for summary judgment is denied. If the case is in federal court and a jury is requested, the judge will set it for a jury trial. For cases filed at the other administrative agencies other than the EEOC, the case will be heard by an Administrative Law Judge with no jury.
Plaintiff is expected to be present each day of trial or hearing. Trial begins with jury selection. The judge and lawyers would interview a pool of potential jurors and the selection process will end with a jury of 6 to 12 persons impaneled. After jury selection, the case begins with the Plaintiff making his opening statements after which the Defendant makes an opening statement. Following opening statements, the Plaintiff will call his witnesses and the Plaintiff's lawyers will question each of them. After each witness is questioned by the Plaintiff's lawyer, the lawyer for the Defendant will cross-examine that witness. The next witness for the plaintiff will then be called. The Plaintiff also testifies at length and is usually subjected to cross-examination by the Defendant's lawyer. After the Plaintiff calls all of his witnesses, he will then rest his case. Defendant will typically move for a directed finding after Plaintiff's case. If the motion is denied, the defendant will begin to call its own witnesses to be questioned by its lawyers and cross-examined by the Plaintiff's lawyer.
After all the witnesses testify, the Defendant would typically again ask the judge to enter a directed finding. This basically request that the judge dismiss the case and not let the jury deliberate and reach a verdict. If the judge grants the motion, the case will be dismissed and the jurors will be released and the case would be over. If the judge denies the motion and lets the case proceed, each side is permitted to make a closing argument to the jury. The closing argument is designed to explain the evidence to the jury and emphasize important aspects of each side's testimony and evidence.
After closing arguments, the jury is taken to the jury room to deliberate and reach a verdict. The lawyers and parties are required to be close to the court house and to return within a short time in the event the jury has a question or has reached a verdict. When the judge is informed that the jury has reached a verdict, he summons the lawyers and the parties to the court house. Once in the court house, the foreman of the jury will read the verdict and announce the winner and the amount of the award. A typical jury trial for employment cases lasts 3-7 days.
After the jury reaches a verdict, a judge may enter the amount of the verdict as a judgment against the losing side. A judge may also overturn the ruling of the jury or reduce the jury award if he determines that justice so requires. After a judgment is entered, either side may appeal the judgment including the jury verdict. There are strict time limits that are enforced with the filing of appeals. It is thus important to be aware of the deadline to file an appeal and be certain to file the notice of appeal and pay the appropriate Court fees timely in order not to lose the right to appeal. An appeal takes approximately 1 to 2 years to complete.