TV shows spread a false notion of a civil litigator: a big mouth who makes passionate speeches in court a lot. Nothing could be further from the truth. If you know the three stages of a civil lawsuit, it’s easy to see what litigation lawyers really do: investigate, design the legal framework of the case, negotiate, and ultimately settle. Most civil litigation is out of court because the two longest stages of a lawsuit are out of court.
Stage one: pleadings
It’s about issues. Pleadings are statements in which parties to a lawsuit accuse and respond. Pleadings accuse of wrongdoing or deny and excuse a wrongdoing. There is no proof in the pleadings, only claims that something happened or didn’t happen as well as legal conclusions and requests for something from the court.
Pleadings are about allegations, not evidence or proof. Saying someone drove through a red light is an allegation. Saying you saw it with your own eyes is evidence. You only put the first in the pleadings, not the second. The purpose of pleadings is tell the other side what you intend to prove later, at trial. In Ontario, pleadings consist of a statement of claim, a statement of defence, and a reply.
You put material (relevant) facts and legal conclusions following from these facts in your pleadings. The legal conclusions must support your request to the court. The purpose of a lawsuit is get a court order. Your facts and legal conclusions, if proven, must give the court the power to make the order you request. Running through a red light is a material fact; negligence is a legal conclusion. You cannot claim negligence in your claim without stating material facts supporting the legal conclusion.
Stage two: discovery
After the parties exchange accusations and responses, the law expects them to exchange all evidence they have to support their accusations and responses. This is discovery. There are two parts to it: documents and questions and answers in person. Both are under oath and both become part of the record of the lawsuit. So the parties can use evidence they discover during this stage to prove their case at trial.
The parties must disclose only relevant documents and answer only relevant questions. Relevance depends on the pleadings, and this is another reason why pleadings are so important. Suppose you allege that someone was negligent because they ran through a red light. Then that person’s political views are not relevant and you cannot expect them to disclose documents or answer questions about their politics. Both the document and the Q&A (known in Ontario as examination for discovery) parts of discovery happen out of court. Parties disclose their documents in sworn affidavits, and examinations under oath take place in private offices.
In theory, after the pleadings are closed and the discoveries are completed, the parties should have a pretty exhaustive idea of what’s going to happen at trial. They know the claim and defence, they know the evidence, they know the law. They should be able to predict what the court will decide fairly well. This is one reason why most civil cases settle before trial. But some do go to the final hearing, either because the evidence is ambiguous or because the law is not fully settled. Or for a million other reasons—we are humans and nothing is ever 100% certain.
Stage three: trial
Expensive. Unpredictable. Fun. TV audiences know only the last part and maybe the second. This is also the first time the court hears the case “on the merits.” In theory, the entire case could continue until this point without any involvement of the court. (In reality, lawyers spend a lot of time in court wrangling over procedural issues.)
Trial is where the parties present their evidence to a judge or a jury. You usually present evidence through a witness who has first-hand knowledge of what happened. Or through an expert who has a professional opinion of what happened, if the issue requires such an opinion. But involvement of humans makes trials unpredictable. No one can be certain what the witness will say and how it will affect this particular judge or jury.
A good civil litigator will conduct the first and the second stages of a lawsuit as if the trial was unavoidable. A potential loss at trial is a powerful incentive for settlement. (Unfortunately, the cost of trial and pre-trial procedures is another strong incentive.) If you build a strong case for trial during pleadings and discovery, it’s irrational to go to trial.
Of course, this is only a superficial summary of what happens in a lawsuit. I ignored motions, mediation, and small claims court (where discovery is really limited). I probably ignored a few other important points. But the idea is that the ability to design a trial through pleadings and discovery is an important skill. Once the lawyer makes this blueprint, it’s usually not necessary to build the actual house. And certainly, real trial experience is gives an edge during the first and second stages.