Litigation FAQs

Frequently Asked Questions

- What is the litigation process?

- Can I represent myself

- What do I do if I want to represent myself in Conciliation Court?

- Why is litigation so expensive?

What is the Litigation Process?

The first step in litigation is to have formal documents prepared that frame the legal issues for the court. The person who starts the litigation is called the plaintiff and the plaintiff states what his or her claim is in a document called a complaint. The person being sued is called the defendant and the defendant responds to the complaint in a document called an answer. The answer may also include affirmative defenses. Defendants may also assert a claim against the plaintiff by a counterclaim and against other defendants by a cross claim.

Once the issues have been formed by these initial pleadings, the litigation moves into a process called discovery. During this process each side asks written questions (Interrogatories) and requests to see the other side's documents (Document Requests). Information held by third parties is obtained through subpoenas. Depositions are taken.

At some point, the court will probably require that the parties meet to see if the case can settle. This is called mediation. It is usually wise to wait to do mediation until at least some discovery has been done. However because discovery is expensive, sometimes the mediation is scheduled either before discovery or before discovery is completed. Other alternative dispute resolution mechanisms like arbitration or a combination of mediation and arbitration may be more appropriate to your case.

If issues arise during litigation, the way those get addressed by the court is by one side bringing a motion. Normally the other side gets notice of any hearing and a chance to respond to the motion. If one side thinks that there are no fact disputes, only legal issues, they may make a motion for summary judgment. Such a motion is a very serious matter. If the motion for summary judgment is granted, there will be no trial.

If the case has factual issues that need to be resolved, the matter will proceed to trial after discovery and mediation are completed. Facts in a case can be decided by a judge (bench trial) or a jury (jury trial). If the facts are being decided by a jury, the judge still decides the legal issues. Jury trials are much more labor intensive and expensive because the jury has to be instructed by the judge on the law. The jury must be selected using a process called voir dire. The courts have to be more careful with the process in order to make sure all the rules are followed.

If you are unhappy with the result of a trial, you may be able to appeal the decision to the Minnesota Court of Appeals. The time period for doing this is short and there may be a motion that should be made before the actual appeal. So, you need to decide quickly if you are going to appeal. The Court of Appeals does not retry the case but rather reviews the case looking for mistakes of law. If you are unhappy with the Court of Appeals decision, you can ask the Minnesota Supreme Court for review. Tarrant & Liska, PLLC does not handle appeals but we can refer any clients to competent attorneys who specialize in appellate work.

Can I represent myself?

You have a constitutional right to represent yourself. However, that right does not include representing others, like your spouse, children or your closely held corporation or LLC.

Whether you should represent yourself is a different question. Conciliation Court (sometimes called Small Claims Court) is a court that is designed to allow persons to represent themselves. So, if the claim you wish to assert or that is being asserted against you is in Conciliation Court you should be able to represent yourself. The claim has to be under $7,500 or if it is larger, you have to accept the fact that the most the court can award you is $7,500. The idea is that people need to have a way to resolve disputes involving relatively small amounts without having to hire attorneys.

Cases in District Court are another matter entirely. There are rules of procedure and evidence that apply. It is difficult for a non-lawyer to adequately learn what needs to be done. The judge will not be able to tell you what to do. The judge is there to hear the case, not to act to protect one side or the other. However, with enough effort, people have successfully represented themselves in District Court. The legal system was designed by people and is capable of being learned.

What if I do want to represent myself in Conciliation Court?

As discussed in the earlier question, Conciliation Court is designed to allow people to represent themselves. The Court itself publishes a brochure to help you and most metro area counties also now have a self help bureau that can assist you. Tarrant & Liska, PLLC is also willing to be hired just to advise you without being hired to handle the whole process.

Keep in mind that the judge will have a limited amount of time to hear your case. You are trying to educate the court and persuade the court all at the same time. Being organized and having copies of your documents ready to show the court and the other side is very important. Each side will have a chance to speak and you each can ask the other side or the other side's witnesses questions after they have testified.

It is perfectly acceptable to have an outline of what you want to say. Having paper and pen to take notes on what you want to say while the other side is testifying is also a good idea. The procedure is for each side to testify without interruptions and having a way to jot down your comments or points can help you not interrupt the other side.

If you need someone to be present, there is a process by which you arrange that to happen. You have to ask the court to issue a subpoena and you have to arrange to have that subpoena served on the witness usually several weeks before the court date. You also have to offer the witness a witness fee and mileage and if you are asking them to be present because it relates to their work, you may have to pay their normal hourly rates.

There will be mediators present in Conciliation Court in case you and the other side want to explore settlement. There is nothing lost by trying. If you do settle, make sure that the agreement is reduced to writing and also summarized for the court on the record. If any action is going to take some time to accomplish, make sure you have provided for a consequence if the other side does not do what they promised to do. The mediator should be able to help you think of and describe such consequences.

Why is litigation so expensive?

Litigation is fighting which is always an expensive way to resolve problems. Litigation is also very labor intensive and you are paying $100-$400 an hour for that labor. The cost of litigation has also increased because of reforms that have been built into the system over the years. Back in Abraham Lincoln's day, litigation involved both sides showing up before the judge and telling their story. Some commentators described this as trial by surprise because you did not really know what the other side was going to say until they said it. So, the discovery process was added to litigation. More recently, reformers added a requirement that all cases go through an alternative dispute resolution process like mediation or non binding arbitration. Both reforms are good ideas but they have also increased the cost of litigation because now the attorney has to get ready several times during the course of the litigation, not just once.

You do have some (but less than complete) control over the cost of the litigation. There may be options on ways to handle the litigation that will make it more or less expensive. Tarrant & Liska, PLLC bills monthly, in part so that you can see how much the process is costing and therefore make better decisions on how you want to proceed. We are also very open to discussing how much the process is costing and how that fits in with your goals.

In deciding whether to litigate, it is also important to keep in mind that the legal system is mostly limited to economic issues. The usual relief awarded is a dollar judgment. Although the legal system tries to be fair and just, you will find that it does not deliver much emotional satisfaction.