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What will happen if I file a case? What is the process? How long will it take? These are questions frequently on the minds of potential litigants. And this is no surprise. Our court system is foreign not most people, including many lawyers. And most people who contact us for help have never been involved in a lawsuit and never imagined that they would be. The answers to these questions are not simple.
Different kinds of cases have to go through different processes. Certainly, a car accident is handled differently than a divorce. But even within the confines of labor and employment law, depending on the kind of case you have, there can be vastly different procedures.
Settlement
Every case can start with negotiations. If we can settle your case without filing it, we save you time, money, and emotional energy. Often a case cannot be settled immediately. That’s okay because settlement negotiations can take place at any stage of litigation (even after trial) and as a case progresses the parties get more and more information which can lead to settlement. In the end, roughly 90% of cases do settle, the only question is when?
Investigation
Employment discrimination claims are started by filing your case with the Equal Employment Opportunity Commission or the Illinois Department of Human Rights. These agencies will do an investigation of your case. Each one has different procedures which are discussed on our EEOC and IDHR page. Once a case leaves the EEOC, you have 90 days to file a lawsuit in Federal Court.
Filing a Lawsuit
Claims under the Family and Medical Leave Act or claims for unpaid overtime do not go through EEOC, but can be filed directly in the Federal Court. But whether your case is a discrimination case coming from the EEOC, or one of these others, the first step is to file a “Complaint”. When you do, you become the “Plaintiff” in the lawsuit. Your complaint is the document that tells the court what your claims are. You can file a lawsuit and a complaint “pro se” (without an attorney). The forms are available at the clerk’s office at the courthouse. However, we usually advise clients to have an employment lawyer prepare the complaint because the form complaints still require you to write a portion of your story. The court will randomly assign you a judge and you will have 120 days to serve your complaint on the company you are suing, the Defendant. NOTE THAT IF YOU HAVE A LAWYER, THE LAWYER WILL HANDLE EVERYTHING ALMOST EVERYTHING THAT FOLLOWS.
Answer or Motion to Dismiss
Once the defendant gets the complaint it will either file an answer, responding to each paragraph of the complaint, or a motion to dismiss. The motion to dismiss is a motion asking the court to rule in the employers favor for the simple reason that the complaint is does not contain enough information to show a violation of the law. The judge may disagree with the defendant and order it to file an answer. If the judge agrees with the defendant he (or she) will usually give the plaintiff an opportunity to fix the complaint if that can be done.
Sometime after the complaint has been filed, the judge will automatically set a scheduling conference for which the parties (plaintiff and defendant) by their attorneys must come to court and the judge will set dates for all of the steps that follow. There will be a date for the completion of discovery, a date for dispositive motions, and maybe even a date for trial.
Discovery
There are four pieces to discovery. The first is the disclosures. In this first step, each party is required to give a list of the witnesses and documents each believes will support its case. In addition, the Plaintiff will give to the defendant an estimation of how much money the plaintiff believes he is owed and the defendant will identify for the plaintiff any insurance policies that may cover the claim. The second piece is the interrogatories. Interrogatories are written questions that each party gives to the other to be answered in writing and under oath. The third piece is the document requests. In this piece, each party asks the other to provide for inspection or copying (usually copies) of specific categories of documents. For example, the plaintiff might ask for his personnel file or the personnel file of some other person who the plaintiff believes was treated more favorably. Up to this point, most of the work is done by the lawyers though your lawyer will be asking you to help her to answer written questions and to identify documents. The last piece of discovery is the depositions. A deposition usually takes place in a lawyer’s conference room and the lawyer will ask questions of a witness while a court reporter records all of the questions and answers. It is similar to testifying at trial except that there is no judge or jury. As the plaintiff, you will probably have to give a deposition, but of course, your lawyer is with you at the time. (There is one other piece of discovery called a request for admission, but that is not commonly used. A request for admission simply asks the other party to admit or deny certain statements.)
Dispositive Motions
After all discovery has been completed, either party might file a “Motion for Summary Judgement”. This is a motion which says that given all of the documents in the case and all of the testimony in depositions, it appears that the parties do not disagree on the important facts and based on these agreed facts, the judge can rule as a matter of law in favor of the party making the motion. If the judge believes that there is disagreement on an important point then it is up to a jury (or if you have not asked for a jury, for the judge) to hear the testimony of witnesses to decide who is telling the truth. This is done at a trial.
Pre-trial Order and Trial
Most cases settle before going to trial. But if the case does not settle, the parties are required to file a large document with the court called a pre-trial order. The pre-trial order sets all of the rules for the trial. It includes a list of witnesses who will testify, documents that will be used, and includes the proposed jury instructions. The judge will review the pre-trial order and will give final approval to the rules for the trial that he believes follow the law.
For jury trials, there are five steps. First, the parties will pick a jury. This means that the judge or the lawyers or both (it depends on the judge) will ask questions of the jurors to make sure that they can be fair. The next step is the opening statements where the lawyers will tell the jury what they expect the evidence to be. This gives the jury a preview of the case. Step three is the testimony of all of the witnesses. Step four is the closing arguments where the lawyers tell the jury why they believe the jury should rule in favor of their clients. And step five is the reading of the instructions to the jury. The jury will then go to the jury room to consider its verdict.
After the jury rules, either party can ask the judge to change the ruling if it believes the jury was unreasonable. The judge may reduce the amount of money awarded, may order a new trial, or may change the verdict. Generally, the judge will only do this in exceptional circumstances.
Appeals
At the end of the case, either party can ask that the court of appeals review any of the judge’s decisions if that party believes that the judge made a mistake. This is done by filing memorandums with the court of appeals and then eventually a 10 to 20 minute argument before a three judge panel. The judges will usually take the case under advisement and prepare a written opinion several months later.
Because a case can settle at any time, and because different judges handle their calls differently, it is difficult to predict how long a case may take. But for those few cases that actually go all the way through a trial, they can take anywhere from two to five years, averaging about three. In addition, while this page has discussed most of the potential steps, rarely does a case go through all of them and many are skipped. But if you are going to pursue a Federal case, you do have to take it seriously.
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