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So You've Just Been Sued: A Primer On The Legal Process

A Brief Guide to the Legal Process

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Like most of the writers at SBNation, I'm not a journalist; I'm a lawyer who happens to really love sports.  If there's one thing my day job has taught me, it's that most people don't know what happens in civil litigation until they're part of a lawsuit.  Now that Auburn has been sued by Sunny Golloway, I'd like to give the Family a guide to the legal process so you can have some idea of what to expect.  Out of professional courtesy to all involved, I'm not going to opine on the merits of the case.

The Complaint

Every lawsuit starts with a complaint.  Sunny's complaint can be found here.  In the complaint, you don't have to state every fact you intend to rely on at trial but you have to include enough facts to make it plausible that you could win your case.  At the end of the complaint, you list the legal theories or claims on which you hope to recover.

Sometimes, a plaintiff has a choice of what court it wishes to file suit in.  Here, Sunny probably could have sued Auburn in either state or federal court because no defendant lives in Oklahoma where Sunny lives and Sunny is seeking more than $75,000.  Usually, plaintiffs prefer to file in state court because there are laxer pleading rules and state court judges tend to let more cases go to the jury.  Golloway apparently prefers federal court (which will likely try the case in Montgomery) to state court (which would have been the Lee County Circuit Court).

The Motion to Dismiss

OK, so you're Auburn University and you've been served with this complaint that you probably think is meritless.  What do you do?  You have two basic options.  You can (1) file a motion to dismiss or (2) answer the complaint.  Most defendants file a motion to dismiss.  Motions to dismiss are rarely granted but, if you win the motion to dismiss, it can end the case.

Here's the catch, you can't come out in a motion to dismiss and say like My Cousin Vinny, "everything that guy just said is bull."  For the purposes of a motion to dismiss for failure to state a claim, you have to assume that everything in the complaint is true, even if you have really strong evidence that it's a lie.  You can't submit evidence on a motion to dismiss unless it was either attached to or heavily referenced in the complaint.  The reason for this is that a motion to dismiss is designed to test the sufficiency of the allegations, i.e., if we believe everything the plaintiff says, would his allegations be enough for him to win at trial? Sometimes one or two of the claims are dismissed and the rest are allowed to go forward.

In addition to a motion to dismiss for failure to state a claim, a defendant can challenge the court's jurisdiction or compel arbitration.  A defendant may also move to strike portions of a complaint if they contain facts that aren't really pertinent to the claims before the court but are instead designed to embarrass the defendant.  There are a lot of different options here but these are some of the most common.

It's hard to say how long it will take the court to rule on the motion to dismiss.  The motion to dismiss may be decided after a few weeks; it may take a few months or even longer.  I once had one sit for nearly two years but that's extremely rare.

The Answer and Counterclaim

If the case is still alive after the motion to dismiss (and most cases are alive in whole or in part after the motion to dismiss), it's time to file an answer.  In the answer, a defendant will go line by line through the complaint and admit or deny the facts alleged therein.  The defendant will also list any defenses it intends to raise in the case.  Finally, the defendant may decide to bring its own claims against the plaintiff (this sort of lawsuit is called a counterclaim) or a co-defendant (called a crossclaim).


After all the complaints have been answered, it's time to get into discovery.  Discovery is the part of lawyering they don't show on tv.  It's also what takes up most of a young lawyer's time.  In discovery, you ask the other side for documents related to the claims before the court.  You ask questions of the other side through interrogatories to flesh out their claims.  You ask the other side to admit certain facts to be true.

Then, you sort through everything.  The amount of documents varies wildly from case to case.  Some cases yield only a few dozen or maybe a few hundred documents.  An average commercial litigation case could have several hundred thousand documents.  In large cases, the data can't be measured in terms of pages, but in terabytes of data (one terabyte of data is about is estimated to be the amount of paper that could be produced from 50,000 trees).  Reviewing these documents takes a lot of soul-killing hours but by the end, if you work hard, you should know what happened better than the people who are actually involved in the suit.

After you've sorted through the documents and found the best ones, it's time to take the deposition.  In the deposition, you get to directly question the opposing party and other material witnesses.  Everything said at a deposition is under oath and can be used later in the case as evidence or to impeach the witness if the story changes.

Discovery, brief writing, and legal research are the most time-consuming parts of a case.  Most of the action in litigation happens in a quiet office, far away from a court room.

Summary Judgment

Once all the depositions are done and the other discovery is complete, it's time to file a motion for summary judgment.  By the time summary judgment comes around, the facts in the complaint aren't really important anymore.  In a motion for summary judgment, the parties present all the evidence to the court and claim they are entitled to judgment as a matter of law.

If the court finds that there are no disputed, material facts, it could enter judgment in favor of one party or another.  If the court finds that the parties still disagree about important facts or that both sides have evidence supporting their arguments, the court will allow the case to proceed to trial.


Generally at this point, the case settles before it tries.  If the parties can't agree on a price, the case goes to trial. Before trial, each side identifies their witnesses and exhibits and exchanges their lists with the other side to avoid surprise.

The parties will select a jury by interviewing a large group of people.  There are different rules on how a jury is struck but generally, each side takes turns removing one juror from the pool at a time until you reach the final pool.  That jury decides the case.

So, How Long Does This Take?

If the whole process runs smoothly and there are no unforeseen delays, a case like Sunny's will likely be tried in 18-24 months.  Ideally, Sunny would probably like to try the case in 9-12 months.  Usually, defendants like to drag the process out as long as they can.  Plaintiffs want to move fast and collect fast.  Defendants view any day where they haven't paid money as a good day.  It's the nature of the game.

A case like this could settle at any time but usually it will happen at one of several junctures: (1) shortly before or after the complaint is filed; (2) before discovery starts; or (3) after the motion for summary judgment is denied.  If it doesn't settle in the next 4 months, I would expect the case to be around for a 12-18 months or more.