Understanding Legal Advocacy & Litigation

We believe in taking on causes that touch upon matters of importance to the public at large. We provide our time to tackle issues where access to legal services would otherwise be limited or unavailable. We review these types of requests for legal assistance on a case-by-case basis. Typically, the cases we focus on include consumer protection, elder and other vulnerable populations, and LGBT issues.

Based on our experience in legal aid and in litigation, we find it helpful to give the public an understanding of the legal and, specifically, the court process. Many disputes that need to be brought to a court can be brought by self-represented litigants or pro se litigants and resolved without an attorney. However, there are types of actions where attorney fees are recoverable, which motivates attorneys to handle these cases on a contingency fee basis.

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Legal and Court Process Resources

Below are resources for understanding the legal and court processes. Some of these groups provide direct representation.

  • https://www.cvls.org (Chicago Volunteer Legal Services—Provides legal services and information on a wide range of issues impacting poor and working poor citizens)

  • https://www.gclclaw.org (Greater Chicago Legal Clinic--Provides legal services throughout the Greater Chicago area)

  • https://www.cdelaw.org (Center for Disability & Elder Law—Focuses on legal aid for issues involving the disabled and elderly)

  • https://www.dupagelegalaid.org (focuses on legal aid services to those in DuPage County or with a DuPage County matter)

  • www.pslegal.org (Legal Aid services to 36 Illinois counties)

If you are involved in a court matter, below is general information about the process. Each court has its own rules and procedures. Courts hold self-represented litigants to understanding and adhering to the rules.

Lady Justice statue on lawyer's desk.

Filing a Complaint

When an individual decides to file a lawsuit, he or she must initiate proceedings by filing a complaint in state or federal court (depending on the applicable law). The individual filing the complaint becomes the plaintiff in the lawsuit. The party against whom the suit is filed—the employer or other adverse party—is referred to as the Defendant.

The complaint contains a description of the parties, why the court has jurisdiction to hear the claim, the type of claim, and the details that support each claim. Illinois courts require ”fact pleading,”le federal courts require only “notice pleading.”

Fact Pleading vs. Notice Pleading

Fact Pleading sets a high standard and requires the plaintiff to plead with particularity and detail all the elements, facts, and examples of the legal claims of the complainant. Notice Pleading, on the other hand, is a more forgiving type of pleading where one must plead only enough facts to place the defendant on notice of what claims the plaintiff is asserting.

When the plaintiff files his or her complaint with the court, a copy of the complaint is also served upon the defendant by the sheriff or a registered process server.

Lawyer reviewing contract with client.

Serving the Complaint and Defendant's Next Steps

Once a complaint is served with a summons, the defendant is on notice that the plaintiff has filed an action in court against them. If the complaint is filed by an attorney, the defendant should not contact the plaintiff with regard to the substance of the complaint. An attorney for the defendant is absolutely prohibited from any communications with a represented party. To be safe, you should direct all communications to the plaintiff's attorney.

Responsive Pleadings

Once the complaint is served upon the defendant, the defendant must file a responsive pleading within the allotted time period. This responsive pleading will be one of two documents: an answer (responding to each paragraph of the complaint) or a motion to dismiss. Plaintiff has the opportunity to file a response to each type of pleading.

Understanding a Motion to Dismiss

A motion to dismiss asks the Court to dismiss the complaint due to facially evident defects in the complaint or other matters that attack the sufficiency of the claims. Outside evidence is not permitted at this stage, since the Motion to Dismiss is attacking the way the pleadings are written. The judge must decide whether the complaint alleges sufficient information to, if true, establish that the defendant violated the law. If the judge finds that there is sufficient information, he or she will then order the defendant to file an answer to the complaint. If the judge agrees with the defendant that the complaint has certain defects and will be dismissed, the plaintiff can request leave to amend the complaint to avoid dismissal.

Establishing the Litigation Timeline

After the Defendant has had an opportunity to respond to the Complaint, they will confer and establish a timeline that will include due dates for the close of discovery and an estimate of dates for trial and related procedures. The parties will be required to adhere to this timeline or gain permission for extensions if adherence is not possible.

Discovery

Often, cases will settle out of court before discovery takes place. However, sometimes cases reach the discovery stage. “Discovery” basically means “information exchange.” It is a legal term of art referring to a number of formal mechanisms that parties to a lawsuit may use to obtain information from each other, as well as from witnesses.

Parties to a lawsuit engage in discovery so that there are no “surprises” at trial. Through discovery, each party obtains a rounded understanding of the other side’s arguments and evidence. There are five primary types of discovery: disclosures, requests for admissions, interrogatories, document requests, and depositions.

  • Disclosures are written documents exchanged between the parties at the start of discovery, in which the parties list their potential witnesses and describe the damages they believe are involved in the suit.
  • Requests for admissions are written documents exchanged between the parties. These documents contain a number of short statements of fact, which the other party must either admit or deny.
  • Interrogatories are lists of questions that each party must respond to in writing and under oath.
  • Document requests ask each party to provide the other with records and other documents that may prove elements of the case.
  • Depositions are question-and-answer sessions. These are adversarial in nature, but there are limitations on how the parties are permitted to conduct themselves. All parties at a deposition are represented by counsel. The parties at the deposition are sworn in, and the deposition is in front of a court reporter, who takes down the witness testimony verbatim and produces a written transcript.

The entire discovery process typically takes a number of months to complete. Full participation from our clients is required at all stages of the process.

Dispositive Motions

After discovery, either party may file a Motion for Summary Judgment (MSJ), and the other party files a response to the motion. A MSJ asks the court to rule on, and possibly dispose of, the case based on all the evidence obtained during Discovery. A motion for summary judgment is a powerful litigation tool that can be used by a defendant or plaintiff.

It may only be granted if there are no genuine issues of material fact and permits the moving party to judgment as a matter of law. In other words, if there are questions of fact, such as doubts whether a certain event took place or took place in the way Plaintiff’s complaint pleads, then the judge cannot grant the Motion for Summary Judgment and the case must proceed. On the other hand, if the judge determines there are no issues of material fact, the judge grants the motion for summary judgment. If a MSJ is granted, the non-moving party (other party) has the opportunity to appeal the ruling. In appealing the grant of MSJ, the parties draft briefs, and the court sets oral argument. At that point, the grant of the motion is either upheld or reversed.

If the grant of MSJ is reversed, the case proceeds to a jury or other finder of fact.

Pre-Trial Order and Trial

In Illinois (the Seventh Circuit in federal court), nearly 98% of filed cases settle before reaching the trial stage. However, for those rare cases that do proceed to trial, the parties must file a pre-trial order. This document lists all the witnesses who will testify, documents that will be used, and instructions that will be given to the jury.

Trial Process: Jury vs. Bench Trials

Trials may either take place before a jury (a jury trial) or before a judge (a bench trial). If the case is before a jury, the parties will take time to pick a jury. Next, in both jury and bench trials, the parties will present their cases by issuing opening statements, examining witnesses, presenting evidence in the case, and making closing statements to summarize their case. The jury in a jury trial, or the judge in a bench trial, will then decide its ruling. The losing party then has an opportunity to file an appeal of the decision, often based on the decisions and actions of the judge.

Collecting on a Judgment

Some successful litigants might think the hard part is over when they win a case and secure a judgment. However, collecting on a judgment can sometimes take extensive investigation and work, and additional proceedings.

The Dynamics of Litigation

The cost and length of time it takes to “win” a case is why early resolution is favored and encouraged. In using the term, “win” we would be remiss if we did not acknowledge that many variables along the way in litigation can impact the outcome. Even after clearing the initial hurdles of the various techniques that the other side will use to get the case dismissed, proceeding to trial is a gamble. Nonetheless, the process is designed to create an informed “gamble” without surprises on the day of trial.