Managing Expectations for the Initial Phase of Litigation

Posted On December 11th, 2019 by Michael Dunham

For many laypeople, one of the most frustrating things about litigation is the pace of it, which always seems to take forever. There are a number of reasons for this, but probably the two biggest are that (a) if you’re going so far as to file a lawsuit against someone, it’s probably a really big deal to you, and (b) I don’t think most of us who are outside the system can truly appreciate just how many lawsuits and claims are filed each hour/day/week/month/year. Regardless, I think it is helpful for you to manage your expectations regarding how quickly things will move, even in an “emergency” situation.

One thing I want to make sure you understand is what the word “emergency” means in this context. We are used to calling 911 in an “emergency”, or going to an “emergency room” when injured, and getting immediate response and results. Litigation is different – everything takes time. Under normal circumstances, the initial phase of a lawsuit looks like this:

  1. The plaintiff files a complaint, setting out details of what happened between the parties and the relief he wants as a result.
  2. The complaint is filed with the court, and then must (usually) be personally served on the defendant, either by a sheriff’s deputy (or similarly equivalent government official), or by a private process server.
  3. The defendant is given time to file an answer. As an example, in most cases filed in the state court system in Georgia, this timeframe is 30 days, starting from the date of service (NOT the date of filing).
  4. If a hearing is sought, the court will typically schedule it sometime after the defendant has filed an answer or has allowed the case to go into default (i.e., by not filing an answer, which means the defendant effectively admits everything in the complaint). Typically the hearing will be several weeks after the answer is filed or due; sometimes, the court won’t even look at scheduling the hearing until after that date has passed.

As you can see, very often the first time the case can or will be heard is 60 or more days after the case is filed. Another wrinkle is that some courts will not even hold a hearing until the parties have attempted mediation, in many cases.

By seeking “emergency” relief, you are seeking to shortcut the above process, by having a hearing as quickly as possible, even before service is perfected in some cases. The catch is, whether there is an “emergency” is entirely in the eye of the beholder, i.e., the court. For this reason, if you think you have an emergency situation, I think it is worth taking a little extra time to add more detail in your petition than might otherwise be necessary, since what is written in your petition is effectively your one and only shot at convincing the Court there is a true emergency which requires special treatment.

Naturally, if you have questions about your specific case, you should consult with qualified counsel. Good luck, and let us know if we can help!