Lisle Civil Litigation Attorneys

‍The Pleading Phase of Litigation Explained

The Pleading Phase is the first phase of a litigation case. To initiate a lawsuit, the Plaintiff files a document called a "complaint," which lays out, in numbered paragraphs, factual allegations the Plaintiff is making against the defendant. The complaint would entitle the plaintiff to judgment from the court, and requests monetary or injunctive relief from the court if it is found in their favor.

The plaintiff will have the complaint served to the defendant through a sheriff, a special process server, or certified mail requiring the defendant's signature. The complaint comes with a summons requiring the defendant or their attorney to appear in court at the first court date, called the "Return Date."

The defendant will have 30 days from being served with the complaint to respond by filing either an Answer to the Complaint or a Motion to Dismiss the Complaint. 

If the defendant files a Motion to Dismiss, they may feel there is some defect with the complaint that makes the case improper, or it should be dismissed. When the motion is successful, the case is usually dismissed without prejudice and the plaintiff will typically be granted 30 days to file an amended complaint correcting the defects. If the court finds the defects can't be corrected by Amending the Complaint, the case will be dismissed with prejudice and cannot be refiled, but can be appealed.

If the Motion to Dismiss is unsuccessful, the defendant will be granted time to file an Answer to The Complaint.  The defendant will admit or deny each of the allegations listed in the complaint and plead any defenses that may defeat the claims made in the Complaint even if such claims are true.  Once the defendant has filed an Answer to the Complaint, the case is "at issue" and the Written Discovery Phase of litigation begins.

The phases in a litigation case include:​

1. The Pleading Phase;
2. The Written Discovery Phase;
3. The Oral Discovery Phase;
4. Pre-Trial Motions and Settlement Efforts; 
5. Trial; and
6. Appeals.  

Click here to read an article by our Lisle litigation lawyers about Motions to Dismiss in Civil Litigation. 

In this article, our Lisle litigation attorneys discuss what takes place once the Answer to the Complaint has been filed, the Pleading Phase of litigation is complete and the Written Discovery phase begins.  Each side will issue three types of written discovery requests to the other:  Interrogatories, Requests for Production of Documents, and Requests for Admissions of Fact.

• Interrogatories:  These are written questions to the other parties that must be answered fully in writing.  Each side is allowed to issue 30 questions to the other party without leave from court to issue additional interrogatories.  The purpose of the questions is to reveal the other side's theory of the case, the witnesses they intend to put on at trial, and the facts they intend to use to support their case.  It allows the attorneys to learn who they need to depose and gives them a foundation for their deposition questions. 
• Requests for Production of Documents: Requests to produce require the other side to produce any documents specifically listed that are relevant to the claim or defense of any party in the case.  Typically the attorney issuing the request to produce will include a catch all request, asking for anything relevant.  However, it is also important to narrowly tailor the requests to the type of document you are looking for so in case those particular documents are not provided, the party who failed to provide them can be sanctioned by the court. 
• Requests for Admission of Facts: Each side can request the other side to admit or deny up to 30 facts.  The purpose of this is to narrow the issues that have to be decided at trial.  Once a fact is admitted, it cannot later be denied.  If a fact is denied but it turns out later  that the party denying it knew it to be true, the party who wrongfully denied the fact will be sanctioned by the court.  If the Requests for Admission of Facts are not returned by the statutory deadline they are all deemed admitted, which has cost some negligent attorneys to lose cases. 

Read the entire article by our Lisle civil litigation lawyers

Because the overwhelming majority of civil suits settle, our DuPage litigation attorneys work with a focus toward obtaining a favorable settlement for you as early in the case as possible.  This allows both sides to spend less in attorneys fees, making it easier to reach a more favorable settlement for both parties.  Below are the typical inflection points in a litigation case when settlement is particularly likely:

1. Demand Letter: When our Lisle litigation lawyers are retained by a potential plaintiff in a dispute, typically, our first step is to send a well-researched demand letter to the other party laying out the facts of the case, citing to appropriate statutory and case law, setting forth the damages for which the defendant will be liable if the plaintiff is successful at trial, and making a demand for payment or some other action within a specified time period.  This usually leads to a response letter from the potential defendant's attorney and/or phone negotiations between parties.  Many cases will settle at this point before either side is required to spend more than a nominal amount on legal fees.  
2. Complaint & Summons: If the case doesn't settle after a demand letter, the next step is filing a Complaint initiating a lawsuit.  This is served by the sheriff or special process server upon the defendant along with a Summons requiring them to appear in court and respond to the Complaint by a particular "Return Date."  At this point, if the defendant has not hired an attorney, he or she will usually do so.  The defendant will realize the plaintiff's demand letter was not a bluff and will have a serious conversation with his or her attorney regarding the expected costs and outcomes of litigation.  Initiating the lawsuit will sometimes apply the additional pressure necessary to settle the matter. 
3. After Depositions Have Been Conducted: The next likely time for a case to settle is after written discovery has been answered and the most important depositions have been taken.  At this point both sides have a very good idea of what can be proven at trial, and should have a more realistic understanding of the likely outcome at trial.  Cases will often settle at this point, because all the facts are on the table. 
4. Pre-Trial Settlement Conference or Mediation: In a pre-trial settlement conference, the parties, their attorneys, and the judge will meet for several hours in an attempt to settle the case before trial.  The judge will usually give the parties an indication of what he or she considers a fair settlement based on the facts of the case, and will attempt to pressure parties who are being unreasonable to come to terms.  In a mediation, a professional mediator (usually a retired judge or attorney) tries to bring the parties together on settlement.  Pre-trial settlement conferences and mediations have a very high success rate.  
5. Immediately Prior to Trial: It is common for cases that have made it all the way to the day of trial without settlement to settle on the day of trial either shortly before trial begins or even after the trial has been conducted but before the judge rules.  This is because the parties have run out of time to hope the other side will come around to their way of thinking, and both sides are facing the immediate prospect of an all-or-nothing verdict at trial.  

Because many cases settle eventually, our Lisle litigation attorneys focus on achieving a favorable settlement on your behalf as early in the process as possible.  This leaves more money in your pocket and allows you to move on with your life.  Because we practice nearly all areas of law, our focus is not on making as much money as we can on your litigation case, but rather on having you walk away happy and gaining a client for life.