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OK at Work, hosted by Offit Kurman attorneys Russell Berger and Sarah Sawyer, is a weekly podcast that discusses current events and legal issues impacting business owners. From updates on the ever-changing employment law landscape to the risks and benefits of integrating AI into your workplace, subscribe to stay up-to-date on issues and events that may impact you and your business.
Sarah Sawyer: Welcome to this week's
OK at Work with myself, Sarah Sawyer,
my colleague Russell Berger, both
attorneys at Offit Kurman, and today
we are talking about litigation.
When you get involved in litigation, you
might be told it's a very long process.
There's a lot to it.
It can be really expensive.
We've talked about litigation a
lot on this program and some of
the challenges associated with it.
But a fun fact is that most litigation
matters don't go all the way to trial.
Which is a good thing for the
courts and for taxpayers, as
that would be a huge burden.
Right now already, it takes a long time
to get to trial, if you do go to trial.
It could take, depending on the
jurisdiction, a year or more
sometimes to fully get to trial.
Part of that is it's a busy system.
But most matters resolve.
And there's a couple different ways and
we won't go through all of them today
that, things get resolved before trial,
but one way is in pre-motions that happen
before that stage where you're actually in
front of the judge and there's witnesses
and all that you might see on tv.
So from a legal perspective what
are some ways that folks end
up not going to trial, Russell?
Russell Berger: Yeah, obviously
you can settle a case and you
can settle a case at any time.
So that's one way.
From a motion standpoint, in
most forms of civil litigation,
there's two primary exit points.
One is a motion to dismiss, which
gets filed after a complaint, and
another is a motion for summary
judgment, which gets filed later
after you go through all of discovery.
Not often.
Sometimes mostly all
discovery, sometimes sooner.
And what a motion to dismiss basically
says is, if you're going to get it
granted, it's because the court's going
to determine that, even if everything the
other side says in the complaint is true,
it doesn't amount to a cause of action.
It's not actionable.
I'm going to kick this out.
Why bother?
Because what they're alleging
doesn't mean they get a recovery
anyway, so let's not bother.
And in contrast to summary judgment is,
we've got all these facts out on the
table through the discovery process,
both sides can present them in writing.
And even if I take the facts in the
most favorable light to the plaintiff,
the defendant's motion says it's still
not a viable cause of action that I
can award a recovery on, and I agree.
So I'm going to kick the case out
because the facts don't support as we
now know them through discovery, the
facts don't support a recovery here.
So those are the big points.
Obviously, motion to dismiss a lot better
if you're a defendant to get out on
because it's way earlier in the process.
It saves you a bunch of time,
money, heartache of going
through the litigation process.
But because of that, the
standard's a lot higher.
It's hard to get a motion to dismiss
granted because judges understandably
want to give it room to play out.
And if there's any gray area,
they're inclined to say no,
let's let discovery play out and
we will revisit this later on.
Sarah Sawyer: It can be a bit confusing,
putting all of these pieces together
and settlement, as you mentioned in the
beginning, is something that can always
happen, in the beginning of a case all
the way through leading up to trial.
You could be right in the middle of it.
But what you've just described,
have a more formalized process to
it, and it still takes, in a lot
of instances sometime to get there.
And a lift.
And you mentioned discovery.
You mentioned getting all
those pieces together.
So a lot of times you're
further along in the process.
Not always the case.
Sometimes, it can be the kind of case
where these things happen right up
front depending on how the facts are.
But, it definitely is a very common
practice and something that can
be a little bit confusing and how
things get disposed of without
actually getting in front of a judge.
Because I think there is a thought that
everything's gotta play out in front
of the judge, like in a trial setting,
like you've seen, in the movies.
But these are just a couple of ways
that might not be the case and some
might be finalized and done with
when you don't see all that play out.
Well thanks Russell.
We'll see you next time.
Russell Berger: Thanks, Sarah.