The Plaintiff files a complaint that describes what happened and what rights were violated.

The Plaintiff is able to file an “amended” complaint if new facts emerge, new parties need to be added, or if the complaint needs correction or clarification.

The Defendant will typically file a motion to dismiss (MTD). The MTD challenges the complaint, not the evidence. It asserts that the facts alleged, if taken to be true, would not constitute a violation of the Plaintiff’s rights. The MTD can also assert that the complaint is not specific enough. This may give rise to the Plaintiff asking the court if he or she may amend the complaint.

The Plaintiff has an opportunity to respond to the motion to dismiss and to brief why the arguments in the motion are wrong.

If the court grants the MTD, then all or a portion of the case is dismissed.

Discovery is the procedural term that essentially means “investigation.” The parties can request/subpoena records, request “admissions” as to certain facts, conduct depositions (which are interviews) of the other parties and of witnesses. There are often fights over the adequacy of the parties’ responses and what records the Plaintiff is entitled to receive. Sometimes these fights end up going to court through “motions to compel.”

Discovery is important for a few reasons: (1) To collect evidence for trial, (2) to get witnesses on the record so they cannot easily change their stories later, (3) and to learn about where additional evidence may be found, e.g., by asking witnesses in their deposition about the existence of other records.

A motion for summary judgment (MSJ) is similar to a motion to dismiss (MTD). But instead of challenging the face of the complaint, it challenges the evidence gathered during discovery. It argues that the evidence gathered does not show that the alleged violations actually occurred.

The court generally will defer to the jury to determine whether the evidence shows a violation. But where there is essentially no dispute as to a a key (“material”) fact, then the court will grant the MSJ.

The Plaintiff can also file an MSJ and argue that the case should be decided without even a jury making a determination because the evidence is so clear. A court will only rarely grant such an MSJ.

If the court grants the Defendant’s MSJ, then the case is dismissed in whole or in part.

For a Plaintiff, settlement is usually the desired outcome. A trial is risky, as you cannot know how a jury will decide. Settlement can happen any time during litigation. Often, the Defendant will want to see how the court rules on a motion to dismiss, since this doesn’t require a lot of work on the part of the Defendant and it may mean getting the case dismissed or at least slimmed down. After a ruling on the MSJ is another potential place for settlement, as the Defendant may not want to risk going to trial.

Sometimes, the court will oversee more formal mediation, and it can be helpful for an objective third party (a mediator) to help the parties assess the strengths and weaknesses of the case.

If the Plaintiff overcomes the motion for summary judgment, then the case goes to trial (if the parties cannot settle beforehand). The trial involves bringing witnesses and getting evidence into the record. This is where discovery becomes extremely important. The parties have a chance to introduce the documents they collected during discovery and can use deposition statements against witnesses if those witnesses’ statements at trial are inconsistent with their deposition statements.