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Explaining the litigation process – what to expect when filing a land use lawsuit in Federal Court

Getting involved in a lawsuit is a time consuming, frustrating and often confusing process. The court system is not viewed as being “user friendly,” and the terminology, forms and what seem to be “picky” rules are often viewed as traps rather than a means of getting to an end – the resolution of a dispute. Lawsuits should be filed only when one has no other choice – the “last resort” when disputes cannot be resolved by compromise and negotiation. I refer to these cases as “have to” cases – the client “has to” sue. This is often the case when you have gone through the land use process with a municipality and the local government has rejected your plan leaving you with no alternative but to sue if you want to use the land for the intended purpose.

In general, the time frame from filing suit until you have a trial date is 18 months. The 18 months will not be easy or predictable. Litigation is akin to riding a rollercoaster – there are high points and low points, but not many level points. Much of the case depends on factors out of your control. That is, the Judge assigned to the case has a tremendous impact as to how the case proceeds. The law changes as well. Simply put, there are no guarantees.

In terms of process, there are generally five stages of a federal lawsuit. The first stage occurs with the investigation of the claim and the filing of the lawsuit. A lawsuit is begun by filing a Complaint with the court. I n this Complaint, the plaintiff – the party bringing the suit – must set forth a “legal story” which meets the substantive requirements for the claim being brought. This could be a claim of a violation of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) or a violation of the United States Constitution. Once filed with the court, a Summons is issued, which commands the party or parties named as defendants to appear. That Summons must be “served,” that is, delivered, to each defendant in accordance with the statutes for service of the summons and complaint (personal delivery, by registered mail or publication in a newspaper). Once served, a defendant has at least 30 days to “appear” by filing a response to the Complaint. This response is usually an Answer, which denies the important parts of the claim being made.

Once the initial papers are filed, the parties are instructed to appear for a Federal Rule of Civil Procedure, Rule 16 Conference with the Court. This is the second stage of litigation. The Court will discuss the nature of the claims and defenses, set forth a scheduling Order identifying dates of when litigation matters need to be accomplished and inquire into settlement. The Court will also Order the parties to comply with Federal Rule 26 and provide initial disclosure. That is, the names of witnesses, a summary of their testimony and contact information for the witnesses. Additionally, the parties are to provide a description or copy of all documents, both hard copy and electronic, that support the claims and defenses of the case. Plaintiffs are also required to provide a computation of damages and Defendants are to provide proof of insurance. This is information is to be provided within 14 days of the Rule 16 conference.

Thereafter, the third phase of the case begins. This is called discovery. Discovery is the pre-trial process for finding out what the other side and third parties know about the facts of the case. Written questions, called Interrogatories, can be submitted by one party to the other. The Federal Rules limit this to 25 questions including subparts. There are other “discovery tools” that are used: written Requests for Admission of facts, Requests for Production of records, and Subpoenas requiring third parties to produce documents, such as records from other land owners. When third party records are subpoenaed, there are certain protections against disclosure of confidential personal and financial information. Once this occurs, the defendants have a right to obtain relevant information on these subjects. However, this does not necessarily mean this information, once disclosed, is available to the whole world. There are ways to seek limited disclosure or protect private information.

The lawyers in the lawsuit will also conduct depositions, which are the formal process of questioning parties and witnesses (who are subpoenaed) about the facts of the case. The federal rules limit depositions to ten per side. A deposition is held before a court reporter, who takes down all questions and answers in full. The lawyer for the party requesting the deposition is entitled to ask the party or witness questions. These questions are subject to limited objections which can be stated on the record. Or, in cases in which protected information is requested, a “privilege” may be asserted, and the witness may be instructed by the lawyer not to answer (unless later compelled by the court). Lawyers representing all parties to the case have a right and opportunity to ask questions during the deposition, again, subject to appropriate objections. Today, lawyers spend more time in depositions than trial. The deposition is a key tool in the trial lawyer's kit for developing evidence, assessing witness impression, and evaluating the case. Unfortunately, depositions have become in many instances mini “battlefields” and unruly, prolonged proceedings, which unnecessarily distract from rather than advance the cause of bringing a case to resolution.

Depositions have rules and should proceed as if the testimony was being taken in open court. That is, in trial a lawyer is not permitted to: a) interrupt the examination with objections designed to help the witness testify, b) make speeches at will, c) speak directly to opposing counsel in an effort to intimidate or distract the examining lawyer from the line of questioning being pursued, or d) have conferences at will with a client or witness to discuss the “proper” answers to questions. Along the way, there are motions that can be made by either side if one party refuses to respond to the discovery requests.

The court also has periodic “status conferences” at which the court makes sure that the case is proceeding expeditiously. Usually, reasonably early in the process – possibly six months from filing suit the court will set some dates for the end of discovery, the disclosure of expert witnesses by both sides, a pretrial conference and trial. Real earnest trial preparation should begin between 60-100 days before the trial date. Also, at some point, the court will direct the parties to attend a Mandatory Settlement Conference, at which a judicial officer – usually not the trial judge – will oversee negotiations, requiring the parties to submit “briefs,” called “Settlement Statements,” in support of their respective positions.

After discovery ends, the fourth phase of the case occurs. That is the Motion filing. Under the Federal Rules, a party may seek Summary Judgment, or Summary Adjudication, or a party believes that an issue can be resolved by the judge as opposed to a jury. The standard is whether this is not genuine issue of material fact for a jury to decide. Simply stated, if you have a car accident and each witness at a four corner intersection testifies that the traffic light allowed them to proceed and all four car’s crash into one another at the center of the intersection, you have a fact question.

Finally, the fifth phase of the case is trial. Once the trial is called, the judge and the lawyers meet and discuss how it will proceed. There may be pre-trial motions that need to be heard and resolved by the trial judge. If a jury trial, the prospective jurors will be brought to the courtroom, and, in groups of 6, 8, 12 or 18 (depending on the trial judge and local procedures), will be questioned by the lawyers during “voir dire” [which means, in French, “to speak the truth”]. Once the jury is selected and sworn, the lawyers make their opening statements, and then the testimony begins when witnesses testify and documents are introduced. The plaintiff, with the burden of initially proving the case, starts first. The defendant goes next. Each side puts on a “case-in-chief.” Then they can “rebut” the other sides' case. They then “rest,” the judge gives “instructions” on the law to the jury, and the jury deliberates until it reaches a “verdict.” Once this part is concluded, the parties review the “verdict” and can make various post trial motions. Following these, a “judgment” is entered by the court from which appeals can be taken.

The trial lawyers at Dalton & Tomich plc have over 20 years of federal litigation experience in land use litigation. Please contact our professionals with any quesions that you may have concerning federal court litigation.

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