Stages In The Litigation Process

If you've been served with a lawsuit, it's normal to wonder what comes next. This post provides a high-level overview of the typical stages in a civil action. It isn't an exhaustive guide to every rule or deadline. Those differ from case to case. Litigation is fluid: unexpected motions may arise, timelines will change, and certain stages may unfold differently depending on the circumstances.

Still, most lawsuits follow a broad pattern. Here's what you can usually expect.

1. Pleadings

The pleadings are the formal documents that frame the lawsuit:

• Statement of Claim  – the plaintiff's document outlining the facts they allege and the relief they are seeking.
• Statement of Defence – the defendant's response, admitting, denying, or otherwise answering the allegations.
• Reply – the plaintiff's opportunity to address new matters raised in the Statement of Defence.
• Counterclaim – when the defendant advances a claim against the plaintiff, and potentially some other unnamed parties in select circumstances.
• Crossclaim – when one defendant brings a claim against a co-defendant in the same action.
• Third-Party (and Fourth-Party, etc.) Claims – used to bring additional parties into the lawsuit if they may bear some or all of the liability.

Pleadings define the boundaries of the dispute and set the stage for the litigation that follows. Pleadings must be filed and served on all parties in accordance with the Court of King's Bench Rules.

2. Discovery of Documents

After pleadings close, both sides exchange relevant documents. This is where the Affidavit of Documents comes in. Each party swears a list of all documents in their possession or control that are relevant to the matters in issue. The affidavit is divided into schedules (e.g. documents you are producing, documents you are withholding for privilege, documents no longer in your possession).

• Obligation: You must disclose everything relevant, regardless of whether it is helpful or harmful.
• Goal: Transparency. Each party should be in possession of all relevant documents to avoid a trial by ambush.
• Practical tip: Organize early. Scrambling for emails years into litigation is painful and inefficient.

3. Examinations for Discovery

This is often the most intensive stage of litigation, short of a trial.

• What happens: Each party (usually through their lawyer) questions the other side under oath.
• Court reporter role: A court reporter is a private professional, not a judge or court employee. Their role is to record every word and prepare a verbatim transcript.
• Why it matters: Discovery evidence is typically used for two purposes – and they are not mutually exclusive:
  1. To obtain admissions that narrow or prove key facts; and
  2. To obtain material to impeach a party's credibility at trial if their testimony later changes.

Discoveries are about clarity and leverage. They often shift how each side evaluates settlement.

4. Motions and Pre-Trial Conferences

Motions:

• Motions aren't a single “stage” of litigation; they can arise at different points along the way.
• They are proceedings before the court to resolve particular issues as the action unfolds.
• Examples include: striking part of a pleading, compelling disclosure of documents, or deciding a discrete legal issue in advance of trial.
• Motions can significantly shape the scope, timing, or even survival of a lawsuit.

Pre-Trial Conferences:

• Unlike motions, pre-trial conferences are a defined step, typically held once the case is ready for trial.
• A judge meets with legal counsel to identify procedural issues, set trial dates, schedule other procedural deadlines, and encourage settlement.
• Pre-trials often act as a reality check, with judges highlighting strengths and weaknesses to nudge parties toward resolution.

5. Mediation and Settlement Negotiations

Most cases resolve without trial. Settlement can happen informally at any time, but several formal and informal options are available in Manitoba.

• Mediation: A neutral, private mediator helps the parties explore settlement.
• Negotiation: Direct lawyer-to-lawyer discussions, often “without prejudice” so they can't be used in court.
• Judicially Assisted Dispute Resolution (JADR): In Manitoba, parties can request JADR, where a sitting judge facilitates confidential settlement discussions. Unlike a trial judge, the JADR judge won't hear and decide the case if settlement fails. It's a chance to get candid judicial feedback in a safe setting.

Costs: Keep in mind that litigation isn't free. Legal fees, court costs, and disbursements add up quickly. The Manitoba Court of King's Bench Rules also impose a costs regime: usually the successful party recovers a portion of their legal costs from the losing side on the basis of tariffs set by the Rules. This risk often drives parties to settle, even when they believe strongly in their position.

6. Trial

When settlement fails, the case proceeds to trial.

• Process: Witnesses testify, documents are formally introduced into evidence, lawyers argue, and a judge (or very rarely in a civil proceeding, a jury) decides the case.
• Length: Trials range from a single day to several months, although most will be two weeks or less.
• Reality: Trial is (typically) public, stressful, and unpredictable. However, it remains the forum for having your case heard and decided.

7. Appeals

If one side believes the trial judge made a serious error, they can seek review by a higher court.

• Scope: Appeals focus on errors of law or glaring (i.e. palpable and overriding) errors of fact. It is not an opportunity to re-argue the merits of the case.

Final Word

Litigation is rarely a straight path. It has predictable stages, but detours are common: motions, unexpected disclosure issues, last-minute negotiations, settlements reached at the 11^th hour. Understanding the roadmap helps reduce the anxiety of the unknown, but every case takes its own twists and turns.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.