USA Law and Practice Contributed by: John Desmond, Alexis Taitel, Alice Samberg, Mackenzie Robinson and Peter Dragovich, Dickinson Wright PLLC
witness testimony, to a factfinder for resolution), and the appellate phase (when the losing party attempts to overturn some aspect of the lower court’s findings). Once litigation has commenced, the parties engage in the discovery process, through which they collect documents from the other party or from third parties, ask pointed questions (interrogatories) in writing to the other party, conduct oral depositions (testimony under oath), perform physical inspections or examinations, and engage expert witnesses to opine about the cir- cumstances of the case (liability, damages, causation, etc). Throughout the discovery process, the parties may file an array of motions with the court. Once discovery has concluded, the parties may choose to file dispositive motions (typically, motions for summary judgment), which – if granted – would resolve all or part of the parties’ dispute. Assuming there are some claims remaining after the summary judgment phase of litigation, the case proceeds to tri- al. There are two types of trials: bench trials (in which the factfinder is the judge) and jury (in which a group of citizens serves as the factfinder). Either way, the parties present their evidence and arguments at trial, and a final decision or ruling is issued. Parties must then choose whether they will comply with the court’s final ruling, comply in part, or appeal the decision to the next level of the court system. 2.5 Confidentiality The First Amendment of the United States Constitu- tion guarantees freedom of speech and freedom of the press. As a general rule, the public and news media have the right to attend criminal trials and enjoy a long-standing tradition of public access to civil pro- ceedings. Thus, court proceedings and filings are presumptively open to the public. A party wishing to restrict public access to a court proceeding or docu- ment must overcome this presumption by demon- strating the existence of a compelling reason that out- weighs the public’s need for access. Parties may also stipulate as to the confidentiality of certain documents through a protective order that requires the parties to mark documents in a specific way (such as “attor- neys’ eyes only” or “confidential”). This is common in certain contexts, particularly trade-secret cases and cases involving someone’s safety. Parties likewise
sometimes choose to redact portions of documents to limit disclosure of information to the public. 2.6 Interim Relief There are two primary kinds of interim relief available to litigants: temporary injunctions and preliminary restraining orders. Parties seek temporary injunctions in emergency situations when the relief sought can- not wait until the court has the opportunity to hold a hearing. The test for this kind of injunctive relief is whether there is a threat of irreparable harm, such as a building about to be torn down or an irreversible surgery about to be performed. Monetary harm is not considered irreparable. Temporary injunctions usually last for a short period of time until the court holds a full hearing on the mat- ter and can decide whether more permanent relief is appropriate. If a court grants a preliminary injunction, its purpose is to maintain the status quo until the par- ties fully litigate the matter. After summary judgment or trial, if a party is entitled to a continuation of the injunctive relief, then a court may issue a permanent injunction. Interim relief – like temporary injunctions and preliminary restraining orders – is not particularly common, mostly because the test to qualify for it is so difficult to satisfy. Seeking relief on such an expedited basis can also significantly drive up litigation costs, and some parties do not view it as worthwhile to incur such expenses, particularly early in a case’s life cycle. 2.7 Final Relief The key types of final relief available to litigants in commercial litigation are legal relief (monetary dam- ages), equitable relief (non-monetary damages), declaratory relief, and restitution or disgorgement. There are various subcategories of monetary dam- ages, but the primary one is compensatory damages, which are intended to make the damaged party whole. For example, if a party incurred USD50,000 in medical bills due to another party’s conduct, then the injured party may be entitled to USD50,000 in compensatory damages to put that party back in the same situation it would have been in had the incident not occurred. Equitable relief generally includes injunctive relief (tem- porary injunctions and preliminary restraining orders), which explicitly directs a party to take some affirma-
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