Quick Overview of the Employment Litigation Process

Employment litigation, Branigan Robertson, employee rights attorneyEmployment litigation consists of four basic stages: (1) information gathering & demand, (2) pleading, (3) discovery and motions, and (4) trial and post-trial proceedings. This summary is a gross simplification of all four stages, but it should provide you with some context as to where your case may be going. Moreover, each case varies, and your lawyer will tell you how he or she thinks each stage should be approached. However, this section gives you a brief overview of the four stages and a sample path for a typical employment case.

If you are initiating the lawsuit you are the plaintiff. The person being sued is the defendant.

Information Gathering & Demand

Prior to the filing of any lawsuit, you and your attorney will spend time gathering information and obtaining the facts necessary to support your client’s case. This is the first stage of litigation. Sometimes the defendant is aware that a lawsuit may be filed against him, and has begun factual investigation as well.

This can be a long and cumbersome process as factual gathering is much harder than most people think. Your lawyer will be gathering specific facts to fit within elements of laws. This can sometimes be frustrating for non-lawyers. Be patient, your lawyer is trying to do a thorough job.

If your lawyer thinks it is appropriate he or she may decide to send a “demand letter” to the employer-defendant. This letter demands a settlement in exchange for not filing the lawsuit with the courts. Sometimes this results in a quick resolution to the case. Sometimes the defendant simply ignores this letter and your lawyer is forced to file a complaint with the court.


After your lawyer has gathered enough facts he will file a complaint with the court. The complaint, along with the summons, is served on the defendant and this begins the formal litigation process. The complaint consists of a brief factual summary, jurisdictional issues, and the causes of action (which are basically claims for relief under specific laws).

Upon receipt of the summons and complaint, the defendant must file a response, or else the defendant will be in default and a judgment may be entered against the defendant. This is the second stage of litigation. The defendant has several choices with respect to the type of response that may be made. First, if the defendant believes that there is some defect in the complaint, either a procedural rule that is not followed or insufficient facts alleged against the defendant, the defendant may file a motion. A motion is a request to the court for an order or ruling. If the defendant does not file a motion or if the motion is denied by the court, the defendant will answer the complaint. The answer is the defendant’s response to the specific allegations in the complaint and states any defenses the defendant may have.

Once an answer is filed, the pleading stage—that is, formal written documents by the parties to either start litigation or respond to litigation—is complete.

Discovery & Motion

The third stage is the discovery pre-trial motion stage. The bulk of litigation time is spent at this stage, and it is usually at this stage that cases will settle. In this stage the parties will conduct formal factual investigation through written responses (interrogatories) and oral testimony (depositions) from the other party.

The parties may also obtain discovery formally from other individuals who are not parties but who may be witnesses or in possession of information that is helpful to the case. During this stage, there may also be a number of pre-trial motions. These motions may include a request to the court to enter judgment without the necessity of trial if none of the facts are in dispute, or involve requests to obtain discovery from the other side if one side does not voluntarily provide the information.

Trial and Post-Trial

The final stage of an employment case is the trial and post-trial proceedings. Both during trial and after trial, there are a number of different motions that either side can make. These motions include requests for judgments if one side has failed to prove its case, or requests to the court to enter a different judgment if the jury’s verdict is not consistent with the evidence produced at trial. As discussed earlier, at this stage the losing party also has an automatic right to appeal the decision. An appellate court could reverse the judgment and require a new trial, which would start this stage over again. This explains why some cases go on for several years winding their way through the trial court, appellate courts, and back to the trial court again.

As I stated above, this is a gross oversimplification of the litigation process. But I hope it has give you a better understanding of what to expect.


Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

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