Litigation Stages and Estimated Length of RPA Lawsuit

Litigation Stages and Estimated Length of RPA Lawsuit

Here is a quick discussion. You can expect a price or service discrimination lawsuit under the Robinson-Patman Act to last more than one year and hopefully less than two years, including trial (but not any appeals). An appeal would add at least 6 months to the time table.

It is assume that the case is being litigated diligently by the plaintiff's attorney, and that there is no settlement prior to a scheduled date for trial. A scheduled date for trial becomes the time at which defendants and their attorneys seriously consi der settlement. Before that time, the attorneys are making huge amounts of money defending the case, and the defendants know that as a practical matter they are making higher profits by not settling the case until the last moment.

Settlements generally are for substantially less than the theoretical liability, because of

• the litigation delays which force plaintiffs to accept substantially less than they lost
• the possibility of loss of everything at the trial stage
• the possibility of having a trial victory reversed by the Court of Appeals
• the delays after winning a trial to go through the appellate review process
• the possibility of a new trial being ordered by the Court of Appeals
• the possibility that the plaintiff or its attorney will run out of the money needed to properly finance the litigation

The Litigation Stages

RPA litigation can be broken down into the following stages:

• Obtaining an attorney
• Investigating claim and preparing, filing and serving the summons and complaint
• Obtaining answer of defendant;
• Defendant may move to dismiss complaint for alleged technical deficiencies in pleading
• Parties engage in pretrial discovery, usually starting off with document requests (including data processing records), then depositions of witnesses; also, the parties may serve requests to admit and interrogatories on each other to obtain additional evidence for the case
• Expert witnesses are retained; their expert reports are prepared and served; and the depositions of the expert witnesses on both sides are taken; the discovery phase of the case will generally be set by court order (after conference with the parties' respective attorneys) and will generally be set for a period of about 5 to 8 months
• The defendant(s) and perhaps the plaintiff will move for full or partial summary judgment to dismiss all or certain claims and/or defenses; the parties opposing the motion will generally have about one month to respond; and the moving parties will gen erally have 3-4 weeks to reply to such response
• The judge will generally decide the motion anywhere from one month to one year after the motion is submitted, sometimes with oral argument, and in many cases without
• If the case is not dismissed, and once discovery is completed, the parties will prepare an elaborate joint pretrial order, and various other documents relating to trial, including requests to charge the jury (if a jury has been demanded by any party), voir dire questions to be asked by the Judge to prospective jurors, proposed jury verdict form for the jury to fill out, trial memorandum setting forth legal issues which may arise at trial, marking of depositions transcripts to show what the parties pla n to read into evidence during the trial; an exhibit list by each party; a witness list by each party
• When the joint pretrial order has been filed with the court and signed by the judge, the judge generally has a last minute conference (pretrial conference) with the attorneys for the parties, hoping to be able to get the parties to settle the case
• The parties may agree to mediate the dispute while waiting for trial, by hiring a lawyer or former judge or magistrate to read the relevant papers and try to bring the parties together in dollar amount; mediation is not binding and what is discussed i s privileged and does not get revealed to the judge unless the parties agree to reveal parts of the mediation; even the terms of settlement are generally not disclosed to the judge
• The trial commenced, hopefully during the period between 1-2 years after the action was filed, and will generally take about two weeks to try, to a jury; the jury will render its decision as to liability and as to damages, if any are to be awarded; in some cases the trial is bifurcated so that liability is determined first, and if liability is found by the jury then the damages phase of the trial commences, usually before the same jury; a judgment is entered several days after the jury verdict is rece ived
• Parties may make post-judgment motions to try to overturn the judgment and obtain a new trial, or dismiss the case completely, which motions must be made within a certain number of days after the date of the judgment
• A notice of appeal must be filed, if at all, within 30 days from the date of entry of the final judgment in the case; the federal courts have only one appeal, which is from the final judgment, with some exceptions (such as an appeal from denial or gra nt of an injunction)
• The appellant's brief on appeal and the joint appendix of the documents which the parties want the appellate court to see must generally be filed within 70-100 days after the notice of appeal is filed, and the appellee has 30 days in which to serve an d file its opposing brief; the appellant may but does not have to serve/file a reply brief. The appeal will generally be argued within 30-60 days after all briefs have been filed
• The appellate court will generally decide the case, after it has been argued or submitted without argument, in 1-6 months
• If the case is reversed and sent back to trial, the case will go back to the discovery or trial stage, to resume from that point

The foregoing is a brief summary.

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Copyright © 1997, 1999 by Carl E. Person