The Litigation Marathon

It’s marathon season in Boston, and while I have limited experience in long-distance running, I figured it was as good a time as any to talk about long-distance litigating. You’ve probably heard that litigation is a time-consuming process, and it can help to demystify what’s actually going on. 

For all the impenetrable legalese that lawyers like to use, the reality is that fighting for your rights follows a fairly straightforward procedure (which I say with apologies to every Civil Procedure professor in the country). This is how we put one foot in front of the other to make sure a suit keeps moving forward.

Step 1: The Demand Letter

Before a formal lawsuit is even filed, we almost always start with a Demand Letter. This is a detailed document sent to your employer’s legal department or outside counsel, laying out the rationale for litigation. The employer’s attorney’s job is then to investigate the claims made in the demand letter, and then come back with a response that can range from “kick rocks” to “we’ll give you everything you asked for just please leave us alone forever.”

Candidly, the former response is more popular than the latter. Lots of employers count on plaintiffs (and plaintiffs’ attorneys) not having the stomach for litigation.

It’s a decision they often regret down the line, after many months of paying their own attorneys’ fees.

Step 2: The MCAD Filing (Exhausting Administrative Remedies)

In Massachusetts, you generally cannot go straight to Superior Court for a discrimination claim. You must first file a complaint with the Massachusetts Commission Against Discrimination (MCAD). (If bringing federal discrimination claims, you must file with the Equal Employment Opportunity Commission (EEOC) before proceeding in federal court. For our purposes, we’ll stick to Superior Court—although the processes are functionally similar, including when cases proceed in private arbitration instead of open court. Look, just because I said this is straightforward doesn’t mean it’s so simple you don’t need a lawyer.)

The MCAD complaint serves a similar purpose to the demand letter: clearly laying out what the employer did wrong. But once it’s filed, the pace slows down.

It can take weeks or months for the MCAD to serve the complaint on the employer. After that, the employer typically has additional time to submit a “position statement” explaining why they believe the claims lack merit. The assigned investigator may also request further documents and information, adding to the timeline.

The reality is that the MCAD is heavily backlogged—investigators are often responsible for hundreds of cases at a time. While some claims are resolved at this stage, most are not.

As a result, the primary goal is usually to obtain a right-to-sue letter, which allows the case to proceed in court. Fortunately, you don’t have to wait for the entire MCAD process to play out—complainants can request a right-to-sue letter 90 days after filing.

Step 3: Filing in Superior Court (Pleadings)

Right-to-sue letter in hand, we file a Complaint in court. This is the formal legal document that initiates litigation. The employer (the Defendant) then usually files an Answer, denying most allegations and raising defenses against the allegations. There’s an old canard about the Answer being the most useless document in litigation, and personally, I haven’t seen evidence to the contrary.

They also have the option to file different motions before filing an Answer. Those are uncommon in employment litigation, but those come up on a case-by-case basis and can extend the timeline further. Stay tuned for a separate post on what motions are and how they work.

Step 4: Discovery

This is the longest phase of the case, often lasting 12 to 18 months. This is where both sides gather the evidence needed to understand the facts and prove their claims or defenses.

Discovery generally has two components: written discovery and depositions. While they can overlap, parties typically try to complete most written discovery before moving on to depositions.

Step 4(a): Written Discovery

The two most common tools here are interrogatories (“rogs”) and requests for production (“RFPs”).

Interrogatories are written questions that must be answered under oath. Requests for production seek documents and communications relevant to the case.

Depending on the scope of the claims, collecting, reviewing, and producing this information can take months. That’s before accounting for the inevitable disputes over whether requests are too broad or whether responses are complete.

This is the real grind—the part of litigation you won’t see on TV—but it’s where cases are built or lost.

Step 4(b): Depositions

Once the key documents and information are on the table, the parties take depositions. These are formal interviews conducted under oath, with testimony recorded by a court reporter.

We question supervisors, HR personnel, and other witnesses with relevant knowledge, typically in a conference room or over Zoom. Their answers lock in their version of events and can be used later in the case. The defense’s attorneys will be doing the same thing to you.

Depositions are critical, but they also take time. A single deposition can take multiple days to complete, can stop abruptly, and only get picked up again months later, either due to motions (yes, more motions), but most often because of the logistical challenge of coordinating multiple attorneys and witnesses.

Step 5: Summary Judgment

Before a case reaches a jury, the employer will almost always file a Motion for Summary Judgment. They are essentially asking the judge to throw the case out, arguing that there are “undisputed material facts” that have been brought out during discovery, and that those facts mean that the claims alleged in the complaint cannot succeed under the law.

Ultimately the judge decides whether the case will be going forward, and it can take months for the sides to make their arguments and for the judge to finally decide where things land. The vast majority of all cases (95% or more) resolve at or before this point.

Side-step: Mediation and Settlement

The reason why most cases resolve without going to trial is because they settle. While settlement can happen at any time, it often occurs either right at the outset, after discovery, or after we defeat a Motion for Summary Judgment. While settlement can be negotiated between attorneys, as cases proceed, they are more likely to have their settlement discussions go in front of a mediator, a neutral third party who helps both size fully understand the risks of going to trial.

Because employers hate going to trial.

Step 6: Trial

If no settlement is reached and the claims survive summary judgment, we go to trial.

Even with only a small percentage of cases reaching this point, most judges keep full dockets that require trials to be scheduled far in advance. That time is taken up by preparation for the trial, including no small amount of motion practice.

The trial itself is relatively brief—anything from just a few days to a few weeks—but it’s intense. This is the last sprint before crossing the finish line.

Whatever you think happens at trial, it’s far more boring than that. Trial is where everything built during discovery gets presented to a jury—clearly, efficiently, and persuasively. All those months of discovery, the uncountable pages of documents, the hours upon hours of depositions, that all has to get presented to a jury in a way that a) keeps their attention and b) convinces them you’re right and the other side is wrong.

It can be tedious, but this is what all the years of waiting and work have been building towards.

Step 7: Crossing the Finish Line

Settlement remains an option right up until the trial concludes and the jury returns with a verdict, but whether it’s by verdict, negotiated settlement, or a judgment, litigation concludes. Depending on the result, either side may seek to appeal a verdict, but that’s a whole other process.

So with all of that having been said, you can understand why a typical discrimination case can take anywhere from 2 to 4 years from the first demand letter to a final verdict.

If you’re dealing with a hostile work environment or a discriminatory firing, don’t wait to speak to an attorney—it can be a long road to success. Make sure your case is being built the right way from day one. Contact the Law Offices of Sebastian P. Clarkin, PLLC for a confidential consultation today.