The progress of a civil lawsuit

A person with a legal claim (for monetary compensation—“damages”; equitable relief—an “injunction”; and/or other relief) files a complaint with a court and serves a copy of that “pleading,” with a summons, on the other party. The summons is a command to respond to the complaint. (Which court the complaint is filed in will depend on several things.) Typically, there is a fee to file a lawsuit (also called a “case” or “action”).

Once the plaintiff has served the summons and complaint (in a manner prescribed by law) upon the defendant (and, if necessary, filed with the court proof of service), the defendant has a certain amount of time in which to serve and file an answer to the complaint (or, in some circumstances, a motion to dismiss the complaint for any number of several reasons). The answer to a complaint can be as simple as a denial of each and every allegation in the complaint, or more complex. An answer can contain counterclaims by the defendant against the plaintiff, either related or unrelated to the plaintiff’s claims.

If the court grants a motion to dismiss (at the start of the case or at any time), the lawsuit ends. (But the granting or denial of almost any motion can be appealed to a higher court.)

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Once the pleadings have been served and filed, the case moves into the discovery stage. Because the goal of a lawsuit is to get to the truth of the matter at issue, the rules of every jurisdiction require an open exchange(or “disclosure”) of relevant information and documents, so that both sides can prepare for trial completely. There are several different discovery devices available to each party to a lawsuit.

Each party may serve interrogatories (written questions) on the other. Each party may serve requests for admission. Each party may serve document demands. And each party may ask questions of the other party in person, under oath (at what is often called a deposition or examination before trial). Persons who are not party to the lawsuit can also be examined under oath in certain circumstances, though the service of a subpoena. Each discovery device has its own rules, which vary from state to state (and sometimes from court to court).

It is not unusual for a court to confer with the parties’ lawyers (in person or by phone) to make sure that discovery is moving along smoothly and on schedule. If there are problems, the court will try to resolve them in this conference.

Very often, when discovery is complete, one party or both parties will move for summary judgment. In essence, the party is asking the judge assigned to the case to rule give that party all or some of what he or she is asking for in his or her complaint (without the necessity of a trial) because the relevant facts are not in dispute and the law when applied to those facts is in the moving party’s favor. A motion for summary judgment is a difficult thing to win, because summary judgment deprives the other side of his or her day in court. A judge might require the lawyers to argue the motion in person on a “return date”; some judges take motions on “submission” only.

When all pre-trial motions have been made, one party or the other will inform the court that the case is ready for trial. The court will set a date for the trial, setting aside a certain number of days for the proceedings, based on the lawyers’ estimates of how long it will take to have all the witnesses testify. The court will usually ask the parties to submit pre-trial memoranda (or “briefs,” which set forth each side’s position and cite to relevant laws and previous lawsuits) and to provide the court with copies of all documents to be offered as exhibits at the trial. These pre-trial submissions enable the judge to know what to expect to hear at trial, but the judge will not make up his or her mind about the merits of the case before all the evidence has been presented.

Other motions might be made before trial, usually very close to the start date. These motions, called motions in limine, typically concern the evidence to be offered. One side might ask the judge to prohibit the other side from offering certain pieces of evidence, for any of a variety of reasons. (One of the most common reasons is that the other side did not produce the  information or documentation in response to a discovery request. Courts frown on “surprise” litigation tactics.)

If the parties do not settle the case out of court, then the parties will appear in court before the judge (and a jury, in some cases) and present their cases in turn, each side putting its witness on the stand to be asked questions by the parties’ lawyers. This is the trial. When all the evidence has been presented, the judge (or the jury) will render a verdict, effectively deciding what the factual “truth” of the matter is. The judge will then apply the appropriate law to the verdict and issue a judgment.

The judgment can have different components—the most common are an award of money and an order requiring someone to do (or not do) something. A judgment will be entered by a clerk on the judgment roll (sometimes call a “docket”) of the jurisdiction. Once a judgment has been entered, it can be enforced.

Article republished by permission from the Rottenstein Law Group

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