Civil Litigation Process in One Page
Generally, a civil case is started when a “Plaintiff” files a document called a “Complaint” in
a court against at least one “Defendant.” The Complaint sets forth all legal claims the
Plaintiff has against the Defendant. The Defendant then files a document called an
“Answer” in which the Defendant either admits or denies the allegations contained in the
Plaintiff’s Complaint. The Defendant may also file (a) a Counterclaim against the Plaintiff
and/or (b) Third-Party Complaint against another party that Defendant believes is
responsible for Plaintiff’s loss.
Next, the parties attempt to discover what documents and facts the other parties have to
support their claims or defenses. This sometimes long process is called the “Discovery,”
phase. While there are many tools an attorney may use to discover information, often
times during this phase of litigation the parties will (1) send written questions (called
Interrogatories) to another party to be answered, (2) send formal Request for Production of
Documents to see what documents and things another party possesses, (3) subpoena
records from individuals or entities not involved in the case, and (4) take depositions.
While costly, depositions are a very powerful discovery tool. During a deposition each party
to the lawsuit may have an attorney present to ask the deponent questions. The deponent
may also have his/her attorney present. A court reporter is also present to swear in the
deponent and transcribe testimony. The deponent is required to answer each question
asked unless the question is harassing or seeks privileged attorney-client information.
Everything the deponent says is transcribed by the court reporter and since it is sworn
testimony the deponent may be impeached at trial if he/she testifies differently at trial than
he/she does during the deposition. Generally, if impeached at trial the jury is less likely to
believe the witnesses testimony. Many cases are won or lost based on deposition
testimony.
The purpose of the discovery phase is to avoid going to trial and not knowing what
evidence the other parties have to support their claims or defenses. Thus, if a case goes to
trial it is unusual (particularly in civil trials) for new evidence to come up on the eve of trial
that the parties do not know about (thus the phrase “trial by ambush” – when a party produces evidence to the opposition for the first time at trial). Generally speaking, a party
may depose anyone that has testimony relevant to the legal claims or defenses set forth in
their Complaint or Answer, such as any party to the case, any expert (doctor, accident
reconstructionist, etc.) or any independent witnesses. Unlike those qualified as “experts,”
witnesses generally may not give their opinions.
Throughout the case, there may be various motions filed by the parties. Defendants
seeking dismissal of the claims against them will typically file a “Motion to Dismiss” or a
“Motion for Summary Judgment.” While different legal standards apply, the motions
essentially ask the court to dismiss a party from the case. These motions are typically
accompanied by a hearing that allows the attorney who files the motion to argue his
position to the court (and allows the party opposing the motion to present his/her case as
well).
Next, the parties typically attempt some type of “alternative dispute resolution.” This means
the parties try to resolve or settle their differences without going to trial. The vast majority
of civil cases are resolved at a procedure called “mediation,” which is one form of
alternative dispute resolution. During mediation, the parties and their attorneys sit down
with an independent mediator who attempts to facilitate a settlement amongst the parties.
Mediators are typically individuals who have experience in the type of case they are
attempting to resolve.
If the parties are not able to resolve their dispute at mediation, the case will go to trial.
Depending on the claim, the trial may be argued to a judge or jury. Trials are very
expensive and unpredictable. However, trials are quite appropriate for certain cases and
each citizen enjoys a right to trial.
This has been prepared for informational purposes only. It odes not contain legal advice
and should not be relied upon for individual situations. The information contained herein is
subject to change and should not be relied upon without consulting legal counsel.
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