A simple overview of how a lawsuit works... which is not what you normally see on TV.
If you ever become a party to a lawsuit, you should know how one works.
Doing otherwise is like playing poker when you don't know the rules and have bet your life on the outcome.
This is part of my Legal Self Defense series, designed to provide those who went to public school with a short, concise, easy to digest overview of how to access the law. For more information, see the introduction.
For average people, there are two primary legal processes that one is likely to encounter:
- Civil Process - lawsuits seeking compensation for damages done
- Criminal Process - lawsuits initiated by governments to penalize people or persons for their actions or inactions
The rules for these are similar, but different, and are outlined via Rules of Civil Procedure and Rules of Criminal Procedure.
Civil procedure is simpler to see properly, so we will cover that here and get into criminal procedure later on.
Each type of process will be different based on whether the lawsuit will take place in a federal or state court.
When involved in a lawsuit, you should be sure to consult the proper rules of procedure (state or federal) and (for state courts) any local rules for the court you will be in.
Civil Process / Procedure
A civil lawsuit follows a process called civil procedure.
When looking at a lawsuit, it is helpful to think of a lawsuit as having a few different stages as follows.
Stage 1 - Establishing the issues in controversy
At this stage, the following are being established:
- That the court can even hear the lawsuit
- Who the parties are
- What their claims are against other parties
- What any defenses are
- What parts of any claims are admitted, unknown, or not admitted
Stage 2 - Getting at the evidence
This is when each party has the chance to use discovery tools to prove or disprove any necessary facts and avoid the expense of going to trial
Most lawsuits should realistically end at this stage unless something subjective is being argued or the defendant is guilty and refuses to settle.
Stage 3 - The Trial
This is what we constantly see in our media, where lawyers argue back and forth using rhetoric.
If you are involved in a real trial, do not do what you see on tv.
Stage 4 - Appeal
If you lose your case, you can generally appeal the decision to a higher court.
note There is nothing that you can get onto the record during a trial that you cannot get onto the record during discovery, so most lawsuits should be able to be ended without a trial unless the plaintif is clearly in the right and the defendant refuses to settle.
Stage 1 - Establishing the Issues
A civil lawsuit is started by creating a complaint against another, whether the other be another man or woman, a corporation, or a government.
The complaint is used to:
- establish that the court has the right to hear the complaint (jurisdiction)
- list all causes of action against the defendant
- list all facts to be proven for each cause of action
- list any relevant controlling law
Once created, the complaint must be filed with a court and then served upon the defendant(s) via a summons.
Rules for proper service vary, but are designed to ensure that all parties to a lawsuit are made aware of it.
A Response to the Complaint
Once the defendant receives a summons, they will have a certain number of days to do one of the following:
- File a motion designed to avoid having to file a response
- File a response
Motions instead of an answer
If there is somethign wrong with the complaint, then the defendant should file a motion to address the problem. Some common motions are:
- Motion to Dismiss - get the case dropped - cannot be used after filing an answer
- Motion to Strike - remove some part of the complaint for some reason
- Motion for a more definite statement - clarify what the complaint is about
If there are no reasonable motions that could be filed, then one must file an answer to the complaint.
The answer should respond to each point made in the complaint by admitting, denying, or noting that you have insufficient knowledge to admit or deny it.
The answer may also contain:
- counter claims - causes of action against the plaintiff
- cross claims - against another defendant if more than one is named
- third party complaint - causes of action against someone not named yet in the lawsuit
- affirmative defenses - any reasons as to why the plaintifs claim must not be heard
Answer by Plaintiff
If the defendant filed a counter claim, the plaintiff must file an answer to it just as the defendant had to answer the plaintiff.
Reply by Plaintiff
If the defendant filed any affirmative defenses, the plaintif should file a reply and address the affirmative defenses
Stage 2 - Discovery
Discovery is the process by which those who are party to a lawsuit attempt to prove or disprove facts necessary to end the lawsuit one way or the other.
Rules on discovery vary by jurisdiction, but discovery generally consists of a few different tools, usable by all parties.
There are five primary discovery tools:
Requests for Admission - simple statements designed to get a response of admin, deny, or without knowledge
Requests for Production - used to get the other party to produce things that are relevant to the case
Interrogatories - written questions to be answered by the other side
Depositions - used to get verbal answers from the other party or relevant witnesses under oath
Subpoenas - used to force others to let you get at the truth
Used wisely, these tools can be used to avoid ever reaching trial simply because you cannot do anything at a trial that you cannot do using discovery tools.
Stage 3 - Trial
If there are any material issues in controvery once discovery is complete then a trial will be set.
You cannot do anything at trial that you could not have already done via discovery... so make very good use of discovery tools and you should not end up at trial.
Here, you restate your case for a jury and they decide a verdict.
If you do go to trial, it can be wise to find a good trial lawyer and hire them as counsel to help you know what to expect at each stage of the trial.
Stage 4 - Appeal
Should your case be dismissed or you be found guilty, you can apppeal the descision to a higher court, who will review the written record and then decide to either uphold the courts decision or overturn it.
Notice two important things:
- The judge had to have made an error
- The appellate court uses the written record. Anything not on the written record will not (and cannot) be considered by them
This is why having your own court reporter is critical if you go to trial (and for hearings!)... unless you completely trust the accuracy of the courts reporter.
While somewhat simplistic, the above is a broad overview of how the civil court process actually works.
It is worth noting that any time after the Complaint is served you can file motions to do any number of things.
Motions tell the court what you want it to do and provide reasons as to why it should (or must) do what you ask.
In state courts, to get a motion heard you must generally schedule a hearing.
In federal courts it is the opposite as you make your arguments in writing.
Hearings are typically where motions are heard (in state courts), which gives your opponent a chance to argue against your motions.
Before going to court, it is a good idea to get copies of any of the following which apply to your case and read them at least a few times.
- Federal Rules of Civil Procedure
- Federal Rules of Criminal Procedure
- Federal Rules of Evidence
- State Rules of Civil Procedure
- State Rules of Criminal Procedure
- State Rules of Evidence
If in doubt about something and you have the cash to do so, consider hiring a good lawyer as counsel to answer questions for you.
- I am not a lawyer
- This is not legal advice
- Rely on what I say at your own peril
About this article
This is part of my Legal Self Defense series. Read the introduction for more information.
If you like what you see, you can browse other articles by clicking my name below. If you are interested in seeing this series as it is published, be sure to follow me and check your Feed tab to see articles from those you follow.
Upcoming articles will get into more depth concerning civil procedure.
Be well! @tony.jennings