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Outline Of A Lawsuit
A lawsuit, or litigation, is a request to a court to determine a dispute between parties, or to compel one party to take action, such as following for a legitimate debt. The party that commences the litigation is generally called the plaintiff and the other party is the defendant.
Litigations are governed by rules of procedure, which set forth the steps each party must take in order to obtain from the court the relief sought. Since each state has its own rules of procedure, this is only a general outline.
1. COMMENCING A LAWSUIT
In most cases, a lawsuit is started by filing a complaint with the clerk of the court. A complaint is a written statement, prepared by the plaintiff's attorney, setting forth the basic facts of the controversy, and what relief the court is asked to grant. In most instances, the relief sought is a judgement that the plaintiff is owed money by the defendant.
When the complaint is filed, the clerk issues a summons. This is a written notice to the defendant that a lawsuit has commenced. The defendant then has the right to file an answer with the court, which is a denial of the allegations of the plaintiff's complaint, within the time limits set by the rules of the procedure. The answer may contain a general denial of all the allegations, or each allegation may be denied or admitted separately. In lieu of answering, the defendant may file a motion to dismiss. (See item #5)
2. SERVICE
Service is the device whereby the defendant physically receives a copy of the summons and complaint. It is usually accomplished having either the Sheriff of the county in which the defendant has its principal office or residence, or a private process server actually delivers copies of the summons and complaint to the defendant. The defendant need not be served this way in many states, which provides other methods (sometimes called substitute service) to give the defendant notice of the lawsuit. The defendant's time to answer is measured from when it is served, not when the lawsuit is filed with the court.
3. DISCOVERY
If the defendant files an answer, the parties are given an opportunity to determine, or discover all of the evidence the other side has to support its version of the dispute. Some of the most common methods to this are:
- INTERROGATORIES - These are a set of written questions, which must be answered in writing, under oath.
- DEPOSITIONS - These are sometimes called examinations before the trial. This permits each party to question the other orally. The testimony is recorded by a court reporter and reduced to a written transcript. This transcript may then be used at the trial.
4. COUNTERCLAIM
In additional to responding to the plaintiff's allegations as set forth in the complaint, the defendant may assert in its answer any claims is has against the plaintiff. These are known as counterclaims. A counterclaim is a separate action filed by the debtor and must be defended independently from the original suit filed by the plaintiff. Failure by the plaintiff to defend will result in the debtor winning a judgement against the plaintiff.
5. MOTIONS
A motion is a written request to the court, after suit is filed, for specified relief. Some of the most common motions are:
- MOTION TO DISMISS - This is filed either before or after the answer. If before, it usually means that there is a legal reason why the lawsuit cannot go forward, such as the time to sue on the claim, or statute of limitations has expired, or the court does not have the authority to order the defendant to do anything (lack of jurisdiction). A motion to dismiss may be made as to all, or a part of a lawsuit.
- MOTION FOR SUMMARY JUDGEMENT - This is a request that the court decide all, or some, of the issues of the lawsuit, at the time the motion is made. This takes place prior to trial. If the motion asks the court to decide some, but not all, of the issues of the lawsuit, it is called a motion for partial judgement.
Sometimes a motion will be made by a device known as an order to show cause. This is used to obtain an expedited hearing on a motion, or to obtain temporary relief prior to a hearing. These are granted by the court without the other party, and they order the other party to show cause, or give reasons why the person seeking relief should not obtain it.
- MOTION TO AMEND - This is a request to change part of the lawsuit.
6.TRIAL AND JUDGEMENT
When both sides have completed discovery, they certify this to the court in which the case is pending, which sets a trial date. Unless one party requests a jury, the case will be heard only by a judge. In most states and the Federal courts, evidence may be introduced at trial only through the testimony on witnesses, who can testify to facts based upon personal knowledge. The court cannot consider hearsay evidence, this is, evidence about which the testifying witness has no personal knowledge. Affidavits, letters, and other documents are hearsay evidence, unless the witness knows the contents, and they are relevant to the issues of the lawsuit.
The plaintiff has the sole burden of establishing its case through its witnesses and other evidence; if it fails to do this, its case will be dismissed after the trial. A defendant need not call any witnesses at all if the plaintiff does not present adequate evidence. After trial, the court renders a judgement in favor of one of the parties. This is merely a written declaration that the plaintiff is or is not entitled to relief. It does NOT result in the plaintiff getting the relief which has been awarded. This is the realm of post-judgement proceedings to enforce the judgement. Either side has the right to appeal if judgement is entered against them.
7. DEFAULT JUDGEMENTS
If a defendant who has been served with a summons and complaint fails to file and answer within the time required, or, if it answers but fails to appear at trial, the plaintiff will awarded a default judgement. This results in automatically granting plaintiff the relief requested in the complaint, usually without a formal hearing or trial. A default judgement from a state court may be enforced in that state in the same way as a judgement after trial. A Federal court default judgement may be enforced anywhere in the United States.
8. STIPULATIONS
This is a common term used in litigations. A stipulation is an agreement between the parties, or their attorneys, as to certain facts or questions or procedure. For instance, the plaintiffs may stipulate, or agree, to extend the defendant's time to answer, or the parties may agree to certain facts. If the parties agree to settle the case prior to trial, this agreement will usually be reduced to a written stipulation, which is then filed with the court, thereby terminating the lawsuit.
SUMMARY
1. Plaintiff files complaint with court, which issues summons.
2. Summons and complaint are served upon defendant.
3. If defendant does not serve and file an answer, plaintiff requests the court to enter a default judgement.
4. If defendant answers, parties must proceed with discovery.
5. Trial.
6. Judgement.
7. Post judgement proceedings.
8. Appeal.