The complaint is filed with the Clerk of Court by the plaintiff in the lawsuit. The complaint sets out what facts justify the lawsuit and the legal theory or theories. The person sued in called a defendant.
The complaint is filed only after the lawyer for the plaintiff has conducted an investigation of the facts and law so as to believe that there is a good faith basis for bringing a lawsuit against the defendant.
A Summons is Issued
A summons is issued by the Clerk of the Court. The summons commands the defendant to respond to the complaint. The summons and the complaint are served on the defendant by one of the acceptable methods under the law.
Defendant Responds to the Lawsuit
After the defendant receives the summons and complaint, he or she has 30 days to file a response. The response is usually an answer to the complaint. In the answer the defendant says whether he or she agrees with the facts alleged by the plaintiff and whether he or she agrees with the legal theories of the plaintiff. Defenses are also raised. Under certain circumstances, a motion to dismiss is filed instead of an answer. A motion to dismiss is filed when the defendant thinks that, for one of the several reasons set forth in the law, the lawsuit should not be permitted to proceed.
The Parties Engage in "Discovery"
If the lawsuit is not dismissed on a motion to dismiss, discovery is the exchanged between the parties to the lawsuit. There are several different types of discovery. Interrogatories are written questions each party asks the other to answer under oath. Requests for production of documents are used to obtain copies of documents in the possession of the other party. Depositions give one person the opportunity to ask oral questions under oath of witnesses or the opposing party in the lawsuit. There are several other types of discovery as well, all of which are designed to learn information or determine what issues are truly in dispute in the litigation.
At any time during the litigation process the parties may discuss settlement. Settlement can even occur during a trial. Settlement may be attempted through phone calls between the attorneys, letters between the attorneys, or a mediation. A mediation is a meeting between the parties to the litigation and their lawyers and is held in the presence of a mediator. The purpose of the meeting is to see if and on what terms the case can be settled. The mediator helps guide the process and facilitates the exchange of information to assist the parties in settling the case.
A case can only be settled with the permission of the client, and a lawyer cannot force a client to settle a case. However, it is the job of the lawyer to explain the pros and cons of the case and to help the client understand the advantages and disadvantages of settling the case.
If a case is not settled there will be a trial. Any party may ask for a trial or the judge may order a trial. At trial the plaintiff presents his or her witnesses and other evidence and the defendant does the same. Certain cases are tried to juries and others are tried by the judge. Trials may last one day or many, many weeks, depending on the complexity of the issues and the number of people involved in the litigation. If there is a jury, the jury decides the facts after being instructed on the law by the judge. Otherwise, the judge determines the applicable law and the facts.
It is always possible that there will be an appeal after a civil trial. However, appellate courts rarely vacate findings of fact by juries unless they determine that the law required that the trial judge should not have let the jury decide the case. Appellate courts generally look to determine whether there have been any legal errors by the judge or whether the parties or their lawyers have acted in a way so as to impact the fairness of the trial. Not even this type of error will result in a reversal of what happened in the trial court - the appellate court must also find that the error more likely than not affected the result of the trial.
This Guide Was Designed to Give Only an Overview of a Complicated Process
There are many, many complexities in the litigation process that have not been described in this guide. Complexities arise from the facts of the case, the applicable law, and the number of people involved in the litigation process. Jury trials can become especially complicated.
In addition, in each step of the civil litigation process there are deadlines for actions. Some of those deadlines are imposed by rules and others are imposed by court orders. Failure to comply with deadlines can have dire consequences.
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