What Happens Before Trial in a Lawsuit
Notice and WarningNo attorney client privilege or relationship is created by the reading of this Guide.
This Guide is just an outline of the main concepts involved in how a lawsuit progresses. It is not a detailed explanation. There are many complicated rules involved in the proceedings of a court case. It is highly recommended that you retain an attorney to represent you. If you make a mistake, or neglect a point or law your case can be dismissed or a judgment can be taken against you. Please hire a lawyer if you are involved in a lawsuit.
An entire guide could be written about each of the sections of this broad overview. The law is complex and you should have an attorney to guide you through your dispute.
Commencing the LawsuitA lawsuit starts with the drafting and filing of a Summons. The Summons is the legal document that tells the defendant to appear in court. Most often, a defendant will have 20 to 30 days to appear, depending on how the Summons is served.
Service of the Summons can be by personal delivery, where it is actually handed to the Defendant or to a person with authority at a businesses offices, or by substitute service, upon another person at your home or place of business, or in the case of corporations, upon the New York State Secretary of State.
The ComplaintThe Complaint is the legal paper where the Plaintiff explains what it is believed the Defendant did wrong. A Complaint can come in two forms, an Endorsed Complaint, which is a short statement describing the dispute written directly on the Summons, or a stand alone Complaint, which is its own document, and which is usually filed with the Clerk at the same time as the Summons.
The Complaint states the basic facts of which the Plaintiff relies on and also states the legal theories upon which the Plaintiff expects to collect damages. These legal theories are also called 'claims' or 'causes of action.' Most often, they are things like negligence or breach of contract. Sometimes many different causes of action can arise from a single set of facts.
The Answer or AppearanceThe most common type of appearance in a lawsuit is by an Answer. If you do not appear on time, a Plaintiff can get a 'Default Judgement' against you. In a default, the case goes straight to damages.
In the Answer a Defendant admits or denies the facts and claims in the Complaint. An Answer can also state claims the Defendant has against the Plaintiff or states defenses to the claims that the Defendant.
A party can also appear by immediately filing a motion to dismiss the case because there is something wrong with the Summons or the Complaint. Generally, this kind of motion can not just dispute the facts stated in the Complaint (that is a Motion for Summary Judgment, described below); this motion must say that the Court has no jurisdiction over the dispute (subject matter jurisdiction); the Defendant was not properly served (personal jurisdiction); or the Plaintiff failed to state a claim. There are many other grounds for dismissal, these are just a few of the most common.
DiscoveryIn New York the discovery or 'Pre-Trial' phase of the case is the part during which the parties exchange information and documents.
There are many kinds of requests for discovery, the Bill of Particulars, demands for documents or things, demands for depositions, demands for expert witness information and demands for medical examinations are probably the most common.
During this phase you or your attorney will be answering questions the other parties have about the information and evidence in your possession. You will provide all of the things that the other parties ask for, and they will have to turn their evidence over to you.
In New York State Courts you do not have to exchange things that the other side does not ask for. You do, however, have to give everything that is asked for, or else you might not be able to use it at trial, you can have your Answer or Complaint dismissed or you can be sanctioned.
A few of the most important discovery devices are described below.
The Bill of ParticularsA Complaint does not have to be very detailed to be valid. However, a Defendant may want more information about your claims. That Defendant will serve the Plaintiff with a Demand for a Bill of Particulars.
For example, in a personal injury action, the Demand for a Bill of Particulars may ask for a statement of: the actual injuries sustained, the dollar amount of medical and other bills paid by a Plaintiff because of an injury and a clarification of what specific part of the large and complicated body of law which constitutes negligence will be relied upon to prove the case. Many other things are appropriate for a Bill of Particulars. What is appropriate in any given case will change on a case by case basis.
The Demand for Documents or InformationThis kind of demand is used to get specific information and papers from another party. It can ask for names and addresses of witnesses; copies of photographs, accident reports contracts or other papers and documents; copies of medical records (if appropriate); and any other thing or paper, and many types of information. You can ask for most things as long as they are relevant to the case, or may lead to the discovery of relevant material, and are not subject to attorney/client or some other type of privilege.
Expert InformationIn New York, only experts may give testimony at trial which is an opinion on a subject that a layperson is not expected to have a thorough knowledge of.
For example, the Courts have held that a layperson can testify about an opinion about a person's emotional state or whether or not someone appears intoxicated (not a measurement of blood alcohol, but just how they look).
However, if a subject is more complicated, like medicine or related to the work of an auto mechanic or electrician, then that witness must show their qualifications to talk on such a complex subject. In Discovery you are permitted to learn the names and qualifications of the other parties' experts and get a statement of what they will generally say in testimony and on what evidence they base their opinions.
The DepositionIn most civil cases, the parties are allowed to take "depositions on oral questions." This proceeding is often known as a deposition.
Each party, upon request, must attend in person to answer the questions of the opposing parties' attorneys. The answers are given under oath, and the whole proceeding is considered a sworn statement. The questions and answers are recorded in writing by a court reporter, who makes a transcript of the deposition, writing down everything that is said.
Later, the parties can use the written deposition transcripts as proof in the case or in a motion, or to see if a person's story changes over time.
In New York, expert witnesses are not normally subject to being deposed, except if they bring their own case.
SubpoenasWith certain limitations, people or companies that are not a part of the lawsuit can be required to give discovery, too. To get discovery from a 'non-party witness', a party can ask for it to be turned over voluntarily or a party can issue a subpoena.
The law allows attorneys to issue subpoenas without going to the Judge. A subpoena is like a court order, because the non-party must comply (unless they object to the court and the court "quashes" (i.e. invalidates) the subpoena.
The subpoena can demand that the information or testimony of the non-party be delivered at the attorney's office (most often in the Pre-Trial phase) or to the courthouse (most often in the trial phase).
Procedural Highlights of Pre-Trial PracticeOnce the Summons or Summons and Complaint are filed with the appropriate clerk's office, they are served on the Defendants.
After the Defendants Answer, the parties engage in discovery.
The Court usually becomes involved beginning with the Preliminary Conference. This is an appearance before the Court. At the conference, the parties agree to a schedule for the discovery. This may be followed up with "Compliance" or "Trial Readiness" conferences during which the Court checks on the progress of discovery.
If there are disputes about discovery, the Court may call a special conference about that dispute, or the parties might make a motion to the court about their dispute. Difference judges have different rules on how to proceed.
After the attorneys exchange the documentary part of the discovery, depositions usually follow, then a medical examination (if it is appropriate in the case).
When discovery is over, the case can be put on the Trial Calendar.