First Step to filing a lawsuit: Meet with a lawyer The first step in filing a lawsuit is to meet with a lawyer. During the initial consultation, a lawyer will ask all of the necessary questions to file a lawsuit on your behalf. Your attorney will use the information that they gather during the initial consultation, their legal expertise, a thorough investigation of your claim and any legal research necessary to file the beginning document in a lawsuit, the Complaint, on your behalf. You filed a Complaint, what happens next? After filing and serving the opposing party with a complaint, the Tennessee Rules of Civil Procedure provide the defendant with 30 days to respond with an answer. In some instances, the defendant may file a Motion to Dismiss before filing an answer to the Complaint. If the defendant files a Motion to Dismiss, we will have the opportunity to file a response and request the judge to hear oral arguments on the issue.
A Motion to Dismiss is generally filed when there is a procedural defect in the complaint, such as a lack of subject-matter jurisdiction, lack of personal jurisdiction, improper venue or a failure to state a claim upon which relief can be granted, among a few others. However, a well-drafted Complaint may preclude the defendant from ever having the opportunity to file a motion to dismiss.
In most cases, the defendant will not file a Motion to Dismiss, but instead, the defendant will respond to the Complaint with an Answer. The Defendant’s Answer must include a response to each factual allegation of the Complaint by either: (1) affirmatively admitting the allegation; (2) denying the allegation; or (3) state that they do not have enough information to admit or deny the factual allegation.
Depending on the circumstances of your case, the defendant’s Answer may additionally include affirmative defenses or counterclaims. What is an affirmative defense? An affirmative defense is simply a reason that the defendant believes it should not be liable for all or some of the alleged damages. Besides simply denying the allegations in the complaint, affirmative defenses provides the court with the reasons that the party believes that it is excused from being liable for a breach of contract claim.
Affirmative defenses may include the following: assumption of the risk, duress, estoppel, failure of a condition precedent, failure to mitigate damages, fraud, frustration of commercial purpose, impossibility of performance, unjust enrichment, anticipatory repudiation, among various others. What is a counterclaim? A counterclaim is used to allege that the plaintiff is liable for the breach of contract and therefore owes the defendant damages, rather than the defendant owing the plaintiff damages. In essence, a counterclaim is the defendant’s Complaint in a lawsuit that must be answered by the plaintiff in the same manner and with the same time limit as the defendant must answer the complaint. Any claim that may be alleged in a complaint can also be alleged as a counterclaim. Discovery in Civil Cases: After the defendant files their Answer to the Complaint, the discovery phase of the case will begin. Your attorneys will make a schedule with the opposing counsel to create deadlines for the various phases of discovery. The discovery phase is a long process of obtaining information and providing information to the defendant in your case. The discovery phase will include the following:
(1) Interrogatories: questions that ask the opposing party to provide detailed answers regarding specific factual allegations or dates, witnesses, and reasons why they denied allegations in the Complaint, among any other question that may lead to the discovery of relevant information.
(2) Requests for Production: requests for the opposing party to provide you with documents, memoranda, internal documents, emails, or any other relevant document regarding the subject matter of the lawsuit.
(3) Depositions: each party will have the opportunity to question potential witnesses under oath, with a court reporter present, regarding background information about the individual and information about the lawsuit. In short, depositions are essentially cross-examinations outside of the courtroom that will provide the lawyer with a clear picture of what the witness would say at trial. Any testimony at trial that contradicts the testimony the witness gives at a deposition may be used to impeach the witness. Additionally, the deposition testimony is almost always used to support or oppose a Motion for Summary Judgment that will be discussed below.
(4) Requests for Admission: requests for the opposing party to admit or deny specific factual allegations. These requests are drafted after the depositions because the requests for factual statements to be admitted are usually closely related to the testimony that arose during the depositions. Any facts that are admitted may be conclusively deemed admitted at trial.
The discovery process will take months and potentially over a year. Once the discovery phase is completed, a Motion for Summary Judgment is usually filed. What is a Motion for Summary Judgment? A Motion for Summary Judgment is a motion asking the court to rule on an issue or the entirety of the case without the case going to a jury. The party requesting the judge to grant them summary judgment must prove that even assuming that all the facts that the non-moving party, or the party that did not file the motion, has stated are true in the case, there is no conceivable way in law for that party to prevail.
Usually the defendant will draft such a motion requesting the judge to dismiss the case, but either party may draft a Motion for Summary Judgment depending on what happens in the discovery phase of the case.
Just like with a Motion to Dismiss discussed before, if a party files a Motion for Summary Judgment then the non-moving party will have an opportunity to respond and the judge will hear oral arguments on the issue before making a ruling. The non-moving party must prove that there is a factual dispute that if proven true, would provide them with an argument for the jury to find in their favor.
If the case survives summary judgment, then the case will proceed to trial or mediation. At this point in time, each party should realistically evaluate their case and determine if they can resolve the case without going to trial. However, it is important as the plaintiff to evaluate how likely it is that you may prevail at trial, and, if you prevail, how much money do you expect the jury to reward you. Answering these questions, with the aid of your attorney, is critical to insure that you make a well-informed decision with regard to whether to proceed to trial or negotiate a settlement offer. What is Mediation? Now, the case is ready to receive a trial date… maybe. Under Tennessee Supreme Court Rule 31, either party or the judge on its own initiative may order the parties to participate in Mediation before proceeding to trial. Mediation is a meeting between the parties with a neutral, licensed and skilled third-party present. The Mediator, the neutral third-party, will listen to all of the reasons why each party believes that their settlement offer should be accepted in an endeavor to assist the parties in coming to a voluntary settlement agreement. The idea of Mediation is to push each parties’ asking price closer to the others until the parties agree to a settle the case.
If the parties cannot agree on a settlement amount through Mediation, then the case will receive a trial date. The trial will be a bench trial, a trial decided by the judge, unless either party requested a jury trial within the applicable time limitation.