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STEPS OF A LAWSUIT

A lawsuit is a request to a court to determine a dispute between parties, or to compel one party to do an act, such as paying a legitimate debt.   The party that commences the lawsuit is called a Plaintiff and the other party a Defendant. 

Lawsuits are governed by rules of procedure which set forth the steps each party must take in order to obtain a ruling from the court.

Each state has its own rules of procedures.   The following explanation is a general outline.  

1. INITIATING A LAWSUIT
In most states, and in the Federal Court System, a lawsuit starts when a Complaint is filed 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 the relief the court is asked to grant.  In most instances, the relief sought is a Judgment stating that the Defendant owes the Plaintiff money.

When the Complaint is filed, the clerk issues a Summons. This is a written notice to the defendant that a lawsuit has been started against the Defendant.   The Defendant is directed to file an Answer with the court within the time limits set by the rules of procedure.   The time limit is commonly thirty days.  The Answer must contain a denial of the allegations that the Defendant disputes, as well as any affirmative defenses, and may include counterclaims.  In lieu of an Answer, the Defendant may file a Motion to Dismiss.

2. SERVICE
Service is the device whereby the Defendant physically receives a copy of the Summons and Complaint. It is usually accomplished by having the Summons and Complaint delivered to the Defendant by either the local sheriff or a private process server.  Many States provide other methods (sometimes called Substitute Service) to give the Defendant notice of the lawsuit. The Defendant's time to answer is measured from when the Summons is served, not from when the lawsuit is filed with the court.

After the Defendant is served, other documents may be served by simply mailing copies to the other side. The person who does the mailing then swears to an Affidavit of Mailing which includes the person to whom the papers were mailed, the address the papers  were mailed to, and the date. Sometimes documents will be hand delivered;  the person served will be asked to admit to Service by signing the original. Originals are always court file documents. A copy of all documents in a Lawsuit must be served on all parties, or the court will not accept them for filing.

3. DISCOVERY
After 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 do this are:

Ø      Interrogatories – This is a set of written questions which must be answered in writing, under oath.

Ø      Depositions – These are sometimes called Examinations Before Trial.  Depositions permit each party to question the other orally.  The testimony is recorded by a court reporter, and a written transcript is created. This transcript may then be used at the trial.

4. COUNTERCLAIM
In addition to responding to the Plaintiff's allegations as set forth in the Complaint, a Defendant may assert in its answer any claims it has against the Plaintiff. These are known as Counterclaims. They need not have anything to do with the transactions set forth in the Complaint. In many states, and in the Federal Courts, there is a rule called Compulsory Counterclaim which means that a Defendant waives any claims it may have against the Plaintiff if it does not set them forth in its Answer.

5. MOTIONS
A motion is a written request to the court for specified relief. Some of the most common motions are:

Ø  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 expiration of the Statute Of Limitations, or the court's lack of authority to order the Defendant to do anything (Lack of Jurisdiction). A Motion To Dismiss may be made on all or part of a lawsuit.

Ø      Motion for Summary Judgment - This is a request to the court to 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 in the lawsuit, it is called a Motion for Partial Judgment.

Ø      Sometimes, a motion will be made by a device known as an Order to Show Cause.  This is used by the Plaintiff 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.  The court orders the other party to Show Cause, or to give reasons why the entity seeking relief should not obtain it.

Motions Continued:

Ø      Motion to Amend - This is a request to change part of the lawsuit.  

6. TRIALS AND JUDGMENT
When both sides have completed Discovery, they certify this to the court in which the case is pending.   The court then sets a trial date. Unless one party requests a jury, only a judge will hear the case. In most State Courts and the Federal Courts, Evidence may be introduced at trial only through the testimony of witnesses who can testify to facts based on personal knowledge. The court cannot consider Hearsay Evidence, that 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 the contents 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 the Plaintiff fails to do this, the case will be dismissed.  A Defendant does not have to produce any witnesses at all if the Plaintiff does not present adequate evidence.

After trial, the court renders a Judgment 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 that is awarded.  Instead, Post-Judgment Proceedings are used to enforce the Judgment.

7. DEFAULT JUDGMENT
If a Defendant is served with copies of the Summons and Complaint, and fails to file an answer within the time required, or if the Defendant answers but fails to appear at trial, the Plaintiff will be awarded a Default Judgment. This results in automatically granting Plaintiff the relief requested in the Complaint, usually without a formal hearing or trial. A Default Judgment from a State court may be enforced in that State in the same way as a Judgment after trial. A Federal Court Default Judgment 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 about certain facts or questions or procedures. For instance, the Plaintiff may stipulate that the Defendant's time to answer the Complaint may be extended, or that the parties 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.

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SUMMARY
1.      Plaintiff files Complaint with court which then issues a summons.
2.      Summons and Complaint is served on Defendant.
3.      If Defendant does not file an Answer, Plaintiff requests the court to enter a Default Judgment.
4.      If Defendant answers Complaint, parties go through Discovery.
5.      Trial.
6.      Judgment.
7.      Post-Judgment Proceedings.
8.      Appeal.

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