Civil Litigation
Civil Litigation
The early phases of civil actions are characterized by many different kinds of motions, which are requests to the judge, and a complex process of mutual fact-findings between the parties that is known as discovery. A lawsuit will start with the pleadings, the beginning stage of a lawsuit in which parties formally submit their claims and defenses. Every case includes an initial complaint and a defendant response, and some cases include a counterclaim made by the defendant against the plaintiff (the one to initiate the lawsuit) and the plaintiff’s reply to the defendant’s counterclaim. After the pleadings, the parties may make various motions. Motions in the early stages of a lawsuit usually aim to dismiss the lawsuit, have it moved to another venue, or compel the other party to act in certain ways during the discovery process.
Initial Pleadings, and Motions to Dismiss
The first papers filed in a lawsuit are called the pleadings. These include the plaintiff’s complaint and then (usually after thirty or more days) the answer or response from the defendant. The answer may be coupled with a counterclaim against the plaintiff. In effect, the defendant becomes the plaintiff for the claims he or she has against the original plaintiff. The plaintiff may reply to any counterclaim by the defendant.
State and federal rules of civil procedure require that the complaint must state the nature of the plaintiff’s claim, the jurisdiction of the court, and the nature of the relief that is being asked for (usually an award of money, but sometimes an injunction or a declaration of legal rights). In an answer, the defendant will often deny all the allegations of the complaint or will admit to certain of its allegations and deny others.
A complaint and subsequent pleadings are usually quite general and give little detail. Cases can be decided on the pleadings alone in the following situations: (1) If the defendant fails to answer the complaint, the court can enter a default judgment, awarding the plaintiff what he or she seeks. (2) The defendant can move to dismiss the complaint on the grounds that the plaintiff failed to “state a claim on which relief can be granted,” or on the basis that there is no subject matter jurisdiction for the court chosen by the plaintiff, or on the basis that there is no personal jurisdiction over the defendant. The defendant is saying, in effect, that even if all the plaintiff’s allegations are true, they do not amount to a legal claim that can be heard by the court. For example, a claim that the defendant induced a woman to stop dating the plaintiff (a so-called alienation of affections cause of action) is no longer actionable in US state courts, and any court will dismiss the complaint without any further proceedings. This type of dismissal is occasionally still called a demurrer.
A third kind of dismissal can take place on a motion for summary judgment. If there is no triable question of fact or law, there is no reason to have a trial. Take a situation involving a promissory note as an example. A promissory note is a financial instrument that contains a written promise by one party (the note’s issuer or maker) to pay another party (the note’s payee) a definite sum of money, either on demand or at a specified future date. So, in this case, the plaintiff sues on a promissory note and, at deposition (an oral examination under oath), the defendant admits having made no payment on the note and offers no excuse that would be recognizable as a reason not to pay. There is no reason to have a trial, and the court should grant summary judgment.
Discovery
If there is a factual dispute, the case will usually involve some degree of discovery. This means each party tries to get as much information out of the other party as the rules allow. Until the 1940s, when discovery became part of civil procedure rules, a lawsuit was frequently a game in which each party hid as much information as possible and tried to surprise the other party in court.
Beginning with a change in the Federal Rules of Civil Procedure adopted by the Supreme Court in 1938 and subsequently followed by many of the states, the parties are entitled to learn the facts of the case before trial. The basic idea is to help the parties determine what the evidence might be, who the potential witnesses are, and what specific issues are relevant. Discovery can be done in several ways. A party may serve an interrogatory—a written request for answers to specific questions–on his or her adversary. Or a party may depose the other party or a witness. A deposition is a live question-and-answer session at which the witness answers questions directed to them by one of the parties’ lawyers. Their answers are recorded verbatim and may be used at trial. Each party is also entitled to inspect books, documents, records, and other physical items in the possession by the other party. This is a broad right, as it is not limited to just evidence that is admissible at trial. Discovery of physical evidence means that a plaintiff may inspect a company’s accounts, customer lists, assets, profit-and-loss statements, balance sheets, engineering and quality-control reports, sales reports, and virtually any other document.
The lawyers, not the judge or jury, run the discovery process. For example, one party simply makes a written demand, stating the time at which the deposition will take place or the type of documents it wishes to inspect and make copies of. A party unreasonably resisting discovery methods, whether depositions, written interrogatories, or requests for documents, can be challenged, however, and judges are often brought into the process to push reluctant parties to disclose more information or to protect a party from irrelevant or unreasonable discovery requests. For example, the party receiving the discovery request can apply to the court for a protective order if it can show that the demand is for privileged material (e.g., a party’s lawyers’ records are not open for inspection) or that the demand was made to harass the opponent. In complex cases between parties, the discovery of documents can run into tens of millions of pages and can take years. Depositions can consume days or even weeks of an party’s time.
Trial
At trial, the first order of business is to select a jury. The judge, and sometimes the lawyers, are permitted to question the jurors to be sure that they are unbiased. After the jury is sworn in and seated, the plaintiff’s lawyer makes an opening statement, laying out the nature of the plaintiff’s claim, the facts of the case as the plaintiff sees them, and the evidence that the lawyer will present. The defendant’s lawyer may also make an opening statement, or they may reserve their right to do so at the end of the plaintiff’s case.
When all testimony has been introduced, either party may ask the judge for a directed verdict—a verdict decided by the judge without advice from the jury. This motion may be granted if the plaintiff has failed to introduce evidence that is legally sufficient to meet their burden of proof (the obligation to prove their claim) or if the defendant has failed to do the same on issues on which they have the burden of proof. If the judge refuses to grant a directed verdict, each lawyer will then present a closing argument to the jury. The closing argument is used to tie up the loose ends, as the attorney might try to bring together various seemingly unrelated facts into a story that will make sense to the jury. When a jury reaches a verdict, it delivers it in court with both parties and their lawyers present. The jury is then discharged, and control over the case returns to the judge.
Practice Question
In civil litigation, what is the first step of the process?
Select a jury
Initial pleading
Presenting evidence
Opening statements
Additional Resources
Chapter 8: Parties in a Civil Case
Chapter 9: Steps in a Civil Case
References and Resources
Listed below are the references and resources used to curate this module.
Barone, Adam (2020). Promissory Note. Investopedia. Retrieved from investopedia.com/terms/p/promissorynote.asp.
Cornell Law School (2020). Pleading. Legal Information Institute. Retrieved from law.cornell.edu/wex/pleading.
Lumen Learning (2020). Business Law. Lumen Learning. Retrieved from courses.lumenlearning.com/masterybusinesslaw/.
Previous: State & Federal Courts
Next: Alternative Dispute Resolution