Being involved in a lawsuit, especially if you have no previous experience with the court system, can be extremely stressful and confusing. There are numerous papers filed, and the process can take literally years. If you are suing someone or are being sued, here’s a basic overview of what you can expect at each stage of a civil lawsuit.
Pre-Filing
This is the very beginning stage of a lawsuit, right after something that has happened that causes the client to contact an attorney. In this stage, the client presents the attorney with a case. The attorney will conduct basic, though not exhaustive, research to determine if the client has a case, and decide whether or not the attorney wishes to take the case. The attorney may send a demand letter to the other side informing the other side of the client’s desire to file a lawsuit. In some cases, the other side may offer a settlement, though at this early stage the settlement offer is usually very small. After this beginning period has been completed and the attorney feels he or she has enough information to proceed with a lawsuit, the attorney will file a Complaint. If you are the defendant (the person being sued), it is at this stage in the civil lawsuit that you will receive notice that a Complaint has been filed and will need to hire an attorney.
Complaint
A lawsuit actually begins with the filing of a “complaint”. This is a basic legal document that contains a short statement of the legal violation the Plaintiff believes has happened and a suggested “remedy” for this violation. A complaint cites what the law says and may give a basic overview of the facts of the case. A complaint does not have to contain evidence, though depending on the type of case, some attorneys elect to offer some evidence in the hope of obtaining an early settlement offer. In most cases, drafting the Complaint is the least involved portion of the legal process.
Answer
The Defendant (the side being sued) in a lawsuit must then file an answer to a Complaint. An answer is a document in which the Defendant must “admit” or “deny” the allegations in each paragraph of the Complaint. The Defendant also sets out any answers he or she has to the allegations contained in the Complaint. An answer is usually required within 20-30 days of the filing of the Complaint. If an answer is not filed, then the Plaintiff can petition the judge to issue a “Default Judgment”, in which the Plaintiff wins by default. If the Defendant has a claim of their own against the Plaintiff, the Defendant may also file a “Counterclaim” at this time.
The Answer is the Defendant’s analog to the Complaint. It will only provide a brief sketch of the defenses the Defendant has and, much like the Complaint, will likely not contain the full story or much evidence but instead will just be a brief sketch of the Defendant’s understanding of the law. The Defendant may completely deny that he or she should be sued, or may claim that the Defendant can only be sued on one ground instead of all the grounds laid out in the Complaint.
Pre-Trial Discovery
This is the phase in the lawsuit during which evidence that will be used at trial is gathered. The parties typically have a hearing with the judge during which they develop a plan for discovery and agree to an amount of time discovery will take- often 30-45 days. Interrogatories are often used, in which each side sends a formal list of questions to the other side in an attempt to gain relevant evidence. The sides may also request witness lists, documents, etc. from one another and are typically required to hand over such evidence.
Depositions occur during this time. Depositions are when an attorney interviews a witness and the witness’s answer to questions are given under oath.
Each side may use expert witnesses, and often recruits these witnesses at this time. This is to allow the witnesses adequate time to prepare their testimony and also to work out an agreement to pay the witnesses for their testimony. Expert witnesses are paid by the client. Subpoenas may also be issued at this time to compel witnesses to testify, give depositions, or hand over evidence. After Discovery, both sides will have a much better idea of the other side’s case. Consequently, settlement negotiations
Motions
After Discovery, both sides may file Motions with the Court. The most important of these that may be filed is a “Motion for Summary Judgment”. MSJ’s are documents that essentially claim, “Even if you believe everything the other side has said, the law says I should still win.” These documents are lengthy and complex. Much of a lawsuit is designed to prevent the other side from winning on a MSJ.
Other motions may be filed with the Court to narrow the legal scope of the case, prevent certain evidence from being admitted. After all of the Motions are filed, it is not uncommon for a settlement offer to be made and, if the parties are agreeable, for a settlement to be reached. If a settlement is reached, the settlement is a legally binding document, just as if the Judge or Jury had issued a verdict.
Trial
If no settlement is reached, a trial will be held. A jury trial is the typical jury trial often seen on television, while a bench trial is a trial in which the judge makes the decision. Bench trials are often used when there are complex legal issues to be decided rather than simple matters of fact. Witnesses are questioned and further evidence is presented at trial. The depositions given during the discovery period of the case may be used against witnesses if witness testimony conflicts with depositions, or information is gained in depositions that harms one side’s case. At the end of a trial, a verdict is issued. If the Plaintiff wins, the Plaintiff is awarded a particular amount of money. The Plaintiff is not given this money when the verdict is issued, however. Instead, a plan for payment must be worked out with the other side.
Appeal
Most civil cases where the Plaintiff wins a lot of money are appealed, which means that the trial process is gone through again. The court must first rule that an appeal should be granted; the other side typically has thirty days to file an appeal. There also may be post-trial Motions, in which the sides argue about how payment (if payment is awarded to Plaintiff) will be made, the amount of payment, etc.
Collecting Judgment
If the verdict is not appealed and the Plaintiff wins, the Plaintiff must then collect the judgment (the amount of money the court determines is owed to the Plaintiff). This can be a difficult process. If the losing side does not pay the money, the losing side may be held in contempt. Typically, the losing side has to submit further interrogatories revealing his or her financial status. The plaintiff may have the defendant’s wages garnished if the defendant has no other sources of money. Plaintiffs typically only get a large sum of money upfront if they sue a large company with ample resources and the company does not go bankrupt. Bankruptcy is, however, one way companies avoid paying judgments. Obtaining a large sum of money from an individual, unless that individual is very wealthy, can be more difficult.
If you are the defendant and concerned about repaying the money,it’s important to know that the Court will examine your financial status and make a payment assessment based upon that. Many Plaintiffs never collect judgment because the other side either simply fails to pay or does not have the money to pay.
Sources: Federal Rules of Civil Procedure (see here: http://www.law.cornell.edu/rules/frcp/)
