Filing a Lawsuit
Filing a complaint with the Court Clerk starts a lawsuit. The plaintiff’s attorney prepares the complaint–a written statement setting forth the facts of the dispute. It also outlines what relief the court is asked to grant. In most instances, the relief sought is a monetary judgment in favor of the plaintiff.
The defendant has 30 days after being served to file an answer with the court. The answer may contain a general denial or admitted separately.
After the complaint is filed, the Court Clerk issues a summons. This written notice advises the defendant that a lawsuit has been filed.
Service is the physical conveyance of the Summons & Complaint to the defendant’s office or residence either by the County Sheriff or private process server.
Some states allow the debtor to be served through substitute service.
The defendant’s time to answer the summons is measured from date served, not the filing date with the court.
After action begins, additional documents may be served by mailing copies to the opposing side. The person who mails the documents swears to an affidavit of mailing showing the person to whom the papers were sent, the address and date. Hand-delivered documents are admitted as evidence, provided the person served signs the original copy. The court will not accept any document for filing not properly served on the other party.
Once the defendant files its answers, both parties are given an opportunity to discover all of the evidence the other side has to support its version of the dispute. Common methods include:
Interrogatories: Written questions must be answered in writing under oath.
Depositions: Often referred to as examination before trial, each party is permitted to question the other’s testimony in the presence of a Court Reporter. The written transcript may be used at the trial.
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 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.
A motion is a written request to the court for specified relief. Some motions include:
Motion for Summary Judgment: A request for 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.
Motion to Dismiss: It may be made as to all or part of a lawsuit. It is filed before or after the answer. The motion usually means there is a legal reason why the lawsuit cannot go forward. Reasons include the time to sue on the claim, statute of limitations has expired or the court lacks jurisdiction. Sometimes a motion will be made by advice known as an order to show cause. This is used to obtain an expedited hearing on a motion or to obtain temporary relief prior to the hearing. The court can grant these and order the opposing party to show cause or give reasons why the person seeking relief should not obtain it.
Motion to amend: This is a request to change part of the lawsuit.
Trials & Judgment:
After both sides have completed discovery they certify to the court they are ready for trial. A judge will hear the case unless either party requests a jury. In most cases evidence may be introduced at trial only through the testimony of witnesses who testify to facts based on personal knowledge. Hearsay evidence–that is evidence about which the testifying witness has no personal knowledge cannot be admitted as testimony.
Affidavits, letters and other documents are hearsay evidence unless the witness knows the contents and they are relevant to the lawsuit. The plaintiff has the burden of establishing its case through its witnesses and other evidence. If it fails to do this, the case may be dismissed. A defendant need not call any witnesses 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. If it does not result in the plaintiff getting the relief which has been awarded, post-judgment proceedings must be pursued, if necessary, to enforce the judgment.
If a defendant who has been served with the copies of the Summons and Complaint and fails to file an answer within the required time or fails to appear in trial, judgment by default is awarded to the plaintiff. This results in automatically granting plaintiff the relief requested.
A stipulation is an agreement between the parties. If the parties agree to settle prior to trial, this agreement will be reduced to a written stipulation agreement, which is filed with the court terminating the lawsuit.
Caine & Weiner suggests you seek counsel in all matters concerning litigation. This overview of the legal process is not to be construed as legal advice. Litigation is a slow process. Crowded court dockets and defendant tactics can often delay judgment for extended periods of time.