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What to Expect in a Civil Action

By Douglas H. Flint

The average person does not have direct experience with our nation's legal system—especially the processes and procedures by which civil cases are handled in our courts. Uncertainty and a lack of understanding can cause unnecessary stress and anxiety for people. It is for this reason that Flint, Connolly & Walker, LLP seeks to inform its clients who find themselves involved in a civil case in our courts.

A civil case begins with a Complaint, which is what many people call a lawsuit. In the Complaint, a plaintiff (the person who filed the suit) states his or her problem or case against one or more defendants (the person whom the plaintiff claims did something wrong). A Complaint will describe the factual and legal grounds that the plaintiff has for bringing a lawsuit against the defendant.

After filing, the Complaint is then served on the defendant, usually by hand-delivering a copy of the Complaint to the defendant at his or her residence. This is normally done by the sheriff's office or a county marshal. In the State Court system the defendant usually has 30 days to file an Answer. He/she will admit or deny the allegations made by the plaintiff and assert defenses (such as prior payment, or that the claim is legally barred by some other legal doctrine). If no Answer is filed, the plaintiff is entitled to a judgment by default.

With the Answer, the defendant is also allowed to file a Counterclaim against the plaintiff. In other words, the defendant can sue back against the plaintiff by stating that it was the plaintiff who did something wrong. Counterclaims take many forms, depending on what kind of liability the defendant claims the plaintiff has.

Sometimes after the Complaint and Answer, it will become evident that other persons or parties should be present in the case. An example might be an instance where there was a three-car auto accident and two drivers operated their cars negligently, but only one was sued. In such a case, the defendant may file documents to add other parties to the case. Once the Complaint and Answer are filed, the issues for the case are formed. The issues that are disputed between the parties are the ones that are decided by the court.

When the issues are formed, the parties will typically engage in discovery. Each party has a right to ask written and oral questions and request information from the other side. The purpose of this exercise is so that each party may attempt to learn more about the facts and theories relied upon by the opposite party, the evidence and documents that support their case, and the names of witnesses who might have seen or heard important events relating to the case. Discovery can sometimes be a complex and lengthy process—usually dependent on the intricacies of the case. Likewise, extensive discovery is often a very expensive aspect to the litigation of a case. The lawyer and legal staff time involved can be quite considerable and other costs, such as travel and the expense of court reporters to take down depositions, can drive the costs of litigation up.

In addition, the parties to a lawsuit are able to obtain information from others in the discovery process (such as a doctor who treated the plaintiff's injuries, or a witness to an agreement). This is typically achieved through the use of the subpoena power of the courts.

Discovery usually continues for six months from the time that the Answer is filed, but is sometimes extended to a longer period when there is difficulty getting the necessary discovery completed within the initial six-month period. Cases in federal court proceed on a slightly different and usually shorter schedule.

Sometimes lawyers file motions with the court in order to have the case decided without a trial. There are several different types of motions that can accomplish this result but all of them seek to force an early end to the litigation. Not all cases are suited to having motions of this nature filed. Usually, these motions are filed when one party contends that it is entitled to prevail in the case no matter what a judge or jury might conclude about the facts. An example of this might be a Motion for Summary Judgment filed in a contract case where one party is able to show that a contract was never officially entered between the parties.

Often, the court will insist that the parties participate in a supervised effort to settle their case without a trial. This is usually done with a mediator who will act as a neutral third party to try to help the sides come to a compromise agreement. The mediation process is often very helpful even if the matter is not completely settled at mediation (mediations do have a high success rate for settling civil cases). Often, even if a case is not settled at mediation, the parties are able to settle part of their case or narrow the issues that will need to be eventually tried in court.

If the case is not settled or ruled on by the court prior to trial, the case may proceed to the trial stage. Trials may be held before a judge or a jury. Either party in a civil case is entitled to demand a jury trial and if such a demand is made by anyone, the case must be tried by a jury.

The court will usually require that the parties submit a Pre-Trial Order which identifies certain basic aspects of the trial that will take place. It serves as a sort of road map for the trial so the court and all parties will have the basics available to them: witnesses, the evidence to be used at trial, the lawyers who will try the case, and a basic summary of the factual and legal issues for the trial.

At the trial, each side will present its case to the judge or jury. If the plaintiff fails to show all of the necessary facts to prove his or her case, the defendant will be entitled to a ruling, or a Directed Verdict, in his or her favor. Likewise, if the defendant fails to set up sound defenses or legitimate facts to controvert the case presented by the plaintiff, then the plaintiff may be entitled to a Directed Verdict.

If neither party is granted a Directed Verdict by the judge, then the case will be submitted to the jury (or the judge if the case is a non-jury trial) and the facts will be decided based on a preponderance of the evidence—which means that there is more evidence in favor of the person receiving the verdict than the opposite party. This burden of evidence is sometimes described as "which story is more likely" or "who proved at least 51 percent of the evidence that persuades the judge or jury."

Once the judge or jury returns its verdict, the verdict becomes the Judgment of the court. In general, all parties have a right to appeal a court's final judgment. Usually the only issues for an appellate court to decide are whether or not the trial court made any mistakes in its handling of the case. On appeal, the case will not be re-tried or started over. Only if the Appellate Court finds an error and remands the case will the case be re-tried, which would be back in the trial court.

Douglas H. Flint is a partner in the law firm of Flint, Connolly & Walker, LLP where he represents and assists both businesses and individuals with their legal matters.

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