Written By: Joseph J. Nardulli
There are some who litigate regularly and if you do, most of what is to follow is familiar to you, but if you are in a company that seldom litigates or an individual who has never set foot in a courtroom then this article, hopefully, will take some of the mystery out of what happens during a civil lawsuit, and some of the terms that are bantered about between lawyers, which have little meaning to the non-lawyer.
Pleadings(s) or In The Beginning…
Everything, including a lawsuit, has to have a structure that defines who the participants (“litigants”) are, what they desire out of the litigation (“Causes of Action”) and from whom they expect to receive it.
Civil lawsuits are commenced with a document entitled a Complaint. In the Complaint the person commencing the lawsuit, referred to as the “Plaintiff”, sets out the following: (i) who Plaintiff is suing; (ii) the facts, as Plaintiff understands them, that Plaintiff believes gives Plaintiff the right to sue; (iii) the theories of law that entitle the Plaintiff to sue; and (iv) the remedy that is desired against the person or company being sued. These can be monetary in nature, in which case they are generally called “damages” or they can be some other remedy: For example, having an Injunction granted which would prohibit the other party, usually referred to as the “Defendant”, from doing a particular act, or having the Court order the Defendant or Defendants to do a particular thing. In all lawsuits of a civil nature the Plaintiff must prove generally, by a preponderance of the evidence, that Plaintiff’s evidence has a higher probability of being true than the evidence produced by the Plaintiff’s opponent, the Defendant or Defendants, and that this evidence fits squarely within at least one of the Causes of Action, i.e. theories of recovery that the Plaintiff has pled in the Complaint. If, at Trial or Arbitration, the Plaintiff can prove one or more of the Causes of Action, then Plaintiff has established the liability of the Defendant. However, liability alone is not enough. Plaintiff must also show that the acts of the Defendant have proximately (legally) caused the Plaintiff to suffer economic damages, entitling the Plaintiff to monetary damages or some other remedy.
If a party is being sued (“Defendant”), than generally the Defendant will file, within a specified number of days, an Answer which sets forth the Defendant’s denial(s) of the matters set forth in the Complaint (“allegations”) and generally also includes what are known as Affirmative Defenses. Affirmative Defenses are allegations that even if Plaintiff can prove its case, Plaintiff still cannot recover against the Defendant, perhaps because the Statute of Limitations has run, the obligation sued upon by law had to be in writing and it was verbal, that the real cause of the injury was caused by someone else, or was caused by the Plaintiff. The Defendant, rather than filing an Answer, might instead file what is generally referred to as a Demurrer. A Demurrer is a pleading that asserts that even if one accepts everything that the Plaintiff has stated in the Complaint as being true, that Plaintiff still legally has not stated facts which would allow the Plaintiff to recover any relief monetary or otherwise from the Defendant. The Defendant can bring a Demurrer to all the Causes of Action in the Complaint or only certain Causes of Action. A Demurrer is essentially a Motion before the Court, legalese for a request to the Court, which is set on a specified number of days out from the filing, of, in this case, the Demurrer, giving the Plaintiff in the case the opportunity to file an opposition in writing to be filed with the Court. At the time of the hearing the attorneys for both sides appear in Court before the Judge assigned to the case to make a ruling on whether the Demurrer should be granted or denied.
The Defendant can also, at the time that Defendant Answers, file Defendant’s own Complaint. This Complaint is referred to as a Cross-Complaint. The Cross-Complaint can be directed at the Plaintiff or it can be directed at a third party or to both the Plaintiff and a third party. The Cross-Complaint must also be answered. This document is referred to as an Answer to the Cross-Complaint. The Cross-Complaint is treated in all respects as the original Complaint; for instance, a Demurrer can also be filed against the Cross-Complaint.
Discovery… or the “Facts and Nothing But the Facts”
The next stage of any civil lawsuit is what is known as Discovery. As its name implies, this is the stage at which each side to the lawsuit is entitled to discover the facts that the other side intends to present at the time of trial.
Discovery can generally be broken down into two basic categories:
- Written Discovery
- Depositions
Written discovery, depending on the facts of the case, and strategic concerns, is usually the first form of discovery that is employed by the attorneys. Written discovery takes various forms:
- Interrogatories, which are written questions addressed to the opposite party asking primarily questions regarding the facts of the case, witnesses, existence and identity of documents, etc.
- Request for Production, which is demand(s) made to the opposition to produce the documents that the opposition has in its possession which are relevant to the issues in the case, so that they may be reviewed and copied by the demanding (asking) party.
- Request for Admissions are requests made by the party who is serving them on the opposite party to admit the genuineness of certain documents and to admit the truth of certain facts which are important to the case.
If you are involved in litigation your attorney will provide you these various forms of written discovery, and generally will ask you to make a “first pass at them”; then the attorney will sit down with you and aid you in answering the particular item of discovery. Some of this discovery may be improper in terms of what is being asked for or the way in which the information is being requested. In that case, your attorney will file objections to the discovery, indicating the objection and the reason for the objection.
Depositions
A deposition is conducted when a party calls a witness or potential witness to testify under oath before a shorthand reporter empowered to swear the person to testify under oath, under penalty of perjury. Some depositions are videotaped today so that a portion of a person’s deposition can be shown to the Judge or jury at trial.
The parties or their representatives are often deposed. Often third party witnesses to the events that are the subject of the lawsuit are also deposed.
If an attorney wishes to depose the opposing party, then all that is required is that the attorney send a Notice of Deposition through the mail to the opposing attorney. This Notice of Deposition can also require the person whose deposition is being taken to produce various documents which are listed on the Notice of Deposition. If a third party witness’s deposition is to be taken, then a process server must serve that person personally with a Subpoena (a court document) which requires the witness to appear at the attorney’s office for the deposition. In this case documents can also be required to be produced.
Your attorney will prepare you for your deposition if it is noticed. He will explain how the proceedings will be conducted and will warn you against common mistakes made by persons being deposed. The attorney should also help you in identifying and gathering up any documents that are requested at the deposition. Depositions are generally conducted in the office or conference room of the attorney taking the deposition. There is a shorthand reporter who administers the oath and records, stenographically, all the questions and answers. Your attorney will be with you to “defend the deposition” – to make objections to improper questions and, if necessary, advise you when not to answer a question. Parties to the lawsuit are entitled to attend depositions as well as their attorneys.
At the conclusion of the deposition everything that is said during the course of the deposition is reduced to a transcript, which is placed in booklet form. If your deposition is taken you will be asked to read it and, if appropriate, correct any errors in the deposition, and then sign the deposition under penalty of perjury.
Pre-Trial Settlement
Pre-trial settlement discussions can take place at any time during the course of the litigation; sometimes cases are settled prior to having to respond to the Complaint.
There are three basic ways to approach settlement. The first is the time-honored negotiating that takes place between the attorneys, as they evaluate the strengths and weaknesses of each of their cases. This is the method by which most cases are settled. In the second method the Court becomes involved, and holds what is known as a Mandatory Settlement Conference (“MSC”) where a Judge meets with the parties and attempts to facilitate a settlement by his or her evaluation of the merits of both sides of the case. The third method, which has grown in popularity in the last ten years or so, is voluntary mediation. In mediation the parties hire a retired Judge or an attorney specially trained and experienced in conflict resolution to meet with the parties to bridge the gap between the respective parties’ positions.
Trial
Although the majority of cases are settled before trial, the last stage of any litigated case is the conducting of either a jury trial or a trial before a Judge, referred to as a “Bench Trial”.
At this stage, although your attorney will be burning the midnight oil night after night, be prepared to spend a great deal of time being involved in the trial preparation, including being prepared for testimony, aiding the attorney relative to the various exhibits that will be utilized at trial, etc.
Not surprisingly, a jury trial in a civil case takes a great deal more preparation than preparing for a Bench or Judge Trial. The decision to utilize a Judge alone or demand a jury trial is a complicated one that your attorney and you will struggle with together. Many factors enter into this decision, not the least of which is the additional cost involved in preparing for and conducting a jury trial.
This outline of what goes on in a civil litigation case is by no means intended to be a complete exposition of all the complex issues and procedural matters that are dealt with in the litigation process, but is only intended to give an overview of the process, and if you find yourself in litigation, you will at least understand the basic steps that you will be going through, and hopefully, this outline will help you deal with the tension and anxiety which accompany all litigation.