A lawsuit is a request to a court to determine a
dispute between parties, or to compel one party to do an act, such as
paying a legitimate debt. The party that commences the lawsuit is called
a Plaintiff and the other party a Defendant.
Lawsuits are governed by rules of procedure which
set forth the steps each party must take in order to obtain a ruling
from the court.
Each state has its own rules of procedures. The
following explanation is a general outline.
In most states, and in the Federal Court
System, a lawsuit starts when a Complaint is filed with the
clerk of the court. A Complaint is a written statement,
prepared by the plaintiff's attorney, setting forth the basic
facts of the controversy, and the relief the court is asked to
grant. In most instances, the relief sought is a Judgment
stating that the Defendant owes the Plaintiff money.
When the Complaint is filed, the clerk
issues a Summons. This is a written notice to the defendant that
a lawsuit has been started against the Defendant. The Defendant
is directed to file an Answer with the court within the time
limits set by the rules of procedure. The time limit
is commonly thirty days. The Answer must contain a denial of
the allegations that the Defendant disputes, as well as any
affirmative defenses, and may include counterclaims. In lieu of
an Answer, the Defendant may file a Motion to Dismiss.
- (notifying the defendant that a
lawsuit has been filed):
Service is the device whereby the
Defendant physically receives a copy of the Summons and
Complaint. It is usually accomplished by having the Summons and
Complaint delivered to the Defendant by either the local sheriff
or a private process server. Many States provide other
methods (sometimes called Substitute Service) to give the
Defendant notice of the lawsuit. The Defendant's time to answer
is measured from when the Summons is served, not from when the
lawsuit is filed with the court.
After the Defendant is served, other
documents may be served by simply mailing copies to the other
side. The person who does the mailing then swears to an
Affidavit of Mailing which includes the person to whom the
papers were mailed, the address the papers were mailed to, and
the date. Sometimes documents will be hand delivered; the person
served will be asked to admit to Service by signing the
original. Originals are always court file documents. A copy of
all documents in a Lawsuit must be served on all parties, or the
court will not accept them for filing.
After the Defendant files an Answer, the parties
are given an opportunity to determine, or Discover, all of the evidence
the other side has to support its version of the dispute. Some of the
most common methods to do this are:
This is a set of written questions which must be answered in writing,
These are sometimes called Examination Before
Trial. Depositions permit each party to question the other orally. The
testimony is recorded by a court reporter and a written transcript is
created. This transcript may then be used at 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 transactions set forth in the Complaint. In
many states, and in the Federal Courts, 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.
Common motions are:
Motion To Dismiss
- This is filed either before or after the Answer. If before, it
usually means that there is a legal reason why the lawsuit
cannot go forward, such as the expiration of the Statute Of
Limitations, or the court's lack of authority to order the
Defendant to do anything (Lack of Jurisdiction). A Motion To
Dismiss may be made on all or part of a lawsuit.
Motion for Summary Judgment -
This is a request to 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. If the motion asks the court to decide
some, but not all, of the issues in the lawsuit, it is called a
Motion for Partial Judgment.
Order to Show Cause:
Sometimes, a motion will be made by a device known as an Order
to Show Cause. This is used by the Plaintiff to obtain an
expedited hearing on a motion, or to obtain temporary relief
prior to a hearing. These are granted by the court without the
other party. The court orders the other party to Show Cause, or
to give reasons why the entity seeking relief should not obtain
- This is a request to change part of the lawsuit.
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When both sides have completed Discovery, they certify this to the court
in which the case is pending. The court then sets a trial date. Unless
one party requests a jury, only a judge will hear the case. In most
State Courts and the Federal Courts, Evidence may be introduced at trial
only through the testimony of witnesses who can testify to facts based
on personal knowledge. The court cannot consider Hearsay Evidence, that
is, evidence about which the testifying witness has no personal
knowledge. Affidavits, letters and other documents are Hearsay Evidence
unless the witness knows the contents, and the contents are relevant to
the issues of the lawsuit. The Plaintiff has the sole burden of
establishing its case through its witnesses and other evidence; if the
Plaintiff fails to do this, the case will be dismissed. A
Defendant does not have to produce any witnesses at all 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. It does not result in the plaintiff getting
the relief that is awarded. Instead, Post-Judgment Proceedings are used
to enforce the Judgment.
If a Defendant is served with copies of the Summons and Complaint, and
fails to file an answer within the time required, or if the Defendant
answers but fails to appear at trial, the Plaintiff will be awarded a
Default Judgment. This results in automatically granting Plaintiff the
relief requested in the Complaint, usually without a formal hearing or
trial. A Default Judgment from a State court may be enforced in that
State in the same way as a Judgment after trial. A Federal Court Default
Judgment may be enforced anywhere in the United States.
This is a common term used in litigations. A Stipulation is an agreement
between the parties or their attorneys about certain facts or questions
or procedures. For instance, the Plaintiff may stipulate that the
Defendant's time to answer the Complaint may be extended, or that the
parties agree to certain facts. If the parties agree to settle the case
prior to trial, this agreement will usually be reduced to a written
Stipulation which is then filed with the court, thereby terminating the
1. Plaintiff files Complaint with court
which then issues a summons.
2. Summons and Complaint is served on
3. If Defendant does not file an Answer,
Plaintiff requests the court to enter a Default
4. If Defendant answers the
go through Discovery.
7. Post-Judgment Proceedings.
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