This article provides general information only. It is not legal advice. Individuals or entities considering legal action should consult with an attorney to understand the unique aspects of their case and the court systems in which their cases may be filed or pending. Factual and legal nuances as well as the amount in controversy may alter the general processes outlined below. If you are contemplating filing a lawsuit or have been served with a lawsuit, please contact our litigation group.
What is civil litigation?
The term “civil litigation” refers to the process of resolving a non-criminal dispute in local, state, or federal court. Civil disputes include those related to contracts, real estate or personal property, land use, employment, civil rights, fraud, negligence, personal injury, and intellectual property. Each of the phases of civil litigation discussed below is governed by a complex and detailed set of local, state, or federal rules and regulations. This article discusses the most common litigation track under those rules and regulations. The reader is advised, however, that at each new phase of the case, the facts and law applicable to a specific case may dictate an alternate process.
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Plaintiff |
A plaintiff is the individual or entity who files the lawsuit in a local, state, or federal court. |
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Defendant |
A defendant is the individual or entity against whom the lawsuit is filed. |
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Attorneys |
The plaintiff and defendant are represented by different attorneys. |
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Judge |
The judge is an impartial decision-maker who presides over the case. |
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Jury |
In some cases, the case is tried to a jury comprised of citizens who are asked to evaluate the evidence and enter a decision in the case based on that evidence. |
What happens before a lawsuit is filed in court?
Prior to filing a lawsuit, a potential plaintiff typically consults with an attorney. The attorney and the plaintiff establish the nature of the dispute, determine if there are any steps that need to be taken before the lawsuit can be filed, evaluate whether the case can be filed within the legal timeframe for doing so, identify the court where the case must be filed, gather evidence, and weigh the pros and cons of filing a lawsuit.
Once it is decided that the plaintiff is going to file a lawsuit, the attorney prepares a legal document called a “complaint.” The complaint includes the factual allegations necessary to support each element of the legal claims asserted against the defendant and ends with a request for relief in which the plaintiff seeks damages or an injunction.
What happens after a lawsuit is filed in court?
- Filing the Complaint. The complaint, like all pleadings, is filed electronically through a court filing system by the plaintiff’s attorney. The plaintiff is required to pay a fee at the time of filing. The amount of the fee varies based on the court and the type of case filed.
- Serving the Complaint. After the complaint is filed, it is served on the defendant. There are different ways to serve the complaint depending on the court rules applicable to the facts of the case. These may include personal service, service by mail, or service by publication. Service must be completed within a set timeframe, or the case may be dismissed.
- Filing an Answer, Counterclaims, Crossclaims, or a Motion to Dismiss. Upon receipt of the complaint, the defendant is given a certain number of days to respond. The defendant has several options for doing so. Most commonly:
The defendant may file an “answer.” The defendant will pay court fees at the time of the filing. In the answer, the defendant must admit or deny each of the allegations in the complaint and assert affirmative defenses, if any, to the claims in the complaint. The defendant may also include “counterclaims” in its answer and affirmatively assert claims back against the plaintiff or assert “crossclaims” against third parties not already part of the case.
In the alternative, the defendant may file a “motion to dismiss” the complaint. A motion to dismiss may assert, for example, that the court lacks jurisdiction to hear the case, improper service of the complaint, or failure to state a claim upon which relief may be granted. The plaintiff is allowed to respond to the motion to dismiss and argue against it and the defendant may file a reply in support of its motion. At that point, the judge assigned to the case will either dismiss the case or order the defendant to file an answer.
Failure to respond to the complaint may result in a default judgment entering against the defendant. Therefore, it is critical that you contact an attorney immediately if you are served with a complaint.
- Initial Disclosures. After the defendant has filed its answer, both parties are required to file “disclosures.” In their disclosures, the parties must identify the names and contact information of anyone likely to have discoverable information relevant to the claims and defenses of any party and a brief description of the information those individuals possess. The parties must also put together a list of relevant documents and things in their possession or control and make those items available for review and copying by the other party. The parties must provide a description of their damages and identify any applicable insurance policies.
- Discovery. After filing their initial disclosures, the parties then engage in a process called “discovery” in which they gather and exchange information so that they can evaluate and prepare the evidence in their respective cases. The court rules applicable to discovery are intended to promote transparency and allow both parties equal opportunity to access the facts and documents pertinent to the case. Discovery occurs subject to deadlines set by the applicable court rules. The parties may ask the judge to change these deadlines, if warranted, but there will be a limit to the length of the discovery phase of a case. There are two basic types of discovery: