What is Civil Litigation? An Overview of the Civil Litigation Process

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.

Who are the key players in the civil litigation process?

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:

• Depositions. The parties may take depositions of parties and other witnesses. These are live, oral examinations conducted under oath and transcribed by a court reporter.
• Written Discovery. The parties may also request the opposing party to respond to written discovery requests. There are three types of written discovery: interrogatories, requests for admission, and requests for production. Each party is allowed to request a response to a limited number of questions in these categories. The questions must be answered in writing under oath by the responding party. 
  • Interrogatories are open-ended questions intended to gather and clarify information and the other party’s legal and factual assertions in the complaint or the answer. 
  • Requests for admissions are targeted questions asking the responding party to admit or deny specific factual assertions.
  • Requests for production ask the opposing party to produce certain categories of documents, electronically stored information, or tangible items.

Expert Witness Disclosures. If the facts of the case call for expert testimony, the parties must exchange expert witness disclosures. These disclosures include a summary of the expert’s anticipated testimony and any expert report prepared by the witness in support of the testimony to be given at trial. 

Pre-Trial Motions. Prior to trial, the parties may file motions, asking the judge to enter a ruling on discovery disputes, make determinations of law applicable to the trial of the case, consider whether specific evidence should be limited or excluded at trial, or to decide the case on the written filings. The most common pre-trial motion is a motion for summary judgment. The party filing a motion for summary judgment must establish that there are no genuine disputes of material facts and that the case can, therefore, be decided as a matter of law. The way the judge rules on the motion may end part of the case or the entire case, saving the moving party time and money associated with trial.

Pre-Trial Mediation. Many state and federal courts require the parties to attend mediation to attempt to settle their disputes before they are allowed to go to trial. Mediators are independent neutrals who work to help the parties find common ground and negotiated solutions to their differences in the spirit of compromise. If the process is successful, the parties will typically sign a written, legally binding settlement agreement and dismiss the case. If mediation is unsuccessful, the parties will continue to trial.

Trial.  In a “bench” trial, both the law and the facts are decided by the judge. In a “jury” trial the facts are decided by the jury and the law is decided by the judge. 

• • Voir Dire. In a jury trial, the proceedings begin by selecting a jury through a process known as “voir dire” where the judge and the attorneys ask potential jurors questions to determine if they can be impartial in deciding the facts of the case. 
  • Opening Statements. In both types of trials, the case formally begins with opening statements made by the attorney for each side. An opening statement is intended to give the judge and jury an overview of the evidence to be presented.
  • Presentation of Evidence. The plaintiff then presents evidence through direct examination of witnesses. Documents are introduced by the witnesses. The defendant is given a chance to cross-examine the plaintiff’s witnesses. The defendant is also given the opportunity to put on its own witnesses through direct examination. The plaintiff is allowed to cross-examine the defendant’s witnesses.  The plaintiff then calls any “rebuttal” witnesses it has and the defendant cross-examines them. 
  • Closing Argument. After all the evidence is presented, the attorneys for both sides make closing arguments. The purpose of a closing argument is to tie the evidence to the law and demonstrate whether the plaintiff has met its burden of proof. The burden is on the plaintiff to prove its case by a preponderance of the evidence—in other words, that it is more probably true than not.
  • Jury Deliberations and Verdict. After closing arguments, the jury receives instructions on the applicable law and is taken to a separate room to deliberate whether the parties have proved their claims and defenses. The jury then renders a verdict in favor of either the plaintiff or the defendant.  In a bench trial, the judge typically takes the matter under advisement and makes findings and enters judgment in a written order sometime later.

Post-Trial Motions. It is not uncommon for one or more of the parties to file post-trial motions after the trial is over if they are unsatisfied with the verdict or judgment. In a jury trial, the losing party may ask the judge to set aside the verdict as a matter of law or to request a new trial. The defendant may also request the judge to reduce damages awarded by a jury. In addition, the parties may file motions for attorneys’ fees, costs, and pre- and post-judgment interest.

Appeals. Once the judge enters a final judgment, one or more of the parties may file an appeal to the court of appeals within a set deadline. A party who fails to timely file a notice of appeal will forfeit the right to appeal. To succeed on appeal, the appellant must establish that the trial court committed an error of law, a procedural error, or abused its discretion. Appellate courts do not re-try cases or make factual findings unless those findings can be made as a matter of law. 

• • Notice of Appeal. The appellate process is initiated by the filing of a notice of appeal, identifying the judgment or rulings being appealed and providing the court with an advisory listing of the issues the appellant intends to urge on appeal.
  • Record on Appeal. The trial court then prepares and transmits its record of the lower court proceedings to the court of appeals.
  • Briefing. After the trial court transmits the record to the court of appeals, the appellant files an opening brief, arguing its case. The appellee files a response brief, challenging the arguments made in the opening brief. The appellant then files a reply brief.
  • Oral argument. Any party may request oral argument before the appellate judges assigned to decide the case. Oral argument, however, is optional. Oral arguments are generally short and pointed, with each side having just 15 minutes to make their arguments and answer any questions the judges may have.
  • Opinion. After the briefs are filed and oral argument (if applicable) is finished, the court of appeals issues a written opinion on the case. The court may affirm the decisions and rulings in the case, reverse the decisions and rulings in the case, or remand the case back to the trial court for a new trial or additional fact-finding to correct any errors. 
  • Petition for Certiorari. In the event a party is dissatisfied with the court of appeals’ opinion or perceives that the court has committed an error, that party may file a “petition for certiorari” with the highest appeals court in the jurisdiction, usually called the Supreme Court, within a set time frame. The Supreme Court is not required to hear the case and will only grant the petition for certiorari if there are compelling reasons for doing so. If the Supreme Court denies the petition for certiorari, then the appellate process comes to an end and the court of appeals’ opinion stands. 
  • Supreme Court Briefing and Oral Argument. If, on the other hand, the Supreme Court grants the petition for certiorari, then the parties will brief the case and make oral arguments to the Supreme Court as they did in the court of appeals. 
  • Supreme Court Opinion. The court may affirm the decisions and rulings in the case, reverse the decisions and rulings in the case, or remand the case back to the trial court for a new trial or additional fact-finding to correct any errors. 

Enforcement of Judgment. Once a judgment is final and the appeals process has run its course, the prevailing party may be able to collect damages from the opposing party. The prevailing party may need to conduct a judgment debtor examination to gather information about the opposing party’s assets. The prevailing party may also go through a process to garnish the opposing party’s wages and bank accounts and/or to attach or seize real property owned by the opposing party to satisfy the judgment.