Civil Litigation and Appeals
Introduction
If a dispute arises and informal attempts at resolution fail, the most common method used to resolve disputes and enforce one’s rights is through lawsuits and the court system. If the amount at issue is below a certain dollar figure, the parties may be able to use "small claims" court to resolve the issue. However, courts and formal lawsuits are not the only option for people and businesses involved in disputes. The parties can agree to have a mediator resolve a dispute, or may agree to binding arbitration of a dispute. These out-of-court options are two methods of "alternative dispute resolution."
Whether you are suing someone or being sued, or being called as a witness, a lawsuit is a complicated legal process, and it can be full of unpleasant surprises and frustrating delays. There are at least two parties to every action, and that means the schedule and the events which take place can be out of your hands. Nonetheless, some things happen in the same order in most litigation, and you can at least get a general idea of what's likely to happen. It will also help to know some of the words and phrases that come up in a lawsuit.
Civil Litigation
A civil action, begins with a Complaint, usually accompanied by a Summons. A Complaint is a legal document that lays out the claims that the Plaintiff (the person or business bringing the lawsuit) has against the Defendant (the person or business being sued). Typically, a lawyer will prepare this document.
Summons and Complaint
A civil action is officially commenced in one of two ways. In some states and in federal court, filing the Summons and Complaint with the court commences the action. Typically, serving the Summons and Complaint on the other party commences the action. The Defendant then has to answer or respond to the Complaint within a certain time. The Answer says what portions of the Complaint, if any, the defendant admits to, what the Defendant contests, what defenses the Defendant may have, and whether the Defendant has claims against the Plaintiff or any other party.
Default
If the Defendant does not respond to the Complaint, the court may enter a default judgment against the Defendant. If the Answer contains a counterclaim or a third-party complaint, the party against whom that claim is made also has to answer within a certain time.
Discovery
The parties exchange documents and other information about the issues relevant to the litigation, by a process called Discovery. Discovery can take three forms: written questions (usually Interrogatories) which must be answered under oath; document production; and depositions, which are formally transcribed and sworn statements taken in front of a court reporter or other court officer. The information is used in preparing the case for trial.
Motions
In many cases, one or both of the parties will try to dispose of the case, or a portion of it, by motion. Basically, the parties present to the court those issues that are not in dispute, either because the parties agree as to the facts, or because application of the law to the facts dictates a result. This is a hard concept for lay people. The theory is that, if a claim or lawsuit cannot possibly win, it is better for the judge to deal with it before wasting time or money. Unfortunately, motion practice can be lengthy and expensive.
Trial
If the parties do not reach an agreement, and if the matter is not disposed of by motion, the case will go to trial. In most civil cases, either party can choose to have a jury. The decision of whether or not to request a jury is an extremely important one, and seeking the advice of an attorney is highly recommended. At trial, the attorneys (or the parties, if they are not represented) present evidence and arguments for each side, and the judge or jury decides the unresolved issues. Once the judge or jury has reached a decision, the judge will order that Judgment be entered for the party who wins. The judge may also order that one party pay the other's attorneys' fees, although such awards are unusual.
Appeal
Either or both parties can appeal a judge's decision to a higher court. However, it is unusual for an appeals court to overturn a judge's decision.
Alternative Dispute Resolution
Sometimes, the parties can voluntarily resolve all their issues through alternate dispute resolution such as mediation or a negotiated settlement. The parties can also agree to binding arbitration, and some contracts require binding arbitration. If a settlement is reached, the settlement agreement resolves all issues between the parties. Typically, the court is either not involved or is involved only informally. Judicial approval of civil settlements is usually only required when one of the parties is a minor, or when there is a class action, or in other special circumstances that do not typically arise in most litigation.