A civil lawsuit follows a certain pattern but can vary significantly due to decisions that each side makes. Despite what most people believe, less that 5% of lawsuits go to trial. Most are settled or dropped before trial. There is an ever growing trend for parties to mediate or arbitrate a dispute.
This page give a general outline of how a lawsuit is handled and many of the terms that someone will hear during a lawsuit. If you have an potential dispute, please call us and we can help you with the decisions you will need to make.
A Plaintiff is the party of the lawsuit who makes a claim or claims that another party is not doing what they need to be doing. The Plaintiff files a complaint or other pleading to being the lawsuit
A Defendant is the party of a lawsuit who defends or argues that the complaint is wrong.
Filing a Complaint or other type of Pleading starts a lawsuit. A Complaint lays out all the details of why a Plaintiff feels that the defendant is in the wrong.
A Defendant must give an answer to the complaint stating why the complaint is incorrect or wrong. The answer can also have “Affirmative Defenses” that says that the Plaintiff’s complaint is correct by the defendant acted properly
Motions are made by both parties asking the Court to do something or to make a preliminary decision in a lawsuit.
This is a complaint made by the Defendant against the Plaintiff and becomes part of the lawsuit. The Plaintiff must then give answers to the counterclaim.
If a party does not do something in the time required by the rules of Court, a judge can grant a default judgment that limits how the other party can argue their case. It is important to both parties to do everything timely.
Discovery is a time that both sides can ask questions or for documents and things to get everything out in the open. Both sides are required to give most everything requested and to be completely honest. Your attorney will be responsible for putting responses together. Although for most people these are new experiences and my cause anxiety, your attorney will prepare you for the parts that require your participation.
Admissions are statements that one party makes that requires the other party to agree or deny if the statement is true. This potentially nears the lawsuit’s issues to only the important items in dispute.
Interrogatories are a list of written questions by one party that the other party is required to answer.
Parties are able to ask for relevant documents and other things that are at issue in a lawsuit. The asking party has a great deal of latitude in the things they ask for. The other party is required to give them what they ask.
Depositions are what we see in the movies. Lawyers on one side of the table asking questions of the other party. This happens in most lawsuits.
If you are one of the few that see the inside of a court room, your attorney will prepare you for the experience and will help you feel at ease. The following are a list of terms and concepts that you will encounter as you prepare for and participate in a trial.
Trials can have a jury or can be only heard by a judge (bench trial). This depends on the type of court or can be a legal tactic, decided by your attorney.
Objections are made by an attorney to ensure that the other party is keeping to the rules of the court.
Evidence is the testimony given by witnesses or documents or other things presented to the Court during a trial. This is what a jury or judge “weighs” to determine who wins. There are numerous rules that governs the way evidence is presented to ensure that everything is fair.
This is the level that a case must be proven to convince a jury or judge that a party needs to win. “Beyond a reasonable doubt,” “clear and convincing,” and “a preponderance” are all standards of proof.
This is a person who will give testimony in a case by answering the questions of the attorneys. Direct Examination is when a witness give testimony for the party that calls them to the stand. Cross Examination, or just “Cross” occurs when the opposing attorney asks the witness questions.
These are the guidelines that the Court uses to keep things fair and just for both parties. Many of theses rules, on first look may seem strange, but they do work well to help the court before, during and after trial.
The outcome of a trial or the end of a lawsuit may not necessarily be the end.
A judgment the final outcome of most lawsuits and is the Court’s determination of the issues after weighing the evidence presented.
A party can move for a new trial if and only if something went wrong in the first trial. This is rare.
A appeal of a judgment can happen if issues of law were wrongly decided in the trial. A appeal is made to the next higher court.
Settlements can happen any time in the lawsuit. This is the only time that the decision to how a lawsuit is handled is in the hands of the parties.
Arbitration is typically binding, which means you are bound to the decision of the Arbitrator (the judge in the arbitration process). The process is a much less formal than court and is a good option to resolve lawsuits.
In Mediation, parties at not typically bound by a decision but work toward crafting a settlement. A mediator is present to help, and sometimes referee, parties as they work toward resolving their issues. A great alternative of trial for many lawsuits.
Who makes the decisions and how to work with a attorney
Your Attorney runs the lawsuit and decides all the of tactical, timing, and legal issue that must be decided as the case moves forward. Attorneys cannot decide on settlement offers, a Client does. In addition, Your Attorney is bound by rules that may not always make sense to Clients. Some of your Attorneys decisions may seem strange to you. If you have a concern or question, Ask your Attorney.
After you hire your attorney, it is your responsibility to assist and cooperate completely with your attorney. As the Client, you will make the decisions concerning settlement offers and other overarching issues. Your Attorney will consult you about legal decisions. It is important that a Client trust and be open and honest with his or her Attorney. Some Clients sometimes report that it feels like they are backseat drivers in a lawsuit. It is important that if you have questions or concerns to ask your Attorney.
