How To File a Lawsuit

A step-by-step guide to the legal process.

Court proceedings generally begin with the filing of a complaint and the issuance of a summons. The complaint sets forth the grounds for the lawsuit, called the "cause of action." It states the injury or damage you've suffered, the names of the persons you believe are responsible, and the type of remedy you are asking the court to impose. It also makes a statement regarding why this particular court has jurisdiction, the authority to hear the case.

The summons is a legal notice issued by the clerk of the court telling the person or persons you've named as defendants that legal action has been commenced against them. It directs the defendant to file an answer with the court by a date specified. A summons must be formally served, or delivered to the defendant. In most cases, this "service of process" is done in person, perhaps by the sheriff or another law enforcement officer. More often, the summons is served by a professional process server, or some other disinterested party. In some cases, service may be made by sending a copy of the summons and complaint through the mail.

The defendant has a specified period of time in which to respond to the summons and complaint with what's known as an "answer." The answer may be used to deny the plaintiff's charges entirely, or to assert an "affirmative defense" to the plaintiff's claim. An affirmative defense in a personal injury case, for example, might be that you were injured through your own negligence, not the alleged negligence of the defendant.

Another common answer to a complaint is one which contains a motion asking the court to dismiss the charges for failing to state a cause of action. Suppose the complaint states that the plaintiff purchased a ladder from your hardware store, and that the ladder subsequently broke, causing the plaintiff to be injured.

A claim like this would probably be dismissed for failing to state a cause of action, since the plaintiff hasn't alleged that you did anything wrong that would make you responsible for the injuries. However, most courts will allow a plaintiff to amend his complaint to state a cause of action, so any sense of relief you may get as the result of obtaining a motion to dismiss under these circumstances may only be temporary.

Along with the answer, the defendant may also file a counterclaim. A counterclaim may state that, rather than the defendant being liable for damages, in fact the plaintiff took some action which resulted in damages to the defendant. Suppose the original complaint charged the defendant with negligence in operating his motorcycle, which resulted in an accident with the plaintiff's automobile. A counterclaim might state that the plaintiff was actually negligent in the way he drove his car, and that this negligence was in fact the cause of the accident and the losses suffered by the defendant.

A person who receives a summons in a civil lawsuit may choose whether or not to respond to the court. However, failing to respond will most likely result in a default judgment being entered against the defendant.

Once the defendant's answer and any counterclaim is received by the court, a trial date will be set and what's known as "discovery" will begin. Discovery procedures are used to obtain evidence that will strengthen each party's case, and also to prevent either side from being surprised by undisclosed facts or unknown witnesses. (Unlike the way trials are often represented in movies and television programs, "surprise" witnesses don't often appear in real life trials.)

Discovery techniques include depositions, the oral questioning of the parties to the lawsuit as well as witnesses, and interrogatories, which are written questions that must be answered in writing. Depositions and interrogatories are both given under oath, and you could be charged with and convicted of perjury if you give answers that are untruthful.

While depositions and interrogatories are the best known forms of discovery, there are others as well. A "request for admissions" takes place when one side asks the other to admit to some important fact, or to attest to the authenticity of some document to be used as evidence. For example, the plaintiff's attorney may make a request for admission asking the defendant to agree to the fact that a specific document is a contract signed by both parties. If this fact is true, the defendant will admit to it. If it's not, or if there's some doubt on the defendant's part about the document's authenticity, he can deny the admission, or state that he has insufficient facts to support an admission.

A "request for production and inspection" is a form of discovery often used in business disputes. When a request for production and inspection is delivered, the party receiving it is asked to produce any and all books and documents in its possession that are pertinent to the lawsuit, or physical evidence that the party making the request cannot obtain through other means. If the party receiving the request refuses to do so, it must provide its reasons for denying the request. The party making the request can then ask the court to compel the production and inspection of the evidence. However, any request for business documents and other evidence must be fairly specific in stating what exactly is being sought, since otherwise the party making the request could simply go fishing through all of a company's files in search of evidence supporting its case.

Another form of discovery, one which is often used in personal injury cases, is the physical examination of the plaintiff. In cases brought to determine whether or not a person is competent, or to decide the fitness of a parent to have custody, mental and psychological examinations of the parties may also be sought.

Either side in the case may choose to file certain motions with the court. These motions are requests that are made to the court regarding some issue in the case, and asking the court to make a decision. Among the most common types of motions are those that ask the court to allow a plaintiff to amend a complaint, which ask the court to order the opposing party to comply with discovery requests, and which ask the court to dismiss the charges against a particular defendant.

Pretrial conferences may be called in order to allow both parties to discuss the issues in the case. Pretrial conferences are intended to minimize delays in trial proceedings, and in many cases these conferences will lead to an out of court settlement so that a trial will not need to take place at all. However, if a settlement can't be reached before the trial date set by the court, the next step in the litigation process is the trial itself.

Once the case is called to trial, a jury will usually be selected to hear the case, unless the parties have agreed to have the case tried by the judge. We'll say more about juries a little later on.

Each side then gets to make it's opening statement. These statements are summaries of what each party will try to establish during the length of the trial. In some cases, the attorney for the defendant may decide to wait to make his opening statement until later in the proceedings, after the plaintiff has completed presenting his case.

Because the plaintiff has the burden of proof and has to prove its case, the plaintiff gets to go first in presenting his case. That means calling witnesses and presenting evidence in support of the claim made against the defendant. After the plaintiff's attorney finishes questioning a witness (called "direct examination,") the lawyer for the defendant gets the chance to cross-examine the witness, to point up contradictions in the witness' testimony, to show that the witness is unreliable, or to show that the witness has an interest in having the outcome of the case decided in favor of the plaintiff.

After all of the plaintiff's witnesses have been called and all the evidence in support of the plaintiff's case has been presented, the plaintiff "rests his case." At this point, the lawyer for the defendant will ask the court to dismiss the case for lack of proof. If the plaintiff hasn't been able to set out enough evidence to support his claim, a motion to dismiss may be granted. More likely, however, the motion will be denied, and the defendant then gets to present his case. If he's reserved the right to make his opening statement to the jury, this is the time when he'll do so. Otherwise, the defendant begins by calling witnesses and presenting evidence designed to refute the plaintiff's claims.

Just as the defense gets to cross-examine the plaintiff's witnesses, the plaintiff can cross-examine the witnesses testifying on the defendant's behalf. After all of the defense witnesses have been called and the defense rests its case, the plaintiff gets the opportunity to present what's known as "rebuttal evidence." This rebuttal evidence is additional testimony from witnesses or other evidence that explains away some of the defense's case, or which contradicts it outright.

Each side then gets to make a closing statement, which summarizes its arguments and case and asks the court or the jury to provide a favorable judgment. Just as the plaintiff gets the chance to present rebuttal evidence after the defense presents its case, the plaintiff also gets the chance to speak after the defense makes its closing statement, in a final attempt to convince the court to find in the plaintiff's favor.

If a jury trial has been conducted, the jury will then be given instructions by the judge. These instructions include the law that governs the case, the way the jury must apply the law to the facts, and the burden of proof that must be met in order for the plaintiff to win. In most civil cases, the plaintiff must prove its case by a standard known as "a preponderance of the evidence." Basically, this means that the jury must believe that it's more likely than not that the defendant is liable for the damages the plaintiff claims.

The jury is then sent off to a room in the courthouse where it will deliberate until it reaches its decision, or until it becomes clear that the jury is deadlocked and cannot reach a decision. Deadlocked, or "hung' juries don't occur as often in civil cases as they do in criminal trials. Unlike criminal cases, which almost always require the jury to reach a unanimous decision, civil cases can often be decided by a decision of a simple majority of the jurors, or in some cases when two-thirds of them reach agreement.

Once the jury reaches its decision, it returns to the courtroom, where the verdict is announced. At this point, the lawyer for the losing side will almost always ask for what's known as "judgment notwithstanding the verdict." This motion asks the court to disregard the jury verdict and find in favor of the losing side instead. Courts will not grant this motion unless the verdict is clearly outrageous in light of the evidence presented during the trial. In most cases, a final judgment reflecting the jury's decision is entered by the court. At this point, the losing side in the trial must decide whether or not to appeal the trial court ruling.

Generally, an appeal can only be filed when the losing side can make the argument that the court erred in some courtroom procedure or in its interpretation of the law governing the case. The party filing the appeal, called the "appellant" usually can't re-argue the facts of the case to the appeals court. However, in some cases an appeals court can "remand," or return the case to the trial court for further consideration of the facts in light of the appeals court's instructions on how they should be interpreted under the law.

While the steps above provide a general outline of the procedures followed in most civil courts, remember that state court rules and procedures do vary somewhat from place to place. If you are involved in a lawsuit, your attorney can give you more information about the exact procedures that will be followed in the court hearing your case.

You may also be surprised to learn that most trials contain little of the drama associated with the courtroom dramas portrayed in films and plays. In many cases, the lawyers will conduct a lot of business up at the judge's bench, trying to settle procedural issues out of earshot of the jury. And the judge may order the jury out of the courtroom during certain parts of the trial as he attempts to determine whether or not evidence can be admitted for the jury's consideration.

The lawyers won't often have the certainty of a Perry Mason, but then again they don't have the luxury of a script to follow and a director who can yell "Cut" and reshoot the scene when a line is flubbed. Nor will they be likely to wander around the courtroom or approach the witnesses to look them in the eyes and elicit some surprising admission. In most courtrooms, lawyers are required to remain standing at a podium several feet from where the witness sits, and may only approach the witness with the permission of the judge. In general, a lawyer who conducted himself the way most television and film lawyers do would find himself faced with contempt of court charges on a regular basis.

And even after the trial has been completed and while the jury is deliberating, the case may be settled, so the tension and excitement associated with the jury's return to the courtroom may never even be experienced. All in all, real life trials contain little of the electricity most of us are familiar with from their fictional counterparts.