Generally, you won’t be involved in many lawsuits in your lifetime, as most disputes end in settlement before a lawsuit is filed, but for the lucky ones, it is important to have an idea of what to expect.
- Dispute. You’ve tried to work out an agreement, but no one can agree – it’s time for the lawsuit.
- Parties. The person who files the lawsuit is the plaintiff and the person who is being sued is the defendant.
- Complaint. The lawsuit starts by the plaintiff filing a complaint with the court that explains why the plaintiff is suing the defendant and asks the court for a remedy. Remedies can include money, return of property, an order preventing someone from doing something or ordering someone to do something.
- Summons. A summons is included with that complaint to be served, by a private process server or sheriff, to the defendant. That summons tells the defendant that the lawsuit has been filed and how long that defendant has to respond. Typically, the summons is delivered or served directly to the defendant or a person authorized by law to receive the summons, but there are some summons that can be mailed to the defendant. A copy of the complaint is included with the summons so that the defendant will know what the lawsuit is all about.
- Response. Once the defendant is served, there are a limited number of days, typically 20, to file a response to the complaint with the court. One of the ways that a defendant can respond to the complaint is by filing an answer. The answer provides responses to each paragraph in the complaint and then explains defenses he or she claims against the plaintiff. This can be a crucial time as many of the available defenses cannot be used if they are not claimed at this point.
- Default. If the defendant decides not to file a response to the complaint by the deadline in the summons, the plaintiff can ask the court to enter a default against the defendant and ultimately, a default judgment awarding the plaintiff the remedy they asked the court for in the complaint. A default can allow the plaintiff to win without proving to the court that they should win. Once a default is entered, the defendant can still ask that the court to remove or set aside the default or default judgment, to hear the facts of the case, but the defendant will typically have to provide the court with reasons why they didn’t file a response originally.
- Discovery. Once the defendant answers, both parties start the discovery portion of the case. There are many tools used, but the most common are:
- Requests for the production of documents, which ask for one side to exchange documents with the requesting side.
- Requests for admissions, which ask for the admission of specific statements.
- Interrogatories, which are written questions asking for written answers.
- Deposition, which is an in-person oral questions for oral answers out-of-court.
- Motions. Both during and after discovery is completed, motions may be filed by either the plaintiff or defendant. Once a motion has been filed, the judge on his or her own or at a hearing, will rule on the motions. Each motion asks the court to do something based on the situation in the lawsuit. A motion could ask a party to provide better copies of documents or as far as ending the lawsuit because of specific facts or law. Each motion will have an order from the judge that the motion is either granted or denied and if the other party has to do anything.
- Mediation. Typically, at this point the court may order the parties to mediation. Mediation is an alternative method of settling a dispute with a neutral third-party mediator. The mediator guides the settlement process, but does not provide legal advice or make a decision about the merits of the case.
- Trial. If the plaintiff and defendant can’t reach a settlement, the lawsuit will generally proceed to trial, usually to be held before a judge, but sometimes by a jury. The trial is set for a specific date, then, if it is a jury trial, jury selection takes place. Once the jury is set, or if the trial is by the judge, the trial starts with a short statement from the plaintiff and the defendant to explain their case. After that, each side presents their evidence and calls witnesses to testify. The plaintiff starts by presenting their case first. Each side not only gets to question their own witnesses, but can also question witnesses called by the other side. After all the testimony and evidence has been presented by the Plaintiff and Defendant, each side makes a closing argument. If the trial is decided by a jury, the judge will give instructions to the jury for the law and the evidence that may be considered, and the jury gets to reach a verdict. In a trial without the jury, the judge considers all the evidence and decides on his or her own. The decision is called a judgment and it is the official decision. The judgement states who won and who lost and includes what remedy the winner will receive.
In some cases, disputes can be resolved in small claims court. Small claims court provide faster, more cost-efficient ways to resolve disputes when there is less than $5,000.00. Lawsuits can become very complicated very quickly, if you find yourself in a dispute or have become a defendant, contact an experienced attorney at E.A. Zebell, PL to help you navigate the process.