Posted in Commercial Litigation by

If you have a legal claim or someone has filed a legal claim against you, the process can be very confusing.  Knowing the process, however, can reduce uncertainty, acrimony, and expense and lead to better decisions regarding how to proceed.  This civil litigation primer will discuss the basic steps of a typical lawsuit and what they mean.[1]

The process ordinarily begins with a demand to right a perceived wrong.  Typical civil claims include claims to collect compensation for harms to persons or property (money damages), to require someone to follow through with a promised action (specific performance), or to clarify legal rights and duties (declaratory action).

If the demand cannot be voluntarily settled between the parties or resolved out of court through mediation or arbitration, then a lawsuit is filed.  Claims for $10,000 or less can be filed in small claims court with a greatly simplified and expedited process.  For larger claims, the lawsuit begins by filing a formal complaint with the clerk of the district court.

Two principles govern whether the complaint has been filed in the appropriate court.  The first is jurisdiction—a fancy way of saying that the court has the power to hear the particular case.  Unless the parties have expressly agreed in their contract, a court in Kentucky lacks jurisdiction to hear the dispute of two residents of Utah over a contract signed and to be performed in Utah.  The second principle is venue, which refers to the proper place for a case to be heard.  Of all the courts that have the power to hear the case (jurisdiction), the courts that are proper venues for the litigation are those in places with proper connections to the facts of the litigation.  Often proper venue in Utah includes a court in a county where one of the parties sued resides.

The person or business that files the complaint is called a plaintiff.  The persons or entities sued by the plaintiff are called defendants.  Complaints must be brought within a certain amount of time after the wrong occurred or was discovered.  These time periods are determined by statute and are called statutes of limitations.

Merely filing a complaint is insufficient to proceed with litigation.  The defendants also need formal notice of the complaint.  This is accomplished by means of a document called a summons which has to be formally served on the defendants.  This process is how a court gains its jurisdiction or authority over the defendants, so the formal requirements of service have to be carefully observed.  One common way to ensure proper service on prospective defendants is for an independent person to hand-deliver the summons and complaint.  These individuals are often called process servers.

Once proper service is completed, the defendants have a short amount of time, usually about 21 days, to respond to the complaint in writing—typically with a formal answer admitting or denying the allegations of the complaint and asserting their defenses or with a motion to dismiss for some defect in the complaint or jurisdiction.  Failure to respond timely and in writing can result in the request in the court granting the requests made in the complaint by default.

Once defendants have answered the complaint, Utah’s court rules require the voluntary disclosure of the identities of supporting witnesses as well as documents and other evidence the party intends to use at trial to support its claims or defenses, among other categories of items a party is required to identify. These are known as initial disclosures.

Initial disclosures begin the fact-discovery phase of litigation.  In this phase, the parties interview witnesses and send out subpoenas—formal commands to produce documentation or testimony.  Typical formal types of discovery include written questions to other parties requiring written responses under oath (interrogatories); formal interviews under oath that are taken down word-for-word by a court reporter (depositions); formal requests for documents or other evidence (requests for production); and written requests for the other party to admit or deny asserted facts (requests for admission). In Utah, the number of questions and formal interviews a party can send out depends on the amount of money claimed in the lawsuit (the amount in controversy).  Each case is assigned a discovery tier based on the amount in controversy, which determines how much discovery each party may conduct.

After the deadline for fact discovery runs, the parties must disclose if they intend to call any experts as witnesses.  Experts are people whose education, training, or experience allows them to give professional opinions about the evidence that would be outside the common experience and understanding of the average juror.

After experts are disclosed, the other party may elect to formally interview the expert (an expert deposition) or request a written statement of all the expert’s projected opinions (an expert report).  This concludes the expert discovery portion of the litigation and the case typically proceeds to motions and a pretrial conference with the judge.

Motions are requests for action from the court.  Often, they are used to ask the court what is really in dispute after the evidence has been gathered in discovery.  That way the parties are not wasting everyone’s time presenting evidence on issues that really aren’t in dispute.  If the facts are undisputed, but the legal effect of those facts is, the court can rule on the legal effects and the case ends there (summary judgment).  If facts remain in dispute, the case goes to trial so that an independent fact finder can determine what the facts are.

If the parties have opted for a jury trial, then a jury is seated and hears the evidence and decides what the facts are and what the damages should be.  The judge presides at the trial and makes rulings on how the law applies to the facts, but factual questions are left to the jury.  If the parties have opted for a bench trial, the judge rules on both the law and the facts.

At the conclusion of the trial and any post-trial motions, a dissatisfied party has a brief window to appeal—request that a higher court reconsider some point of claimed error.

Each lawsuit is distinct, and this overview discusses general principles.  Any questions related to a specific case should be directed to your own legal counsel.  Should you have questions about protecting your own interest in litigation or regarding a specific case, I invite you to contact me directly.

[1] Civil litigation refers to actions to enforce private rights as opposed to criminal prosecution of laws designed to protect the public.

Michael Headshot
Michael D. Lichfield
Michael@snjlegal.com
801.365.1016

Share What You Read:Share on FacebookShare on Google+Tweet about this on TwitterShare on LinkedInShare on Reddit

About

This author hasn't yet written their biography.
Still we are proud contributed 15 great entries.