Lawyers sometimes forget that most people do not know the intricacies of the law, or even what some lawyers would consider “basic” legal vocabulary. Often, attorneys will speak in legal jargon, expecting or assuming that their client has the same level of knowledge they do. Here, we will discuss some of the basics of litigation. Civil litigation is a legal process used to resolve disputes between two parties, normally seeking monetary damages or specific performance, rather than criminal sanctions. Whether a broken contract or broken bone, the courts tend to use the same terminology and same process in these claims.
- Roles of the parties
In a civil case, the person suing the other party is called the “plaintiff.” This is the party who was actually injured and suffered some sort of damages. These damages can be for a specific amount, such as in cases relating to embezzlement or breach of contract, or can be valued based on what the property damaged was worth prior to the damage. Anyone can be a plaintiff, including governmental agencies and companies
The person being sued by the plaintiff is referred to as the “defendant.” This is the person who allegedly caused the damage to plaintiff, and plaintiff seeks to be reimbursed by them. As with a plaintiff, anyone can be a defendant, including governmental agencies and companies.
The inciting event that caused plaintiff’s damages is called the “cause of action.” This is the action that plaintiff alleges defendant had taken that caused the damages. This can include a failure to act, such as not installing the proper safety rail for an entry way, or having a defective step entering a building owned by the defendant.
While most people may know what a judge is, they may not necessarily know the role of the judge in a given case. A judge is a fact-finder. This means that the judge’s job is to determine what evidence is admissible, what arguments are sound and, in many cases, to determine which side’s arguments are convincing enough for judgment in their favor. A party may also request a trial by jury, in which case the jury determines the final verdict, though the judge still plays an important role in deciding on motions and allowing evidence that may be disputed.
- Stages of litigation
The first step in litigation is drafting and filing of documents called “pleadings.” Pleadings refer to the plaintiff’s complaint and the defendant’s responsive answer. The plaintiff’s complaint outlines the parties to the action, the cause of action, and the damages. The details of the complaint are incredibly important, because the defendant has the right to file a motion to dismiss the complaint if the complaint does not adequately notify the defendant of the allegations being brought against them. If a defendant fails to answer the complaint, they run the risk of facing a default judgment.
Once the pleadings are filed, the parties enter something called “discovery.” While you may have heard some of these terms from tv shows or movies, real life is often different from the big screen. Litigation is nowhere near as exciting as shown onscreen. There are no “surprise” pieces of evidence presented at trial for the first time. Each party has the opportunity to analyze every piece of evidence being presented by the other side well in advance of trial. These pieces of evidence can include testimony taken at depositions, contracts between the parties, photographs taken after the incident, or even communications between the parties that occurred years prior to the cause of action. There are heavy consequences for failing to disclose information during the course of discovery, as the parties have a right to almost all of the information related to their claim.
During the course of discovery and prior to trial, the parties often participate in motion work. This step usually involves motions to exclude certain evidence, motions to amend pleadings, and motions to compel discovery when requests are not responded to. Often brought during this time are motions for summary judgment. These motions are seeking judgment for one party based on all the evidence thus far exchanged. This is done to avoid lengthy litigation where the facts of the matter clearly favor one party.
Finally, after discovery is complete, and assuming motions for summary judgment were denied and no settlement was reached, comes trial. This is where each party has the opportunity to bring their evidence and arguments before the court. Once both sides have had their opportunity to present, the judge or jury makes a final determination on the merits of the case. If the judge or jury finds in favor of the plaintiff, the plaintiff may then begin collecting on the judgment. If for the defendant, the plaintiff’s claim is dismissed and they may not bring a claim against the defendant for the same cause of action.
During any of the preceding stages, and even after trial, the parties may enter into a settlement agreement. This settlement agreement becomes effective on both parties once agreed to and signed by their respective attorneys. A common statistic is that roughly 95% of cases settle before trial. That’s very often the case, as neither party wants to risk lengthy and expensive litigation just to be told they lost their case.
- Conclusion
While someone may think that all civil litigation is the same, that is simply not true. There is a myriad of different types of claims that can fall under the litigation umbrella. Breach of contract, fraud, intentional torts, personal injury, and even malpractice may fall under the litigation distinction. It is incredibly important to find the attorney best suited for the type of case you have, and that knows the ins and outs of the legal process. At Scura, Wigfield, Heyer, Stevens & Cammarota LLP, we have a dedicated team with diverse expertise ready to help.
