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At Sawan & Sawan, our lawyers have over 35 years of combined experience presenting, winning and negotiating civil lawsuits. If you have any questions about a civil lawsuit – call today and speak with a lawyer from Sawan & Sawan at 419-900-0955.
Dennis E. Sawan
The Anatomy of a Civil Lawsuit
According to the most recently-available statistics, about 95 percent of pending lawsuits end in a pre-trial settlement. This means that just one in 20 civil cases are resolved in a court of law by a judge or jury. It also means that planning for a pre-trial settlement is a crucial component of any sound legal strategy. In fact, many seasoned lawyers use the bulk of the pre-trial preparation period to build a case that entices their opponents into settling for a favorable sum.
It also appears that personal injury trials favor the plaintiff: According to recent statistics, over 90 percent of cases that go to trial end in victory for the individual who brought the suit. This suggests that pre-trial settlements may be in the best interest of defendants who lack strong evidence to defend themselves against the charges that they face. In straightforward personal injury cases, the outcome of a trial can hinge on the testimony of a single key witness or the examination of certain pertinent records
In order to understand the anatomy of a civil law suit, it’s helpful to understand the distinct parts.
State vs. Federal Civil Lawsuits
Venue is a term that describes the appropriate location for the filing of a suit – and typically refers to which Court House to file in. Jurisdiction, on the other hand, deals with the Court’s authority to hear a particular type of case – for example a Federal Bankruptcy Court would have jurisdiction to hear a Federal Bankruptcy case. The initial step in filing a civil law suit is to determine where the proper location is – and whether State or Federal Court is the appropriate site.
In State and Federal court, there are Rules of Civil Procedure that govern virtually every aspect of a lawsuit to some extent. The federal and state Rules of Civil Procedure are fairly uniform. Local rules in various U.S. District Courts (federal) and individual counties in state courts slightly modify procedures; but for the most part, most suits are comprised of same basic documents and activities.
Court Pleadings in a Civil Suit
A lawsuit starts when one party – either a person or company (The Plaintiff) – prepares and files a document in a Court of appropriate jurisdiction over the parties alleging some kind of wrongdoing by another person or company (The Defendant). A complaint is a document that lays out the specific allegations and damages against a Defendant. After a complaint is filed, the Defendant has a certain period of time in which to respond.
The Civil Complaint
The first document that’s filed is the complaint, a document that provides the basic outline of the factual allegations. Attached to the complaint is often a Summons, which advises the party being sued that they have a limited number of days in which to file a formal answer to the allegations contained in the Complaint.
Answers, Counterclaims and Crossclaims
After being served with the Summons and Complaint, the Defendant is typically allowed 28 days in which to respond to the factual allegations of the Complaint (Defendant’s Answer). The Defendant may also file a Counterclaim against the Plaintiff for damages the Defendant says he or she suffered due to an alleged wrongdoing of the Plaintiff, arising out of the same transaction or occurrence that gave rise to the original suit. The Counterclaim is filed as part of the Defendant’s Answer generally, but not always; so the document is usually entitled: Defendant’s Answer and Counterclaim. When more than one Defendant is being sued by one or more Plaintiffs, and one Defendant files a claim against a co-Defendant, that is called a Cross-Claim. The responses to counterclaims and cross-claims are respectively entitled Reply to Counterclaim, or Reply to Cross-Claim.
Every Court has a specific time in which an answer must be filed after being provided notice of the filing of a complaint. Should a Defendant fail to file this, the rules of Civil Procedure provide for a judgment in favor of the complaining party. This is called a Default Judgment – and it is typically done through a non-adversarial proceeding in which testimony is provided to the Court about the damages sustained. This process is called an Assessment of Damages hearing.
Discovery refers to a time period during a lawsuit that begins after a complaint and answer is files but before a trial is held. This period of time exists to permit all parties to “discover” evidence that may prove beneficial to their position and assist the trier of fact in determining the truth.
A broad array of information is gathered through the use of various tools of the litigation discovery process. At the outset, the parties engage in “written discovery.” That means that the Plaintiff and Defendant will send each other “interrogatories,” “Requests for Production,” and “Requests for Admission.” In addition, subpoenas may be issued.
Questions that must be answered, exchanged by the parties, subject to court oversight if the questions are too burdensome or not within the scope of discovery.
Asks the party to send copies of documents; RFP request access to inspect evidence another party may have in their possession, such as documents, photos, videos; or RFP can request access to the site of an incident if the site is on the Defendant’s property, for example.
Documents asking a party to admit to certain facts or to admit the authenticity of documents or things.
A document signed by an officer of the court (attorneys are officers of the court), requiring a person or company to produce documents and/or appear in person to testify about documents or incidents that pertain to the suit in question. However, the court will not allow for overly burdensome requests or undue expense; and privacy issues sometimes arise, so disputes are often resolved by the court as the litigation proceeds.
Oral Discovery - Depositions
After written discovery, it is common to engage in what are known as Depositions. A deposition is a statement, sworn under oath, that is transcribed by a court reporter into a transcript. Depositions allow the parties to question one another and respective witnesses involved in the case regarding information “reasonably calculated to lead to the discovery of admissible evidence.”
Later in trial, if a person says something that is inconsistent with his testimony during the deposition, he or she can be “impeached,” – in other words, their prior words can be used to show they are not being fully truthful. Due to this, depositions are highly valuable in tying down specific testimony and preparing for a successful trial.
During the litigation, disputes sometimes arise over discovery or other matters and the court must consider a variety of written motions. Other kinds of motions may partially or fully bring an end to a case, such as a “Motion for Summary Judgment”
While many disputes between parties are handled informally through cooperation, sometimes an issue creates an impasse and a judicial ruling is necessary to set appropriate ground rules. Motion pleading is highly strategic – thus, it is wise to discuss a strategy for this type of pleading with a qualified civil litigator.
Often times, a Court will order that – prior to trial – the parties attempt to settle their disputes informally through a process called mediation. In some jurisdictions, mediation is mandatory. In others, it is not. Regardless, it is always a good idea to consider mediation – as it can prove less risky than a trial.
If the parties are unable to come to an agreement through mediation, the parties will proceed to a trial before a judge or jury. It is typically the Plaintiff’s decision as to whether he or she would like to try the matter directly to a judge, or to a jury of his or her peers. There is no one right answer for which option is preferred – as different cases require a different approach.
Contact a Toledo, Ohio Civil Litigation Lawyer Today.
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