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Chapter 9: Steps in a Civil Case

Party A has been injured by the wrongful conduct of Party B. Party A wants to file a lawsuit against Party B. How does Party A do this?  And what happens with the civil case thereafter?  Here we will focus on how a civil case between Party A (a plaintiff) and Party B (a defendant) would progress in the US district courts.  Civil cases in the district courts are governed by the Federal Rules of Civil Procedure (FRCP), which went through significant amendments in 2007.  Nearly all states have similar rules in their state court systems.  According to the FRCP, the parties and court should administer and construe the FRCP “to secure the just, speedy, and inexpensive determination” of a civil case.[1]

In analyzing the steps of a civil case, we will assume that both parties are represented by attorneys.  Therefore, when we refer to a party, we will not also mention its attorney because we are assuming that a party is acting through its attorney.  The main steps in a civil case in the district courts are pleadings, motions, scheduling conference and order, discovery, pretrial conference and order, trial, and appeal. 

9.1 Pleadings

Pleadings are documents containing factual allegations that parties file with the court and serve on the other parties.  The principal pleadings are the complaint, answer, and counterclaim, and crossclaim.[2]

A plaintiff commences a civil case by filing a complaint with the court.  A complaint is a “short and plain statement” of a plaintiff’s claims with supporting facts showing that the plaintiff is entitled to judgment against the defendant.  Each of the plaintiff’s allegations must be simple, concise, and direct.  The court does not require any technical form and there are no magic words that a plaintiff must use; in fact, a court will construe a complaint (and the other pleadings) “so as to do justice.”  A plaintiff must state its allegations in numbered paragraphs, each of which should be limited to a single set of circumstances. 

If a plaintiff files a case as a class action (see chapter 8 at 8.1), the court must make a decision to certify the class before the suit is permitted to move forward.[3] A class action is required to have four specific characteristics: (1) numerosity, a class large enough that it makes individual lawsuits impractical; (2) commonality, or one or more factual or legal claims common to all members of the class and predominating over individual issues; (3) typicality of the claims or defenses raised as representative of those for the entire class of plaintiffs or defendants; and (4) adequacy, the ability of the parties bringing suit as representatives of the class to adequately represent and protect the interests of other class members.  If the court certifies the class, the persons or organizations (i.e., other potential plaintiffs) that would fall within the class are generally given notice and a period of time to opt out, so as to permit them to pursue their own cases individually.  Those who do not opt out are included in the class and are subject to the court’s judgment (or a settlement approved by the court) that arises out of the litigation. 

A plaintiff serves the complaint with a summons on the defendant.[4] A summons is a notice of the lawsuit; it requires the defendant to answer the complaint.  The plaintiff typically hires a private process server to serve the complaint and summons on a defendant who resides in the state.  Depending on the state, service may be made either on the in-state defendant personally or on another adult person in the defendant’s household.  Service on a business organization is made on its registered agent located in the state.  Service of the summons on an in-state defendant gives the court personal jurisdiction over the defendant. ( We discussed a type of jurisdiction—subject matter jurisdiction—in chapter 6 at 6.1; you will recall that subject matter jurisdiction is a restriction on the types of cases that a court can hear and decide.)  Personal jurisdiction is another type of jurisdiction; it is the power of a court over a particular defendant.  A court must have both personal and subject matter jurisdiction to hear the case. 

But what about a defendant who resides outside of the state?  How does a plaintiff serve an out-of-state defendant?  The answer is by the long-arm statute that exists in almost every state.[5] Under a state long-arm statute a court may exercise personal jurisdiction over a defendant if the defendant transacted business or committed a wrong within the forum state (e.g., causing an automobile accident or selling a defective product in the forum state).  State long-arm statutes are intended to be very broad, extending personal jurisdiction to its constitutional limits.  This means that a defendant must have “minimum contacts” with the forum state such that summoning a defendant into court does not offend “traditional notions of fair play and substantial justice. ”[6] In today’s high-tech world, a business that markets to customers and takes orders from an interactive website is probably transacting business in every state and therefore can be sued in any state. 

A defendant must file and serve an answer within 20 days after being served with a complaint and summons.  In the answer a defendant admits or denies each of the plaintiff’s claims in the complaint.  A defendant must “fairly respond” to each of plaintiff’s allegations.  Therefore, if a defendant is not able to admit or deny a particular allegation, it may plead lack of knowledge or information sufficient to form a belief about the truth of the allegation.  In addition, when responding to a plaintiff’s claims, a defendant must “state in short and plain terms its defenses to each claim asserted against it.”  A defendant must state its allegations and denials in numbered paragraphs, each of which should be limited to a single set of circumstances.  Normally a defendant matches its numbered paragraphs to those of the plaintiff. 

A defendant needs to be careful when preparing its answer because there are certain defenses that the law considers affirmative defenses.  A defendant must include any applicable affirmative defenses with its answer; otherwise, the court will deem them waived.  One of the more commonly-known affirmative defenses is the statute of limitations, which we discussed briefly in chapter 4 at 4.1.  You will recall that it is a statute that creates a time limit for bringing a case.  If a defendant does not raise the statute of limitations in its initial pleading, the court will deem the defense waived. 

A defendant with a claim against a plaintiff may file a counterclaim with its answer.  A counterclaim (sometimes referred to as a “countersuit”) is a claim in opposition to the plaintiff’s claim (or a “set-off” to the plaintiff’s claim).  A counterclaim typically relates to the same transaction or occurrence as the complaint, although that is not required.  If a defendant files a counterclaim, the plaintiff must file an answer to it.  In answering a complaint, a defendant might also file a crossclaim (asserting claims against a co-defendant) or a third party complaint (bringing in an outside party who was not named as a defendant in the original complaint. 

9.2 Motions

A motion is a request for a court order.  A party making a motion must state with particularity the grounds for seeking the order and the relief sought.  In addition, a motion must be in writing unless made during a hearing or trial.  A party may make a motion anytime, unless specifically prohibited by the court.[7]

Some motions may occur early in a civil case, even during the pleadings.  For example, a defendant may assert certain defenses by motion instead of including them in its answer.  There are some defenses that a defendant must either assert by motion prior to filing an answer or include in its answer—otherwise the court will deem them waived.  One such defense is lack of personal jurisdiction.  Therefore, if a defendant does not believe that it has transacted business or caused a wrong in the forum state, it may prefer to file a motion to dismiss a complaint for lack of personal jurisdiction, rather than filing an answer.[8] If the court rules that it does not have personal jurisdiction over the defendant, it will dismiss the case.  If, however, the court rules that it does have personal jurisdiction, it will order the defendant to file an answer to the complaint.  In addition, instead of including any applicable affirmative defenses with an answer, some parties prefer to assert them in a motion to dismiss for failure to state a claim upon which relief can be granted—commonly called a “12(b)(6) motion,” which many courts allow for asserting affirmative defenses.[9]

After the pleadings have closed, a party may file a motion for judgment on the pleadings.[10] In this motion, a party requests that the court determine whether it is entitled to judgment prior to trial.  The court will rule based solely on the pleadings and will construe the pleadings in a light most favorable to the opponent of the motion (i.e., the nonmoving party).  The court will grant the motion only if there are no genuine issues regarding the material facts of the case.  This means that the parties do not disagree about the significant facts in the case; the only disagreement is regarding the application of the law to the facts.  If a party presents matters outside the pleadings (such as sworn declarations called “affidavits”), the court will treat the motion as a motion for summary judgment and give the other parties a reasonable opportunity to present pertinent material in response.[11] The standard for a motion for summary judgment is substantially similar to a motion for judgment on the pleadings. ( That is, a court will grant the motion only if there are no genuine issues regarding the material facts of the case.)  A motion for summary judgment, however, is more typically brought after discovery has closed (see 9.4). 

9.3 Scheduling Conference and Order

Courts differ in their handling of scheduling conferences and orders; but the general rule is that a court will enter a scheduling order “as soon as practicable.”  After the pleadings have closed, the court will have a scheduling conference with the parties.  The conference is usually in person, but may also be by telephone.  Prior to the conference, the parties normally confer to discuss pretrial management issues, including the possibility of settlement and the form of a proposed scheduling order.  After the conference, the court will enter a scheduling order that guides the remainder of the case, including the extent and timing of discovery and the dates of the pretrial conference and trial.[12]

9.4 Discovery

In the United States, we do not have “trial by ambush.”  Parties do not file and serve pleadings and then go immediately to trial.  Instead, we have discovery rules that allow a party to “take discovery,” or learn about the other party’s case well prior to trial and to prevent surprise.  The discovery rules generally require mutual disclosure of all “nonprivileged” testimony, documents, and other evidence that is relevant to a party’s claims or defenses. “ Nonprivileged” means not subject to the attorney-client privilege (which we learned about in chapter 8 at 8.3) or the work product doctrine (which prevents the disclosure of documents prepared in anticipation of litigation and that we will discuss briefly in chapter 10 at 10.5).  By using various discovery tools, a party obtains facts and information from the other party and witnesses to prepare for trial.  The main discovery tools are depositions, interrogatories, requests to produce documents, and requests for admissions.[13]

Depositions are oral questions to the other party or a nonparty witness—who is referred to as the deponent. ( Depositions may also be taken by written questions, but this is not a commonly used discovery tool.)  In a deposition, the deponent answers questions from the party who “noticed” the deposition.  The deponent gives the testimony under oath and the questioning proceeds much as it would at trial.  An “officer” (usually a private stenographer, but sometimes a court reporter) records the testimony for the parties’ future use in discovery or at trial.  Depositions allow the parties to learn or confirm facts and to “lock-in” a witness’s testimony for trial, because a witness cannot give testimony at trial that contradicts his deposition testimony.  Interrogatories are written questions to the other party.  They are not available for questioning a nonparty witness.  After being served with interrogatories, a party must answer (or object to) each interrogatory separately and fully in writing under oath.  Requests to produce documents are written requests to the other party to produce documents, including electronically stored information, and tangible things.  As with the questions asked in depositions and interrogatories, the documents sought must be relevant to a party’s claims or defenses.  Documents produced may become trial exhibits.  Requests for admissions are written requests to the other party to admit the truth of facts, the application of law to fact, opinions, or the genuineness of any described documents.  These requests are best used to narrow the factual issues for trial.  After discovery is completed, a party may file a motion for summary judgment, which we discussed previously at 9.2. 

9.5 Pretrial Conference and Order

As with scheduling conferences and orders, courts differ in their handling of pretrial conferences and orders; but generally, after discovery is completed, courts will hold a pretrial conference to formulate a trial plan, including a plan regarding the admission of evidence (e.g., testimony and exhibits).  The conference is held as close to the start of trial as is reasonable, and must be attended by at least one attorney who will conduct the trial for each party.  Prior to the conference, the parties meet and confer to premark and exchange all trial exhibits and to discuss the contents of a proposed pretrial order, including the names of all witnesses a party intends to call to testify at trial.  After the conference, the court will enter a pretrial order that recites the action taken at the conference and controls the course of the trial.  The court will modify the pretrial order “only to prevent manifest injustice. ”[14]

9.6 Trial

Most of the parties’ energy, money, and time are spent during the previous steps.  But the trial is where the action happens—after all, the trial is what we see on television shows! ( No one wants to see—or would watch—a television show about pleadings, discovery, and conferences with the court.)  A trial consists of jury selection, opening statement, plaintiff’s case presentation, defendant’s case presentation, plaintiff’s rebuttal case, closing argument, jury instructions, jury deliberations, verdict, and judgment.[15]

Jury selection is the process of choosing a group of persons to decide factual issues. ( We are assuming that either party has elected properly to have a jury trial.)  States and courts differ on how potential jurors are called for jury duty.  One way is through the motor vehicle records.  In any event, on any given trial day, the court forms jury “pools” to be available for trials that occur that day.  The potential jurors are brought to the gallery of the courtroom and are called randomly one at a time to fill the jury seats.  Juries may differ in the number of jurors that hear a case depending on the state, courts rules, or the type of case.  But juries of either six or twelve jurors are common.  Each party, with the judge’s permission, is allowed to “strike” (i.e., dismiss) potential jurors for reasons such as bias; these are called challenges for cause.  Each party also is allowed to strike potential jurors for any reason or no reason at all; these are called preemptory challenges and are generally limited to a certain number per party.  Courts have ruled, however, that preemptory challenges may not be used to dismiss potential jurors because of their race or sex. 

After the jury is selected, each party has the opportunity to give an opening statement, which is a preview for the judge and jury of “what the evidence will show.”  Strictly speaking, the opening statement is not a time for arguing a case, although attorneys differ on this point or believe that the distinction between a statement and an argument is a grey area.  Also, opening statements vary in length and style.  In addition, some courts and judges restrict attorneys from standing anywhere but behind a lectern; but other courts and judges are more lax and allow attorneys to walk around the courtroom.  When giving opening statements, the plaintiff goes first, then the defendant.  A defendant often mentions the burden of proof (see chapter 4 at 4.2) that a plaintiff must meet to prove its case.  Either party may waive an opening statement if its wishes; and occasionally a party will do so for tactical reasons.  Both parties typically waive their opening statements in bench trials because opening statements’ best use is for juries, not judges. 

When the defendant finishes its opening statement, the judge will tell the plaintiff to “call” its first witness.  Now begins the plaintiff’s case presentation.  A plaintiff presents its case to the court by submitting evidence that is relevant to its claims.  A plaintiff submits evidence primarily in the form of testimony and documents.  The parties may agree that documents are automatically admitted into evidence; otherwise, a plaintiff may submit documents through witnesses who either prepared the documents or are the “custodian” of the documents.  The documents admitted into evidence are called “exhibits.” 

For each witness that a plaintiff calls to testify, questioning is generally conducted in the following order.  First, the party calling the witness conducts direct examination, asking the questions for which the witness was called to testify.  Next, the opposing party or parties conduct a cross-examination, which is limited in scope to the subject matter of the direct examination and to issues affecting the credibility of the witness or their testimony.[16] If the cross-examination results in answers that the party calling the witness believes require clarification or further exploration, that party may conduct a re-direct as to those answers, after which the opposing parties may again cross-examine, or re-cross, the witness.  The court may, at its discretion, ask questions of a witness or even call witnesses not called by any party to the litigation, if it determines that the testimony is required to fully and fairly adjudicate the case.[17] As a general rule, a plaintiff is not permitted to ask leading questions during direct examination, such as, “Isn’t it true that . . . .”  During cross examination, however, a defendant may ask leading questions of the witness.  After the plaintiff has called all of its witnesses and submitted all of its other evidence, the plaintiff will “rest” its case. 

If a defendant does not believe that a plaintiff has met its burden of proof, the defendant may file a motion for directed verdict (which is often an oral motion).  In a motion for directed verdict, a defendant requests that the court rule that the plaintiff has failed to prove a prima facie case and dismiss the case without sending it to the jury.  The court will view the evidence in a light most favorable to the plaintiff, the nonmoving party.  If the court agrees with the defendant, it will dismiss the case.  If not, the trial continues, and the defendant must present its case. 

Defendant’s case presentation is similar in form and practice to the plaintiff’s, just in reverse.  The judge will tell the defendant to “call” its first witness.  As with the plaintiff, a defendant presents its case to the court by submitting evidence that is relevant to its defenses (and its claims if the defendant filed any counterclaims).  But here, the defendant conducts the direct examination of each witness, and the plaintiff will have an opportunity to conduct a cross examination.  After the defendant has called all of its witnesses and submitted all of its other evidence, the defendant will “rest” its case. 

Sometimes a plaintiff may want to introduce additional evidence to rebut a defendant’s defenses (or any counterclaims).  This is called a plaintiff’s rebuttal case; and it is usually very short and limited in scope.  Judges do not allow a plaintiff simply to repeat or rehash its initial case presentation. 

Closing argument is where each party summarizes and draws inferences from the facts, links the facts to the law, and argues to the jury why it should grant a verdict in such party’s favor.  A party may refer to testimony, documents, or any other evidence that was admitted.  As with the opening statement, a plaintiff goes first, then the defendant.  Here, however, a plaintiff may also be permitted a short rebuttal argument. 

The next step is giving the jury instructions.  A jury is the fact-finder, but its needs to know what the law is so that it may apply the law to the facts.  Jury instructions are summaries of the law that a judge reads and then gives to the jury to aid in deliberations.  Giving the jury instructions is sometimes called “charging the jury.” 

After being charged, a court official will take the jury to a conference room to consider the case; this is called jury deliberations.  The jury will debate, discuss, and mull over the testimony, exhibits, and jury instructions until it reaches a verdict.  Verdict derives from the Latin veredictum, which means “to say the truth.”  Some states and courts require unanimous verdicts; others require only majority verdicts.  If the jury is unable to reach a verdict after a period of time, the judge may reluctantly declare a “hung jury.”  In this instance, the parties will need to retry the case at a later date.  Following a verdict, the judge will entertain any motions challenging the verdict—such as a motion for a new trial or a motion for judgment notwithstanding the verdict (commonly referred to as a “JNOV”).  Judges rarely grant these motions because doing so results in the overturn of jury verdicts.  Subsequent to any post-trial motions (assuming that the judge denies them), the judge will enter the court’s judgment on the verdict.  The trial is now finished. 

9.7 Appeal

The losing party in trial may appeal the judgment.  But the party does not get a “re-do”; that is, it does not get to re-try the case on appeal. ( The exception is a “de novo” appeal, which we discussed in chapter 7 at 7.1.)  What happens if a party forgot to call a witness or submit a document into evidence?  The answer is “too bad”—generally, the trial record is frozen at the close of the trial and the party will be precluded from introducing the evidence on appeal.  Moreover, the appellate court will review the trial record only for prejudicial legal error, not factual error.  This means that the appellate court will decide whether the trial judge (who decided the legal issues) made any erroneous decisions that affected the outcome of the jury verdict or court judgment.  For example, did the trial judge err in allowing or excluding evidence, giving improper jury instructions, or deciding a motion to dismiss or for summary judgment?  An appellate court may make one of three rulings regarding the trial court’s judgment—it may affirm, reverse, or reverse and remand for a new trial. 

9.8 Alternative Dispute Resolution

Alternative Dispute Resolution (ADR) is the generic term for methods for resolving parties’ disputes other than by trial of a lawsuit.  Three of the more common methods of ADR are negotiation, mediation, and arbitration. 

Negotiation is a method in which parties attempt to resolve their disputes without the help of neutral third party.  Negotiation is usually informal; but negotiations may be conducted through attorneys representing the parties.  Also, negotiation is voluntary and may take place at any time in a parties’ dispute, including during or after a lawsuit. ( Some cases actually settle through negotiation after a jury verdict or court judgment.)  In addition, negotiation may be confidential depending on the parties’ wishes. 

Mediation is a method in which parties attempt to resolve their disputes with the help of a neutral third party called a mediator.  The mediator acts as a go-between to assist the parties in negotiating a settlement.  Mediation is usually informal; and sometimes it may be conducted through attorneys representing the parties.  Also, mediation is generally voluntary, although some courts may require parties to mediate their disputes prior to filing or during a lawsuit.  In addition, parties may agree to mediation in contracts (see chapter 18).  Further, as with negotiation, mediation may be confidential, depending on the parties’ desires. 

Arbitration is a method in which parties resolve their disputes by submitting them to a neutral third party—called an arbitrator—who renders a decision.  An arbitration may utilize more than one arbitrator, in which case the arbitrators are called a “panel” (e.g., a panel of three arbitrators).  Parties typically agree to arbitration in contracts.  And arbitration may be “binding” or “non-binding.”  Binding means that the arbitrator’s decision is final; a party may not appeal the decision to a court absent fraud or other rare circumstances.  Non-binding means that either party may disregard the arbitrator’s decision and file a lawsuit. 

Arbitration is more formal than mediation, but not as formal as a trial.  Arbitration hearings, however, proceed similarly to trials.  That is, parties call witnesses and submit documents as exhibits for the arbitrator’s consideration.  Usually, however, the rules of evidence used in trials are not as strictly followed in arbitration hearings.  We will discuss the rules of evidence in chapter 10.  At the close of a hearing, the arbitrator will render a decision (or reserve decision and later send a written decision to the parties).  The prevailing party may then take the arbitrator’s decision and “register” it as court order with the appropriate court.  This is necessary to enforce the arbitrator’s decision because arbitrators are not judges, and therefore have no power to enforce their decisions.  Most arbitration (and some types of mediation) is conducted according to rules established by the American Arbitration Association (which you may have seen referred to, somewhat confusingly, as “AAA”).