Commentary and analysis of commercial, business and intellectual property (IP) law, sports law, complex civil litigation and occasionally a general legal tip.
Wednesday, April 10, 2013
The basic anatomy of a civil lawsuit.
Civil lawsuits arise in a number of ways, depending on the claim or claims involved. They can be based on a contract, injury, or something else. In any civil suit, there is always a dispute between the parties. Many civil suits begin with an amicable relationship that subsequently deteriorated.
If you have been involved in such a dispute, you probably tried to resolve the matter without resorting to the courts. To many people, resorting to the courts is anathema. As it should be. The legal process should not be used to get someone to do your bidding. It should only be used when you have exhausted all other options.
If a lawsuit is required, the petition or complaint is prepared and filed. This is the first "pleading" in a civil action. It outlines the plaintiff's basic understanding of the facts of the dispute and the legal basis on which the plaintiff is proceeding. A set number of days after the defendant is provided with notice of the suit, the defendant must respond with a motion or answer.
The discovery phase begins after the petition or complaint, and motion or answer. Discovery is where the parties gather evidence to support their case. To do this, attorneys use interrogatories, requests for admission, requests for production of documents, depositions, and combinations of those. In effect, interrogatories request essay answers to specific questions. In effect, requests for admission ask for multiple choice answers (admit or deny) to specific questions. Requests for production ask for documents and other tangible information that the other party has. A deposition is basically testimony outside of a courtroom. A deposition is to a trial as a dress-rehearsal is to a performance of a play or musical. Your deposition testimony needs to match your trial testimony, or you will be called out on it.
Discovery takes a while. Even at its quickest, the process will ordinarily take a few months. If the case proceeds to trial, there will be deadlines for submitting evidence and a list of witnesses you intend to use at trial. It is imperative that you remain in contact with your attorney during this time. If you do not, or if you do not provide your attorney with the information he or she needs, you may not be able to use that evidence or those witnesses at trial.