1. What is civil
litigation?
2. Where can I file my complaint?
3. How do I serve the complaint?
4. How long do I have to file a complaint
against someone?
5. What if a default judgment is entered
against me?
6. What is a counterclaim?
7. What is a cross-claim?
8. What is a third-party claim?
9. Do I automatically receive a trial
by jury?
10. What kind of damages can I seek?
11. What if I signed a contract that
provides for mediation and/or arbitration?
12. What is a Motion to Dismiss?
13. What is discovery?
14. What is summary judgment?
15. What are my options if I lose
at trial?
What is civil litigation?
Civil litigation refers to the legal process whereby a party (usually an individual
or a business) known as a "Plaintiff" submits a claim (generally in the form
of a Complaint) for money damages and/or other equitable relief against another
party, known as the "Defendant." Civil litigation proceedings are distinguished
from criminal proceedings because in civil litigation the issues between the
parties pertain to private legal disputes that generally focus on alleged
monetary damages and/or equitable claims.
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Where can I file my complaint?
A number of factors determine where you can file your Complaint. The first
issue that a Plaintiff must decide is whether to file their Complaint in state
or federal court. To sue in federal court, parties must meet certain requirements
revolving around the amount in controversy between the parties and the location
of the parties. Once it has been determined whether or not you should sue
in state or federal court, a Plaintiff next must determine what is the proper
"venue" in which to file the Complaint. Venue is largely determined by the
location of the parties and/or the location of where the events that give
rise to the Complaint took place.
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How do I serve the complaint?
How a Plaintiff serves the Complaint is largely based upon the particular
set of rules that govern the "jurisdiction" in which the Complaint was filed.
Some jurisdictions allow for the service of a Complaint via a process server
or other adult individual who does not have an interest in the outcome of
the civil litigation. Other jurisdictions require that the Complaint be served
by a Sheriff or other governmental official.
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How long do I have to file a complaint
against someone?
One of the biggest issues facing a Plaintiff is how long they have to file
a Complaint. Oftentimes, Plaintiffs fail to file the Complaint in a timely
manner, which ultimately results in the dismissal of a Plaintiff's Complaint.
Every cause of action has a "statute of limitations" attached to it. The statute
of limitations, which can range from one year to several years, determines
how long a Plaintiff has before they can initiate civil litigation against
a Defendant.
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What if a default judgment is entered
against me?
If you are listed as a Defendant in a civil action and you fail to respond
to the Complaint in a timely manner (which is determined by the court rules
that govern the proceedings in the jurisdiction where the Complaint was filed)
and a default judgment is entered against you, you will need to move quickly
upon learning about the default judgment to file a "Motion to Vacate Default
Judgment." To succeed on a Motion to Vacate Default Judgment, you will have
to establish a number of factors, namely that there is a good reason that
you did not respond to the Complaint after it was filed and that you have
a "meritorious" defense to the claims asserted against you in the Complaint.
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What is a counterclaim?
If you are a Defendant in a lawsuit and you have a claim against the Plaintiff,
you can file what is known as a "counterclaim" to the Plaintiff's claim. A
counterclaim is in effect a lawsuit within a lawsuit.
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What is a cross-claim?
If there is more than one Defendant named in a Complaint, then any Defendant
that has a claim against any one of the other named Defendants can file a
cross-claim against the other Defendant.
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What is a third-party claim?
If a Defendant in a lawsuit has a claim against another party that is not
currently a defendant in the lawsuit, then the Defendant can bring that non-party
into the lawsuit by filing a third-party claim against the non-party.
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Do I automatically receive a trial
by jury?
No. A trial by jury must be requested. If a trial by jury is not requested,
then your case will be decided by a Judge who will decide both issues of law
and fact in your case.
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What kind of damages can I seek?
The type of damages that a party can seek in civil litigation depends on a
number of factors, namely whether a statute provides for a specific type of
damages in your case (i.e., treble and/or punitive damages) or whether your
contract (assuming one exists) provides for you to recover attorneys fees
and costs. Your attorney will need to analyze your case carefully to determine
the exact nature and amount of damages that you can seek in your case.
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What if I signed a contract that
provides for mediation and/or arbitration?
Many contracts contain what is known as "Alternative Dispute Resolution" clauses.
These clauses require the parties to submit to mediation and/or arbitration
prior to going to court. Mediation is a non-binding process whereby the parties
appear before a mediator to try to resolve their dispute without going to
court. Arbitration, on the other hand, can be either binding or non-binding.
If the arbitration is binding, then it allows an arbitrator to determine the
outcome of your case. Your attorney will have to analyze the contract that
you signed to determine whether you must participate in mediation and/or arbitration
prior to filing a Complaint in court.
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What is a Motion to Dismiss?
After a Complaint is filed a Defendant can move to dismiss the Complaint on
a number of grounds if the Complaint is legally deficient in some way. Your
attorney will analyze the Complaint to determine whether it is susceptible
to be thrown out of court by a Motion to Dismiss.
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What is discovery?
After a Complaint is filed the parties are given a period of time, usually
several months, in which to obtain facts and information, which they need
to support the positions in the civil litigation. Discovery is a very important
step in civil litigation and your attorney will need to make sure that they
obtain all of the necessary and relevant information which is needed to establish
your claim or defense in the civil litigation.
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What is summary judgment?
After the discovery period, the parties can submit what is known as a summary
judgment motion. A summary judgment motion essentially asks the court to dismiss
a Complaint because there are no "genuine issues of fact in dispute" between
the parties. To win a summary judgment motion, your lawyer must establish
either that there is no real dispute between the parties that supports the
claim (if you are seeking summary judgment) or that there are material facts
in dispute and, thus, the case should proceed to trial (if you are defending
against a summary judgment motion).
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What are my options if I lose at
trial?
If you lose at trial you can file a Motion for Reconsideration with the Court.
If the Judge that presided over your trial denies your Motion for Reconsideration,
you can then appeal your case to an Appellate Court. There are strict legal
requirements and time constraints in appealing your case, so your lawyer must
make sure that your request for an appeal is properly filed in a timely manner.
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