A
lawsuit is a civil action brought before a
court of law in which a
plaintiff, a party who claims to have received
damages from a
defendant's actions, seeks a
legal or
equitable
remedy. The
defendant is required to
respond to the plaintiff's complaint. If the plaintiff is
successful,
judgment will be given in
the plaintiff's favor, and a range of
court
orders may be issued to enforce a
right,
award
damages, or impose an
injunction to prevent an act or compel an act. A
declaratory judgment may be
issued to prevent future
legal
disputes.
A lawsuit may involve
dispute
resolution of
private law issues
between
individuals,
business entities or
non-profit organizations. A lawsuit
may also enable the
government to be
treated as if it were a private party in a
civil case, as plaintiff or defendant regarding
an injury, or may provide the government with a civil cause of
action to enforce certain laws.
The conduct of a lawsuit is called
litigation.
Rules of procedure and complications in lawsuits
Rules of criminal or
civil procedure
govern the conduct of a lawsuit in the
common
law adversarial system of
dispute resolution. Procedural rules are additionally
constrained/informed by separate
statutory
laws, case law, and constitutional provisions that define the
rights of the parties to a lawsuit (see especially
due process), though the rules will generally
reflect this legal context on their face. The details of procedure
will differ from jurisdiction to jurisdiction, and often from court
to court within the same jurisdiction. The rules are very important
for litigants to know, however, because they dictate the timing and
progression of the lawsuit—what may be filed and when to get what
result. Failure to comply with the procedural rules can result in
serious limitations in conducting the trial or even dismissal of
the lawsuit.
Direct contempt is a special summary procedure used in federal
courts. It allows federal judges to order litigants to be
incarcerated if they do not obey direct orders as to what they
should file or do in another court. No U.S. Attorney participation
is required. No statutory authority is needed. The aggrieved party
simply requests a federal judge to put the plaintiff in a different
court in jail if he or she doesn't obey a direct order to file a
motion to voluntarily dismiss the action in the other court.
Though the majority of lawsuits are settled and never even get to
trial, they can expand into a very complicated process.
This is
particularly true in federal systems,
where a federal court may be applying state law (e.g., the Erie doctrine in the United States
) or vice versa, or one state applying the law of
another, and where it additionally may not be clear which level (or
location) of court actually has jurisdiction over the claim or personal jurisdiction over the
defendant. Domestic courts are also often called upon to
apply foreign law, or to act upon foreign defendants, over whom
they may not, as a practical matter, even have the ability to
enforce a judgment if the defendant's assets are outside their
reach.
Lawsuits become additionally complicated as more parties become
involved (see
joinder). Within a "single"
lawsuit, there can be any number of claims and defenses (all based
on numerous laws) between any number of plaintiffs or defendants,
who each can bring any number of cross-claims and counterclaims
against each other, and even bring additional parties into the suit
on either side after it progresses. However, courts typically have
some power to separate out claims and parties into separate suits
if it is more efficient to do so, such as if there is not a
sufficient overlap of factual issues between the various
claims.
The progress of a lawsuit
The following is a generalized description of how a lawsuit may
proceed in a common law jurisdiction:
Pleading
A lawsuit begins when a complaint is filed with the court. This
complaint will state that one or more plaintiffs is seeking damages
or
equitable relief from one or more
stated defendants, and will identify the legal and factual bases
for doing so. It is important that the "plaintiff selects the
proper venue with the proper jurisdiction to bring his lawsuit."
The clerk of a court signs a
summons, which
is then
served by the plaintiff
upon the defendant, together with a copy of the complaint. This
service notifies the defendants that they are being sued and that
they have a specific time limit to file a response. By providing a
copy of the complaint, the service also notifies the defendants of
the nature of the claims. Once the defendants are served with the
summons and complaint, they have a time limit to file an
answer identifying their defenses to the plaintiff's
claims, including any challenges to the court's jurisdiction, and
any counterclaims they wish to assert against the plaintiff.
In many courts, a lawsuit begins when one or more plaintiffs
properly serve a summons and complaint upon the defendant(s). In
these states, the plaintiffs need not file the complaint with the
district court clerk to commence the lawsuit. As in other court,
the defendant(s) will have a specific time limit during which they
may file their answer.
If the defendant chooses to file an answer within the time
permitted, he/she must respond to each of the plaintiffs'
allegations by admitting the allegation, denying it, or pleading a
lack of sufficient information to admit or deny the allegation. At
the time he files an answer, the defendant will also raise all
"affirmative" defenses he may have. He may also assert any
counterclaims for damages or equitable relief against the
plaintiff, and in the case of "compulsory counterclaims," must do
so or risk having the counterclaim barred in any subsequent
proceeding. The defendant may also file a "third party complaint"
in which he seeks to join another party or parties in the action if
he believes those parties may be liable for some or all of the
plaintiff's damages. Filing an answer "joins the cause" and moves
the case into the pre-trial phase.
Instead of filing an answer within the time specified in the
summons, the defendant can choose to dispute the validity of the
complaint by filing one or more motions to dismiss. The motion must
be filed within the time period specified in the summons for an
answer. If all such motions are denied by the trial court, and the
defendant loses on all appeals from such denials (if that option is
available), then the defendant
must file an answer.
Usually the
pleadings are drafted by a
lawyer, but in many courts persons can file
papers and represent themselves, which is called appearing
pro se. Many courts have a
pro se clerk to assist people without
lawyers.
Pre-trial
The early stages of the lawsuit may involve initial disclosures of
evidence by each party and
discovery, which is the ordered exchange of
evidence and
statement between the parties based on what
they each expect to argue during the actual trial. Discovery is
meant to eliminate surprises and clarify what the lawsuit is about,
and perhaps to make a party realize they should settle or drop the
claim, all before wasting court resources. At this point the
parties may also engage in pretrial motion filing in order to
exclude or include particular legal or factual issues before trial,
by blocking the other party from presenting a particular witness or
arguing a particular legal theory.
At the close of discovery, the parties may either pick a
jury and then have a
trial by
jury or the case may proceed as a bench trial heard only by the
judge if the parties waive a jury trial or if the right to a jury
trial is not guaranteed for their particular claim (such as those
under
equity in the U.S.) or for any
lawsuits within their jurisdiction.
Alternative Dispute Resolution
Congress requires that all federal courts offer alternative dispute
resolution in all civil actions including bankruptcy. A neutral
third party participates to assist in the resolution of issues in
controversy. Except as defined in section 1654 participation by
litigants is voluntary and not binding. Section 1654 does not allow
arbitration when the participants do not agree, there is a claimed
violation of a constitutional right, or the amount in controversy
is more than $150,000 but mediation can still be used in those
cases. The only exception to this mandate is for pro se litigants.
Although Congress requires the procedure to be offered to all
litigants, many federal courts do not allow pro se litigants to
participate even when they pay the full filing fee.
Revised Judicial Canons
The current code of conduct for United States Judges requires "A
judge should accord to every person who is legally interested in a
proceeding, or the person's lawyer full right to be heard according
to law". On March 17, 2009, a new code, going into effect on July
1, 2009, was announced requiring "A judge should accord to every
person who has a legal interest in a proceeding, and that person’s
lawyer, the full right to be heard according to law." The wording
was changed from a person "or" their lawyer to a person "and" their
lawyer.
Trial and judgment
The lawsuit may then proceed similarly to a criminal trial, with
each side presenting witnesses and submitting evidence, at the
close of which the judge or jury renders their decision. Generally
speaking, the plaintiff has the
burden
of proof in making his claims, which means that it is up to him
to produce enough evidence to persuade the judge or jury that his
claim should succeed. The defendant may have the burden of proof on
other issues, however, such as
affirmative defenses.
There are numerous motions that either party can file throughout
the lawsuit to terminate it "prematurely"—before submission to the
judge or jury for final consideration. These motions attempt to
persuade the judge, through legal argument and sometimes
accompanying evidence, that because there is no reasonable way that
the other party could legally win, there is no sense in continuing
with the trial. Motions for
summary
judgment, for example, can usually be brought before, after, or
during the actual presentation of the case. Motions can also be
brought after the close of a trial to undo a jury verdict that is
contrary to law or against the weight of the evidence, or to
convince the judge that he should change his decision or grant a
new trial.
Also, at any time during this process from the filing of the
complaint to the final judgment, the plaintiff may withdraw his
complaint and end the whole matter, or the defendant may agree to a
settlement, which involves a negotiated award followed also by the
plaintiff withdrawing his complaint and the settlement entered into
the court record.
Appeal
After a
final decision has been made, either party
or both may
appeal from the judgment if they
are unhappy with it (and their jurisdiction grants the ability).
Even the prevailing party may appeal, if, for example, they wanted
a larger award than was granted. The
appellate court (which may be structured as
an intermediate appellate court) and a higher court will then
affirm the judgment, refuse to hear it (which effectively affirms),
reverse, or vacate and remand, which involves sending the lawsuit
back to the lower trial court to address an unresolved issue, or
possibly for a whole new trial. Some lawsuits go up and down the
appeals ladder repeatedly before finally being resolved.
Often individuals fail to realize that facts may not be changed in
an appellate court. If a party does not present a fact at the trial
court level, he or she generally cannot introduce new facts upon
appeal. When the matter has finally been resolved, or the allotted
time to file an appeal has expired, the matter is res judicata. The
plaintiff is precluded from bringing an action resulting from the
same claim again. In addition, other parties who later attempt to
re-litigate a matter already ruled upon from a previous lawsuit
will be estopped from doing so.
Enforcement
When a final judgment is entered, the plaintiff will likely be
barred under
res judicata from
trying to bring the same or similar claim again against that
defendant, or from relitigating any of the issues, even under
different legal claims or theories. This prevents a new trial of
the same case with a different result, or if the plaintiff won, a
repeat trial that merely multiplies the judgment against the
defendant.
If the judgment is for the plaintiff, then the defendant must
comply under penalty of law with the judgment, which will usually
be a monetary award. If the defendant fails to pay, the court has
various powers to seize any of the defendant's assets located
within its jurisdiction, such as:
If all assets are located elsewhere, the plaintiff must file
another suit in the appropriate court to seek enforcement of the
other court's previous judgment. This can be a difficult task when
crossing from a court in one state or nation to another, though
courts tend to grant each other respect when there is not a clear
legal rule to the contrary. A defendant who has no assets in
any jurisdiction is said to be "judgment-proof." The term
is generally a colloquialism to describe an impecunious
defendant.
Indigent judgment-proof defendants are no longer imprisoned;
debtor's prisons have been outlawed by statute, constitutional
amendment, or international human rights treaties in the vast
majority of common law jurisdictions.
History of the term "lawsuit"
During the 18th and 19th centuries, it was common for lawyers to
speak of bringing an "action" at law and a "suit" in
equity. The fusion of common law and equity in
the
Judicature Acts of 1873 and 1875
led to the collapse of that distinction, so it became possible to
speak of a "lawsuit".
In
England and Wales the term
"claim" is far more common; the person initiating proceedings is
called the
claimant.
American terminology is slightly different, in that the term
"claim" refers only to a particular count (or cause of action) in a
lawsuit. Americans also use "claim" to describe a demand filed with
an insurer or administrative agency. If the claim is denied, then
the claimant (or policyholder or applicant) files a lawsuit with
the courts and becomes a plaintiff.
In medieval times, both "action" and "suit" had the approximate
meaning of some kind of legal proceeding, but an action terminated
when a judgment was rendered, while a suit also included the
execution of the judgment.
See also
Notes
- The Lawsuit Survival Guide by Joseph L. Matthews
ISBN 0873377605
- http://www4.law.cornell.edu/uscode/28/651.html
-
http://www4.law.cornell.edu/uscode/uscode28/usc_sec_28_00000654----000-.html
- http://www.dcd.uscourts.gov/LocalRulesSupplement.pdf
- http://www.uscourts.gov/guide/vol2/ch1.cfm
-
http://www.uscourts.gov/library/Current_Code_with_Markup_03-03-08.pdf
-
http://www.uscourts.gov/library/codeOfConduct/Revised_Code_Effective_July-01-09.pdf
- http://www.sued.com/lawsuit-p5.html
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