A Guide to Civil Litigation: Six Key Steps

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“I’ve been sued. What happens next?”

We hear this question from clients all the time. If you are unfamiliar with the process, it can be intimidating. However, it does not have to be. This guide answers that question and gives you an idea of what to expect during the six major phases of a lawsuit.

The Six Steps in Civil Litigation are:

1. Initial Pleadings

2. Disclosures

3. Discovery

4. Motions

5. Trial

6. Post-Trial Motions and Appeals

Each of these steps are explained in this guide. At the end, we also explain the alternative – Settlement. If you have any questions, you can visit our website at chernoff.law or call us at 480-719-7307.

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Step One: The Initial Pleadings

A lawsuit begins when a party files a document called a complaint with the clerk of the court. The plaintiff must “serve” a summons and the complaint on the defendant to give notice they are being sued. Then, the defendant has a limited amount of time to file a response in writing. Each of these steps has its own intricacies.

The Complaint

The complaint contains a brief explanation of why the lawsuit was filed. It usually is a series of concise paragraphs with the facts that are the basis of the lawsuit, followed by “counts” or “causes of action,” and a description of what remedy the plaintiff is seeking. “Counts” or “causes of action” are the legal claims being made, such as breach of contract or negligence. The complaint should give you specific information about what the plaintiff claims you did that caused harm, including dates and places of the events and a description of the specific harm. Usually the relief sought is money, but sometimes it is an injunction or declaration of what the parties’ rights are in a dispute.

There should not be legal arguments in the complaint. It should be easy to understand for someone without legal expertise, and paragraphs are usually short and numbered. This is designed to make it easy to respond to, but an untrained person may not understand the legal significance of certain allegations. It is usually advisable to consult with an attorney before responding to the complaint to avoid a harmful mistake.

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Summons, Service of Process, and Default

The defendant must be given notice that they are being sued. The plaintiff must serve each defendant with a summons and a copy of the complaint. The summons will state that the court requires each defendant to file a response to the complaint. Usually the deadline to respond is between twenty and ninety days. It typically varies based on where the defendant was served. However, it can be shorter or longer depending on the circumstances.

Sometimes defendants are asked, usually by mail, to waive service or accept service without the formality of a process server. This can be done by signing a document accepting service. Usually the document states that the person accepting service is aware they are being sued, have received the summons and complaint, and that the plaintiff does not have to comply with formal service of process. Waiving service often comes with an advantage in that the defendant who accepts service is given extra time to file a response. Refusing to waive service without a good reason may allow the court to impose the costs of accomplishing service on the defendant. However, defendants should be careful about the waivers they sign, making sure they are limited to service and not waiving defenses.

Formal service is usually done by a licensed process server who must hand-deliver the summons and complaint to each defendant. However, there are exceptions. For example, some courts allow service by mail, and in most circumstances service can be accomplished by leaving the documents with someone at your residence. Defendants should not avoid service, or ignore a summons. If they do, they risk being served without realizing the procedure was valid. When that happens they can miss the deadline to respond and lose the lawsuit automatically, which is called default.

An attorney can help sort through these details. For example, they can assist with determining whether effective service occurred, and the precise date the answer is due.

The Response: Answer or Motion to Dismiss

A response to the lawsuit must be in writing, and can be either an answer or a motion to dismiss. An answer should admit or deny each paragraph and allegation in the complaint. If the defendant lacks knowledge about an allegation, they can say so and deny the allegation until further investigation is complete. If a defendant fails to deny an allegation, the court may treat the allegation as admitted for the purpose of the lawsuit.

If a defendant decides to file a motion to dismiss, the case could be dismissed before they ever file a formal answer. However, for a motion to dismiss to succeed, it must satisfy a specific standard. It must show that even if the allegations are all true, they are not sufficient to establish a claim. Motions to dismiss are difficult to win, but on rare occasion there are cases where they are appropriate and successful.

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Step Two: Disclosures

After a case is served and the defendant responds, many courts require certain disclosures. Court rules may require parties to exchange written disclosure statements. The purpose is to provide all parties with more detailed information before the parties devote significant resources to gathering evidence and going to trial.

Disclosure requirements may vary depending on the court. Some courts have more comprehensive disclosure requirements than others. Disclosure requirements typically focus on four types of information:

• witnesses who have information about the case• the location or production of documents related to the case• computation of damages or explanation of other relief sought• insurance agreements

Courts that have a disclosure requirement usually impose a continuing duty to supplement disclosures as new information is identified. Generally, a party cannot ambush another party at trial with surprise witnesses or documents that should have been disclosed or produced through the discovery process.

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Step Three: Discovery

Discovery is often the longest part of a case. Both parties have the opportunity to learn all the details and gather evidence about the case. The length of the discovery process can vary widely depending on the complexity of your case. A party may obtain discovery of any non-privileged matter that is relevant to any party’s claim or defense. Parties obtain this information by asking each other and third parties for information using various methods allowed under the court’s rules.

Discovery Methods

Request For Admissions: This device states specific facts that a party must admit or deny. It is similar to the way a complaint states facts that a defendant must admit or deny. However, it can be used during the case for the plaintiff to address facts that were not in the complaint, or give a defendant the opportunity to make a plaintiff admit or deny facts. This device is designed to narrow the issues that need to be proven at trial. It may help determine what is actually not in dispute.

Request For Production or Inspection: This device can be used to obtain copies of documents and records, including electronically stored information. This device also can be used to obtain entry onto land that may need to be inspected in a real estate case, or force medical examination of a witness who is claiming injuries or psychological distress.

Interrogatories: These are written questions that the receiving party must answer, usually under oath. Often parties have many questions about the claims, and this device allows them to obtain answers instead of just admissions or denials.

Deposition: This is a verbal examination of a witness. It is similar to examination of a witness at trial. A party’s attorney asks a party or witness questions, and the witness must give testimony under oath, which can be used at trial as evidence. Depositions can occur in writing, but that is very rare.

Subpoena: This is an order from a court for a person to produce documents or appear in a proceeding. It is typically used to get people who are not parties to the lawsuit to appear for a deposition or produce documents in their possession. For example, a subpoena may be used to obtain records from a bank in a business case or from a treating physician in an injury case.

Objections and Privileged Information, Other Limitations

A party receiving discovery can object on various grounds. These include that the discovery seeks information that is not relevant to the case, is overbroad, is unduly burdensome, or is intended to embarrassed or harass the responding party. Non-parties to the case can make similar objections in response to a subpoena. An objection usually allows a party to avoid responding to the objectionable requests, at least temporarily. However, the party making the discovery requests can go to the court and ask for a determination on whether the discovery or objection is appropriate. If the discovery is proper, the court will order responses. If the discovery is not proper, the court will enter an order protecting the party who received them from responding.

Discovery disputes should not be taken lightly. Unreasonable requests and unreasonable objections are both disfavored by the Court. A party who loses a discovery dispute can be sanctioned, including having attorney fees for the dispute charged against them.

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Depositions have some special procedures to avoid reconvening the group of attorneys and witnesses repeatedly after each objection. For depositions, witnesses usually must answer questions even when there is an objection. The court will rule later whether the answer was proper and is admissible at trial.

There is also a special category of objection and treatment for information that is privileged. The law provides protection for communications in certain special relationships. These are called privileged communications. Examples are communications between attorney-client, physician-patient, pastor-penitent, husband and wife. These privileged communications are generally not discoverable, but the privilege can be waived, so a litigant must be cautious to properly protect privileged information. An attorney’s work on a case is called work product, and it receives similar protection. Information may be privileged if it is protected by the attorney-client privilege or the work product doctrine.

There are other, general restrictions on discovery. These include the length and number of depositions, the number of document requests and interrogatories permitted, and the length of time allowed to respond to a discovery request. These restrictions can vary by court and jurisdiction. For that reason, it is important to become familiar with the procedural rules of the particular court.

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Step Four: Motions

A motion is a request for an order from the court. There are many different types of motions, and most can be made at any time during a lawsuit. However, motions are more likely to made at certain times, and some motions are more common than others.

Motions usually must be made in writing, with the exception being motions made during a hearing or trial. A motion must state the specific legal and factual grounds for granting the relief sought. The party opposing a motion will have an opportunity to respond by stating the reasons for denying the motion. The court will then proceed to either grant or deny the motion and enter appropriate orders.

Types of Motions

The most common motions are the Motion to Dismiss, Motion for Summary Judgment, Motion to Compel, and Motion in Limine. Each of these has its own standards, patterns, and impact on the case.

Motions to Dismiss can be filed for a variety of reasons: lack of jurisdiction over the subject of the case, lack of jurisdiction over the parties named in the case, improper venue, insufficient service of process, failure to state a claim, or failure to join a required party. Failure to state a claim is the most common reason. That type of motion tells the court to assume all the facts are true, and that even then the law would not recognize any right to relief. These motions can be very difficult to win, but if a court grants this type of motion, then the case can be dismissed. However, the court often gives at least one opportunity to correct the error before dismissing the case.

Motions for Summary Judgment can be filed early in a case, but usually are filed after at least some discovery is complete. This is because of the standard for winning this type of motion. The moving party must show there are no genuine disputes regarding the material facts of the case. If the parties agree on the facts, then the court can decide the case without the assistance of a jury by simply applying the law to the undisputed facts. These motions are difficult to win because an opposing party can almost always come up with some fact to dispute. For this reason, these motions are often made after discovery has closed and the facts are essentially locked in. Winning this type of motion can win the whole case, or a portion of it if that part of the case involves undisputed facts.

Motions to Compel are the means to address discovery disputes, which are discussed in the previous section. A party must identify the discovery request, objection, and explain why the court should order compliance with or protection from the discovery.

Motions in Limine are used to ask the court to make rulings on the admissibility of evidence before trial. A party may claim that some evidence cannot be presented at trial under the rules of evidence. A court will have to decide on the spot when an objection to evidence is made during trial. Rather than waiting until trial, parties can know the admissibility of evidence in advance by filing this type of motion, which helps plan for trial.

There are many other types of motions, but these are the most common. A skilled litigator knows what motions to file and the right timing. Motions and timing must be adjusted for the nuances of each case.

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Step Five: Trial

If a case is not resolved earlier by motions or a settlement, trial is where the parties present evidence to a judge or jury who will decide the case. The court will establish a trial date, procedures for presenting witnesses and exhibits, and other procedures. Trial is often expensive because it requires extensive preparation to organize presentation of the case and usually multiple days presenting to the decision maker. However, when parties cannot work out their differences, trial is how their disputes ultimately get resolved.

The main steps of a trial are jury selection, jury instructions, opening statements, presentation of evidence, closing arguments, jury deliberation, verdict, and judgment.

Jury Selection

In most civil cases there is a right to trial by jury, but this is not true in all cases. When there is not a right to a jury trial, the case gets tried to a judge. A party can request a jury trial by making a written demand to the court, and must do so in a timely manner or the case will be heard by a judge. Juries are usually between six and twelve jurors, depending on the state, but the parties may stipulate to a smaller jury if they wish.

The jury pool is typically based on voter registration and driver’s license rolls. Each party will be given the chance to question the potential jury members, and to challenge a prospective jury member’s selection for cause, such as bias for or against a party. A party is also allowed to strike a certain number of jurors, which varies by state, for any reason or no reason at all. Once each side exercises challenges and strikes, the final jury is seated for the case.

Jury Instructions

Jurors typically do not know the rules controlling the proceedings, or the law applicable to the case. The court will provide instructions. This happens twice in the case: at the beginning, and again right before the jury goes into deliberations. Parties propose the instructions to the court. If they do not agree on the instructions, the court will decide what instructions to give. Most states have standard sets of instructions as a starting point, which can be customized for each case. The jury instructions are read by the judge to the jury.

Jury instructions can be critical to the outcome of a case, as they guide the jury in its evaluation of evidence and final decision.

Opening Statements

After the jury is selected and sworn in, the parties will be given the opportunity to make an opening statement. This is a statement of the facts each party claims it will establish by evidence at trial. The plaintiff will give an opening statement first, followed by the defendant. Juries will hear evidence after these statements, and have the chance to determine whether the evidence really supports what was claimed or alleged.

Presentation of Evidence

The plaintiff presents evidence first by calling witnesses and introducing documents or exhibits in support of his or her arguments. The party calling a witness will question them first, after which the opposing party will be given the opportunity to cross-examine the witness.

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After the plaintiff has calls their witnesses and presents all evidence, they will rest their case. Then, the defendant will be given the chance to do the same thing. Once the defendant rests their case, the plaintiff can present evidence rebutting any of the defendant’s defenses or counterclaims.

During this stage the parties may object to questions, testimony, or exhibits. Rules control what type of evidence the jury may hear. The judge will determine whether to sustain or overrule objections, and what evidence will actually make it to the jury.

Closing Arguments

Closing arguments summarize the facts and applicable law. Each side has a chance to argue and attempt to convince the jury to grant a verdict in their favor. The plaintiff goes first, then the defendant makes their closing argument. Finally, the plaintiff is given the chance to make a rebuttal argument before final instructions are given to the jury.

Jury Deliberations and Verdict

After presentation of the case, the jury will discuss and debate the evidence until a verdict is reached. The jury will have their own room where they can privately deliberate. Only exhibits that were admitted as evidence by the judge can be taken into the jury room. Most courts require only a majority of jurors to agree on a verdict in civil cases. Unanimous verdicts are required in criminal cases, not civil cases.

Once jurors reach a verdict, they will return to the court to announce it. The court will enter the verdict and discharge the jury. While the major decisions in the case are done, there is still plenty of work to get a final judgment entered and acted upon.

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Step Six: Post-Trial MotionsJudgment, and Appeal

A jury’s verdict is not always the final word on the outcome of a case. A party has the option to file motions that challenge a jury’s verdict before the court enters a final judgment. Typically, there are two types of post-trial motions.

Motion for Judgment Notwithstanding the Verdict: This type of motion asks the court to set aside the jury’s verdict and enter a different decision as the judgment. To accomplish this, it must be shown that no reasonable jury could have reached the verdict rendered. It is a very difficult standard to satisfy, and such motions are rarely granted.

Motion for a New Trial: This is another motion seeking to disregard the verdict. For this type of motion, it must be shown that the jury verdict is not consistent with the evidence. This is also a very difficult motion to win.

If motions are not filed or the judge denies these motions, then the court will turn its attention to entering a formal, written judgment consistent with the verdict. The next step for the court will be to decide whether costs or fees in the case should be included in the judgment.

Judgment, Costs and Fees

The party that wins the case will typically file a motion requesting that the other party be required to pay the costs and fees associated with prosecuting or defending the case. Costs are certain expenses of the case, such as filing fees, service of process charges, and court reporter bills. The winning party usually can recover these expenses, but they are usually small compared to the attorney fees. The availability of attorney fees varies depending on the type of case. Fees may be authorized by statute, or be required to be awarded by terms of the contract if it is a contract dispute. After the parties file motions regarding the costs and fees, and the court will ultimately decide what to award.

After deciding on costs and fees, the court enters judgment. The exact language of a judgment can be a matter of dispute. This is particularly true if there are non-monetary terms of a judgment, such as declaring title to land, entering a permanent injunction, or determining interest on the award. The parties can propose forms of judgment and object. The court will make a final decision on the form of judgment and enter a written judgment into the court record. That will determine the formal rights of the parties at the conclusion of the case.

Appeals

If the losing party is not satisfied with the judgment, they can appeal the decision. However, the appeal is not a chance to completely retry the case. Review by the appellate court will be limited to deciding whether certain types of errors occurred at trial. New evidence cannot be submitted. The court of appeals simply reviews the existing record to determine whether there were errors.

If the trial judge made a mistake of law—such as giving the jury improper instructions or prejudicing the jury by allowing improper evidence to be presented—then the appellate court can reverse the verdict or reverse and remand the case for a new trial. Sometimes there is no error found, or the error is determined to be “harmless.” In those cases, the verdict will be affirmed and stand as entered.

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The Litigation Alternative: SettlementLitigation is a long, complex, and costly process. Parties can shortcut the process at any time if they choose to settle. In fact, they can even avoid a lawsuit entirely if they decide to settle before the lawsuit is filed. A settlement is an agreed resolution of the case between the parties without requiring a court’s ruling. The key is that the parties must reach an agreement, which can be hard to do during an emotionally charged dispute.

If a settlement is reached on all or part of the lawsuit, the party’s attorney must promptly notify the court of the settlement. It is highly recommended that parties document their agreement in writing.

Bringing It All TogetherLitigation is not an easy or simple process. It is long, complicated, and costly. However, it provides a fair forum and detailed process for each party to be heard, present evidence, and get an objective decision. Parties should try to cooperatively resolve their differences. They can attempt to settle at any time, before, during, or even after trial while appeal is pending. When they cannot agree, the court will hear the evidence and decide the case. A capable lawyer can present the evidence effectively, make persuasive arguments, and maximize your chances of success.

Please Note: The information you receive in this guide is not legal advice and is not intended to be legal advice. This law firm provides this material as general information about legal topics. You should consult an attorney for individual advice regarding your own situation because this information may not apply to you or your individual situation. Viewing the information in this document does not create an attorney-client relationship. Do not send confidential information to this firm unless you are an established client. Any information sent to this firm by non-clients will not create an attorney-client relationship and will not necessarily be treated as privileged or confidential until a representation arrangement and attorney-client relationship is formally established by written agreement. Please contact our office to schedule an appointment to speak with one of our attorneys. This firm provides legal services only in the jurisdictions where it has offices and its lawyers are admitted to practice. Please review our lawyer biographies on our website for further information.

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About Chernoff Law FirmChernoff Law Firm handles civil litigation matters throughout Arizona and California, ranging from complex cases to routine collection matters. Our team of litigators has experience in the trenches with every phase of the litigation process.