Civil Procedure

A civil action is commenced with the filing of a complaint. The plaintiff must file the complaint with the court and must give a summons to the court and a copy of the complaint to the defendant. The complaint must set forth the claims and the legal bases for them.

Before filing the complaint, the plaintiff must decide where to file it. As a general rule, cases are filed in state, not federal, courts. The question of whether a particular court has authority over a certain matter and certain parties is one of jurisdiction. Federal courts generally have jurisdiction over civil actions in three situations. The most common is when the parties to the suit live in different states and the amount of money in controversy exceeds $50,000. The second instance is when a claim is specifically authorized by federal statute. The third is when a claim is made by or against the federal government or its agents.

The jurisdiction of state courts depends on a number of variables. Plaintiffs filing in state court generally prefer to file in their home state. However, this may be difficult in a case where the defendant lives in another state and the injury occurred outside the plaintiff's home state. A court in the plaintiff's home state can gain jurisdiction over an out-of-state defendant in several ways. For example, if the defendant enters the plaintiff's home state, the plaintiff may serve the defendant there and force the defendant to appear there for trial. Or the plaintiff can show the court that the defendant has some minimal amount of contact with the plaintiff's home state. Or the plaintiff can show that the defendant has property in the plaintiff's home state and the property is the subject matter of the dispute.

In addition to jurisdiction, the plaintiff must also consider venue. Venue is the term describing the particular county or geographical area in which a court with jurisdiction may hear and determine a case. The plaintiff makes a decision on venue after deciding whether to file suit in state or federal court. For example, if a plaintiff decides to file suit in state court, and has settled on a particular state, the plaintiff must decide in which county to file suit. The overriding consideration in determining the best venue in a case is the convenience to the parties.

Once the plaintiff determines where to file the complaint, the plaintiff must prepare pleadings and motions. Pleadings are the plaintiff's initial allegations and the defendant's responses to those allegations. Motions are requests made by the parties for a specific order by the court. Courts usually schedule pretrial conferences to review and rule on pleadings and motions, sort out preliminary issues, and prepare a case for trial.

Before a case can proceed, the court must determine whether the plaintiff has standing to bring the suit. In order to hear the suit the court must find that the plaintiff has some legally protectible, tangible interest in the outcome of the litigation. Other plaintiffs may join the original plaintiff if they seek the same relief concerning the same transaction or event and the complaints involve a common QUESTION OF LAW or fact. This is called JOINDER.

In some cases, joinder may be compulsory. Under Rule 19, a person must be joined if (1) complete relief cannot be accorded to the parties without joining the missing person or (2) the missing person claims an interest in the action, and absence from the suit will impair that person's ability to protect the interest, or absence would subject the parties to multiple or inconsistent obligations regarding the matter of the suit. Both plaintiffs and defendants may be ordered by the court to join a suit.

The court must also determine before trial that the issues in the case are JUSTICIABLE, that is, the case is ready and proper for a judicial determination. Courts do not hear hypothetical, abstract, or political cases. For example, a person may not file a suit against a legislator over the legislator's vote on a matter before the legislature. Nor may a person file a suit against another unless the filing person can demonstrate having been harmed by the other.

If the complaint does not state a claim upon which judicial relief can be granted, the defendant may move for SUMMARY JUDGMENT, which is a request that the court issue a final judgment on the case in favor of the defendant. The plaintiff also may submit a motion for summary judgment, either soon after filing the complaint or after the defendant submits a summary judgment motion. When deciding a motion for summary judgment, the court must consider the pleadings in the light most favorable to the party opposing the motion.

The parties to a lawsuit prepare their case based on information gained through the process of discovery. Discovery consists of a variety of methods including depositions and interrogatories. A deposition is an interview of a party or witness conducted by a lawyer. Usually, this interview is conducted orally with a lawyer for the other side present and able to participate; sometimes, it is conducted using written questions. Information about a party may be secured through written interrogatories or requests to produce documents or other things. These requests may be served only upon a party. A request for production may seek any item within a party's control.

Procedural rules for depositions and other forms of discovery address a number of concerns, including how a deposition is conducted, the permissible scope of a deposition, who may conduct a deposition, when a party may object to a question at a deposition, when a party may object to an interrogatory, when a party may enter upon land for inspection, when a party may make physical or mental inspections of another party, and what happens when a party does not cooperate with a court order directing compliance with discovery.

If the parties cannot reach a settlement, the case goes to trial. Just before trial, the plaintiff must decide whether to ask for a jury trial. Not all civil cases may be tried before a jury. The right to a jury trial is usually tied to the amount of money at issue: if the case concerns less than a certain amount, such as $10,000, the case may be limited to trial before a judge. In federal court, however, all parties have the constitutional right to a jury trial. If a plaintiff or defendant is granted a jury trial, both sides will have the opportunity to screen potential jurors for bias.

At trial, each side is given the opportunity to make an OPENING STATEMENT to the fact finder, be it judge or jury. The plaintiff then presents evidence. Evidence can include testimony from witnesses and tangible items presented through witnesses. When the plaintiff has presented her or his case, the defendant has the option of presenting evidence. After the defendant presents evidence, the parties make closing arguments to the fact finder.

After final arguments, the judge must determine what laws apply to the case. Both parties submit proposed instructions to the judge. If the case is tried before a jury, the judge must read instructions to the jury. If the case is tried before a judge, the judge will give the parties an opportunity to argue that certain favorable law controls the case.

At this point, either party may move the court for a directed verdict. This is a request that the court decide in the party's favor before deliberating on the case or sending it to the jury. A directed verdict may be granted only if no substantial evidence supports a finding in the opposing party's favor, and the opposing party bears the burden of producing evidence on the issue. If the judge does not issue a directed verdict, the fact finder retires to deliberate the case in secret.

The final phase of the trial is the judgment. The court has the option of requesting different types of verdicts. If it requests a general verdict, it is looking for a flat finding of liability or no liability. If it requests a special verdict, it expects the fact finder to answer specific factual questions, and then the judge determines the legal consequences of the answers.

In a complex jury trial, the court may request that the jury deliver a general verdict along with answers to special interrogatories. This form of verdict allows the judge to ensure that the jury delivers the correct verdict based on its factual findings.

The number of jurors on a civil jury can be as few as five or as many as twelve, depending on the jurisdiction. In most jurisdictions, including federal courts, the jury's decision must be unanimous, but some jurisdictions allow a verdict with something less than unanimity, such as an agreement among nine of twelve jurors.

If the defendant has failed to appear for the proceedings, default judgment will be entered for the plaintiff. However, in this situation, the defendant may contest the judgment when the plaintiff attempts to collect on it, by filing a separate suit and challenging the jurisdiction of the court.

When the verdict is delivered, the losing party may seek a reversal of the judgment. Sometimes a verdict is unsatisfactory to both parties, and both parties seek a reversal; this might happen, for example, when one party wins the lawsuit but receives a small damages award. Reversal of a verdict may be pursued through a motion for JUDGMENT NOTWITHSTANDING THE VERDICT, or J.N.O.V. (for judgment non obstante veredicto, which is Latin for "notwithstanding the verdict"). The standard for this order is the same as that for a directed verdict. A reversal of judgment usually occurs only in jury trials; judges generally are not inclined to reverse their own decisions.

A court may grant a new trial if procedural problems at trial prejudiced a party or worked against the interests of a party, and affected the verdict. Such problems include juror misconduct and unfair withholding of evidence by an opposing party. A new trial may also be granted if the damages authorized by the jury were excessive or inadequate. In extreme cases, a new trial may be granted if newly discovered evidence comes to light after the case is given to the jury.

All jurisdictions give parties to a civil suit the right to at least one appeal. A decision may be reversed if an error at trial prejudiced the appellant (the party bringing the appeal). Appeals courts generally do not reverse verdicts based on the WEIGHT OF EVIDENCE. Instead, they limit their review of cases to mistakes of law. This nebulous concept generally refers to mistakes relating to procedural and constitutional violations.

Sometimes a party may appeal a court order or decision to a higher court during trial. Known as an INTERLOCUTORY appeal, this option is limited. A party may appeal during trial if the party stands to suffer irreparable harm if the order or decision is not immediately reviewed. A party may also appeal an order or decision during trial if it affects a matter that is collateral to, or separate from, the litigation.

After a judgment is reached, the winning party must enforce it. If the losing party does not voluntarily relinquish the disputed property or pay the monetary judgment, the winning party may seize and sell the property of the losing party. This is accomplished by filing the judgment in the county where the property is located and proceeding to obtain ownership of the property through another civil suit. If the losing party has no money, the winning party may seek to garnish a portion of the losing party's wages. If the losing party does not work and has no property, the winning party may be unable to collect on the judgment.

Some parties come to court seeking provisional remedies, which are forms of temporary relief available in urgent situations. Temporary restraining orders and injunctions are court orders that direct a party to perform a certain act or refrain from performing a certain act. For example, if a party wants to bring suit to prevent the imminent demolition of what he believes is a historic building, he may petition the court for a TEMPORARY RESTRAINING ORDER to prevent demolition while the suit is filed. A temporary restraining order will last up to ten days. When the ten days have expired, the litigant may seek either renewal of the temporary restraining order or a preliminary injunction.

A preliminary INJUNCTION, if granted, requires a party to perform an act or refrain from performing an act until the end of trial. A permanent injunction is a court order that requires a defendant to perform an act or refrain from performing an act permanently.