Smid Law Dec. 17, 2021

Initiating a civil lawsuit can seem overwhelming and intimidating, but it doesn’t have to be. Having even a basic understanding of how a lawsuit operates from beginning to end can help alleviate some of the unknown.

The first step is finding an attorney that practices in the legal field of your potential claim. Once you find an attorney that meets your legal needs and budget, it is common for a demand letter to be sent to the potential defendant(s). Demand letters outline the facts, potential claims you have against the defendant(s), and attempt to settle such claims without getting the courts involved. The defendant(s) might decide that it is in their best interest to settle in order save the costs of litigation.

If a demand letter does not lead to settlement, the next step, which is the first step in a lawsuit is to file a complaint and serve it on the defendant(s). The complaint lays out the plaintiff’s version of the facts and how the defendant(s) damaged them. Additionally, the complaint asserts specific legal claims against the defendant(s) in order to establish why the plaintiff should be entitled to money damages or other relief. After being served with the complaint, the defendant(s) have twenty (20) days or twenty-three (23) days, if the complaint was received by mail, to respond to the complaint with an answer. The answer allows the defendant(s) to tell their version of the incident that led to the plaintiff filing a complaint. This is done through the defendant(s) admitting any statements made by the plaintiff in its complaint that are true, and denying all of the plaintiff’s statements that are not true. Furthermore, the defendant(s) can assert any counterclaims against the plaintiff and raise affirmative defenses. If the defendant(s) fail to file an answer within twenty (20) days or twenty-three (23) days, if the complaint was received by mail, a court can enter a default judgment against them.

After the parties have filed their complaint and answer, discovery then generally follows. Discovery is the process of gathering evidence in order for the parties to obtain evidence that is in the opposing party’s possession, or even from individuals or companies that are not a part of the lawsuit. Doing so allows the parties to develop strategies for litigation and it can even promote settlement. Discovery occurs through written interrogatories that ask the opposing party to answer questions that are relevant to the case, depositions, which are interviews where counsel of one party asks a party or witness questions about the case under oath, or requests for production of documents. Another tool that can be used are requests for admission, which asks the other party to admit that certain facts are true, a document is genuine, etc. If a party admits to a request for admission, then it becomes undisputed and does not need to be litigated.

Motion practice is not necessarily the next step in the process because a party can file a motion prior to discovery or post-trial, but motions can be used as a way to prevent a case from going to trial. If the defendant(s) believe that the plaintiff’s case does not have validity, a motion for judgment on the pleadings can be brought after the answer is filed. Other common motions are motions to dismiss, which can be brought, for example, when the claim is barred by a statute of limitations, and motions for summary judgment, which are brought if a party feels that there are no genuine issues of material fact and it is entitled to judgment as a matter of law. Post-trial motions are sometimes used when a losing party believes that the court or jury made an error.

We have finally arrived at the topic of trial. In reality, trials do not actually occur as frequently as the media portrays. Litigation and trial are expensive. That is why parties will commonly settle because attorney fees and other expenses can add up quickly. Each party has the right to a trial by jury in the majority of cases. Therefore, before a trial by jury officially begins, jury selection has to take place. During jury selection, counsel for each party is able to question potential jurors in order to reveal biases or personal information that is favorable to their case. A certain number of potential jurors can also be excluded by counsel from serving on the jury for reasons other than bias, but a party cannot discriminate on the basis of race, ethnicity, or sex. These exclusions are called peremptory challenges.

Once the jury is set, trial begins with opening statements made by each party and then the presentation of evidence, including witness testimony. Counsel for each party can cross-examine the other party’s witnesses. The plaintiff presents its case first and if the defendant believes that an adequate case was not made, a directed verdict may be asked for. If the motion for a directed verdict is denied, the defendant then presents its case. Once both sides have presented their case, closing arguments are made and jury instructions are proposed to the judge. After the jury instructions are determined, they are given to the jury as a guide for its deliberations. The jury must then come to a decision and return a verdict to the court.

If the non-prevailing party feels like an error was made during trial, that party can consider appealing the trial court’s verdict. When a party appeals, the appeal is heard by a higher court. In order to reverse a jury’s decision, a reversible error has to exist. As for reversing a judge’s decision, the appellate court will not typically reverse the decision unless the judge abused his/her discretion. Regardless, the standards are not easy to establish, which makes the path to receiving a successful appeal a difficult one.

If you have any questions about the lawsuit process or would like to initiate the process, contact Smid Law.


The information provided in this blog does not, and is not intended to, constitute legal advice; instead, all information available in this blog is for general informational purposes only. Information in this blog may not constitute the most up-to-date legal information.

Readers of this blog should contact their attorney to obtain advice with respect to any particular legal matter. No reader of this blog should act or refrain from acting on the basis of information in this blog without first seeking legal advice from counsel in the relevant jurisdiction. Use of any of the information contained within this blog does not create an attorney-client relationship between the reader and Smid Law.