Civil litigation is the legal process in resolving disputes between individuals, as distinguished from a Criminal case-where person who violates criminal law, is prosecuted by the state, the latter concerns with the relationship between the individual and society.
No two cases are alike and the procedures vary with the nature and complexity of the legal and evidentiary issues involved. The following is a general outline of the stages in civil litigation.
Every case begins with the filing of a Complaint and Service of Summons. The complaint will contain one or more “cause of action” such as Fraud, Breach of Contract, Negligence, or Intentional Torts.
After the Summons and Complaint have been filed with the court with jurisdiction, they must be properly served on the defendant(s). If the defendant will accept service, he/she may sign the “Acknowledgment of Service”. Otherwise, the documents have to be properly served.
The defendants have 30 days from the date of service of the Summons and Complaint to serve on the Plaintiff either an Answer to the Complaint or a pleading challenging the sufficiency of the Complaint. Responses challenging the sufficiency of the Complaint include a motion called “Demurrer” and a “Motion to Strike”.
If the defendant decides to file a demurrer or motion to strike, these motions must be heard and ruled upon before the matter may proceed. This can take up to 2 months. If the motion is sustained and the court grants leave to amend the complaint, a new complaint or Motion will be filed causing more delays.
Once the Complaint and Answer have been filed both parties commence “discovery” procedures by which the evidence necessary to prosecute both sides of the case. Depending on the nature and complexity of the case, one or more of the following discovery devices:
Interrogatories –written questions to the other party which must be answered under oath.
Request for Production of Documents- Demands for production of documents by the parties involved
Request for Admission - Requiring the parties to affirm or deny any of the allegations
Deposition - The parties may be required to appear in a location agreed by the parties to answer questions under oath in front of a court reporter. Can also be required by a third party.
Subpoena Documents From Third Party- Documents may be subpoenaed from 3rd parties such as banks, employers, or escrow companies.
Throughout the case, the Court will set a series of Case management conferences to be attended by attorneys for all parties. These hearings are designed to determine whether the case is ready for trial. When the court feels that the case is ready for trial, it will set the date for trial and make orders concerning the completion of discovery and final preparation for trial.
Throughout the trial, settlement negotiations may proceed. Often the court will require the parties to try to a mediation of the issues or will set a “Mandatory Settlement Conference” (MSC) before the trial date. Settlement negotiations generally become more intense as the trial date approaches.
About 90% of the cases settle before trial. However, if the parties cannot settle the case, the only way to resolve the issues is through trial.
Appeal and other legal strategies.