If you get caught up in civil litigation, whether as a plaintiff seeking damages or as a defendant defending yourself against another’s claims, civil litigation can be an intimidating process. A general understanding of the process can be helpful in knowing what to expect, and determining whether an attorney can help you, and planning for the expenses associated with litigation. Of course, no two lawsuits are the same, and all rules come with exceptions, which is why attorneys can be helpful with your particular dispute, even if you don’t hire them for the entire process. This multi-part article is intended to provide an overview of the civil litigation process to give you context for your particular dispute.
“Civil Litigation” Defined
Different people may be referring to different concepts when they speak of “civil litigation” or “civil issues.” In this article, we use the term “civil litigation” to refer to formal lawsuits filed in court that deal with money or property. Thus, “civil litigation” includes lawsuits regarding personal injury claims, professional malpractice, contract disputes, real estate transactions, title disputes, landlord-tenant issues, and construction defects. The term does not include resolution of criminal charges, domestic relations (family law) issues, or probate matters (wills, trusts, and estates). In addition, as used here, “civil litigation” does not include bankruptcy filings, even though they deal with money and property, because they are governed by a unique set of statutes and rules, and are handled in federal court by specialized courts.
“Pleadings” are certain papers filed within the courts that state the parties’ claims and defenses. In civil litigation, the initial pleadings will shape the course of litigation and outline the issues to be decided by the judge and jury.
Civil litigation is typically commenced when the “plaintiff”—the person or company seeking damages or relief—files a “complaint.” The purpose of a complaint is to put the “defendant”—the party from whom the plaintiff is seeking damages or action—on notice of what the plaintiff wants and why the plaintiff thinks he or she is entitled to the claimed relief.
While different rules of pleading apply to complaints, depending on what type of action the plaintiff is bringing, plaintiffs are not required to state each and every fact that supports their claims, nor are they required to prove their claim at this stage. Instead, they are essentially outlining the event or transaction that is the basis of their lawsuit and identifying their theories of liability.
By way of example, a plaintiff injured in an automobile accident does not need to attach all her medical records, bills, and expert reports to her complaint to prove all her injuries. Instead, it is usually enough that she states the facts of the accident, the reason she thinks the accident was the defendant’s fault, and the categories of damages she will be seeking.
Plaintiffs should also state whether they demand a trial by jury; if not requested by either party, the case will be decided only by “bench trial”—i.e., trial to a judge only.
Service of Process
The plaintiff must then have the defendant “served” with a copy of the complaint and summons to appear at court. It is usually best to have an experienced process server or sheriff’s deputy handle service of the complaint upon the defendant. The plaintiff cannot serve the complaint herself and a whole set of rules apply to these situations, such as serving members of the defendant’s household, serving defendant at his workplace, and dealing with defendants who refuse to accept service or who dodge service.
Once the defendant has been served, if he disagrees with the complaint, he needs to file an “answer.” Note that there are motions that can and should be filed before, or instead of, filing an answer, such as some jurisdictional and technical defenses, but they are beyond the scope of this article, and less common; getting a complaint dismissed at this stage is rare and difficult because the law favors deciding disputes on their merits.
In the answer, the defendant must identify which of the plaintiff’s allegations the defendant admits and which allegations the defendant denies. Using the automobile accident example, the defendant could admit that he caused the accident by accidentally rear-ending the plaintiff, but deny that the plaintiff is hurt as bad as she says she is, or stating that he does not know how bad she might have been hurt by the accident.
Like the plaintiff’s complaint, the defendant’s answer should include a jury demand if he wants his case to be decided by one. Failing to ask for one at this stage will often result in waiving any right to a jury trial.
The defendant should also allege any “affirmative defenses” that might apply to the dispute. Most affirmative defenses are defenses that state, in essence, even if the facts plaintiff alleged are true, she should not recover any damages or her damages should be limited because of some legal doctrine, rule, statute, or factual circumstance. For example, if the case is filed in Colorado and it relates to an automobile accident that happened more than three years ago, then the defendant can raise the affirmative defense that the statute of limitations bars the plaintiff’s claims because, even if they are true, she waited too long to file the complaint.
The law provides many affirmative defenses, depending on the facts of the case, and they can be waived if they are not properly included in the answer; for this reason, we recommend you at least consult with an experienced civil litigation attorney before filing an answer.
Counterclaims, Cross Claims, and Third-Party Claims
There are circumstances when a defendant may want to make his own claims. If he wants to make a claim against the plaintiff, he should file a “counterclaim.” A counterclaim looks similar to a plaintiff’s complaint, but it is typically included in the defendant’s answer. If the defendant neglects to file the counterclaim with his answer, he will need to ask the court’s permission to file one. The longer he waits, the less likely the request is to be granted.
A defendant can also file “cross-claims” against his co-defendants. Most cross-claims take the form of a claim that essentially states, “If I have to pay the plaintiff, then you have to pay me,” but they can include other theories of liability that require one defendant to pay damages to the other.
The defendant can also bring a “third-party defendant” into the lawsuit by filing a “third-party complaint.” In most instances, this is done where the defendant thinks that another person who is not in the lawsuit is at fault for at least a portion of plaintiff’s damages, or needs to pay the defendant back for any damages he has to pay the plaintiff. For example, where a homeowner sues a general contractor for construction defects, the general contractor will often turn around and files a third-party complaint against its subcontractors who actually did the work in question.
The rules for answering or responding to counterclaims, cross-claims, and third-party claims are essentially the same as those for defendants responding to complaints. If you have questions about how these are done, we recommend contacting an experienced civil litigation attorney who can guide you through the various rules and requirements.
Once all claims are answered or disposed of, the case will typically be ready to move into the next stage of the litigation, which is called “discovery.” The discovery phase of litigation will be dealt with in a later article.
Need for an Attorney
If you find yourself contemplating litigation, or involved in it already, you can call Springs Law Group for advice. We offer a free initial consultation to discuss your unique issues and decide whether and how we could help you with your dispute. Regardless of whether you hire a Springs Law Group attorney, we recommend you contact an attorney experienced in civil litigation because it is such a complex and daunting process, and someone who knows the rules will have a distinct advantage over someone who does not.
Jacob Kimball is a Civil Litigation and Personal Injury Attorney who practices in Colorado Springs, CO. He graduated from the Ohio State Moritz College of Law, and has been practicing law for 13 years now. Jacob Kimball firmly believes in fighting for the injured. Learn more about his experience here.