WHAT HAPPENS IN A CIVIL LAWSUIT?
A civil lawsuit is a dispute between two or more people. The word people include businesses and governments. A criminal lawsuit, on the other hand, is a dispute between the state and a private individual for violations of the state’s criminal laws. This blog provides an overview of the civil lawsuit process.
THE CIVIL LAWSUIT PROCESS
The civil lawsuit process begins when a person consults a civil litigation attorney to discuss a dispute she is having with another person. The consultation may occur on the phone, over videoconferencing, or in person. The dispute may concern any dispute that is non-criminal. This includes breach of contract disputes, construction defect disputes, land disputes, Consumer Protection Act disputes, defamation disputes, etc.
An experienced civil litigation attorney will listen carefully to the person to determine if there is a valid dispute, decide whether the dispute can or should be settled out of court without filing a civil lawsuit, and the date when a civil lawsuit must be filed before the statute of limitations period expires. It is important for people to remember that when they hire an attorney, it does not become the attorney’s case. The case always belongs to the client. This means the client has the ultimate decision on whether a dispute should be settled out of court or whether a civil lawsuit should be filed.
If the dispute must be settled by filing a civil lawsuit, a plaintiff attorney prepares a document known as a complaint. The complaint is filed with the court and a copy of the complaint is served on the defendant. A complaint contains allegations that describe what a defendant did or did not do that harmed plaintiff. For example, a plaintiff may sue a defendant following a car accident for her injuries, lost wages, medical treatment, and mental anguish. A plaintiff may allege that defendant had a legal duty to control his vehicle but failed to do so when he drove through an intersection on a red light.
After receiving a copy of a plaintiff’s complaint, a defendant has 20 days to file and serve a document known as a response. Defendant’s response must either admit or deny each of plaintiff’s allegation. It is common for a defendant to deny every allegation, which then requires a plaintiff to prove each allegation. If a plaintiff cannot prove an important allegation, her case may be jeopardized.
A defendant can also respond with a counterclaim seeking damages. Using the example above, if the defendant believes plaintiff caused the car accident, the defendant may allege he is entitled to money from plaintiff for his injuries, medical treatment, lost wages, and mental anguish caused by her actions. Plaintiff would then need to file a reply to defendant’s counterclaim. Plaintiff’s reply would need to admit or deny every allegation.
THE DISCOVERY PROCESS
Once the lawsuit and any responses or counterclaims have been filed and served, the parties begin the discovery phase of civil litigation. The purpose of discovery is to collect information about the other party’s allegations. For example, if plaintiff alleges she was injured in a car accident, a defendant will want to discover all facts available concerning plaintiff’s health before the accident to help determine to what extent, if any, plaintiff was injured in the accident. A defendant might also want to collect records from plaintiff’s employer about her work history.
During the discovery process, the parties can ask each other written questions, subpoena records from third parties, interview witnesses, review documents, and take depositions. Usually, the parties’ attorneys do all these tasks simultaneously.
The discovery process can take weeks, months, and sometimes years to complete. Discovery is also the most important phase of the civil lawsuit process because it is when both parties learn the strengths and weaknesses of their cases. If discovery reveals that a plaintiff’s case or a defendant’s counterclaim rests on shaky evidence, the parties’ attorneys may urge settlement.
Trials are usually a gamble even for the best of cases. You simply never know what a judge or jury will do. For that reason, experienced civil litigation attorneys almost always suggest mediation or arbitration to settle a case.
Mediation and arbitration each involve a third-party neutral, usually an experienced attorney or retired judge. But that is where the similarities end.
Mediation: The parties choose a mediator. Once the parties agree on a mediator, the mediator will work with the parties’ lawyers to schedule the mediation at a private office. While at mediation, the mediator will hear each side’s case and then separately meet with each party to discuss the pros and cons of their case and the risks of proceeding to trial.
A mediator does not have the authority to force the parties to settle the case. Often one or both parties get stuck believing their case is stronger than it is. A good mediator will try to get the parties unstuck. But even those efforts can fail. The parties may leave mediation without a settlement. The parties can agree to another mediation, use a different mediator, or proceed to trial.
Whereas mediations are generally casual, arbitration are generally formal. They are mini trials. The parties’ attorneys typically discuss possible arbitrators, which can be other civil lawyers or judges with experience handling specific types of disputes. If the parties cannot agree on an arbitrator, one is assigned.
The two sides present their evidence and argue the merits of their cases to an arbitrator who determines which party prevailed. The arbitrator’s decision is final unless a party appeals within 30 days after receiving the decision. Appeal of an arbitration award means the case will proceed to trial. An experienced civil litigation lawyer will explain the possible downsides of appealing. It is often better to accept the arbitrator’s decision or try to negotiate a post-arbitration settlement.
If a case cannot be settled in mediation, resolved through arbitration, or negotiated by the parties’ counsel, the case will proceed to trial. There are two types of trials: (1) a bench trial in which the case is presented to a judge and (2) a jury trial.
Most people have seen jury trials on T.V. in which each side’s lawyers give opening statements about what the evidence will show and then present their evidence in an orderly and persuasive manner. Witnesses for both sides will appear during trial and testify. Witnesses include the parties, fact witnesses, and expert witnesses.
Trials can take one day or one month depending on the number of witnesses, exhibits, and nature of case. For example, a complex construction defect case may involve thousands of pages of documents and include 20-30 expert and fact witnesses. It is not uncommon for these types of trials to take 3-4 weeks, or more.
Once all the evidence has been presented to a jury, each side’s lawyers give closing arguments. The closing arguments summarize key evidence for the jury. The judge then reads what are known as jury instructions to the jury before the jury is dismissed to deliberate and reach a verdict. It may take the jury one hour or one week to reach a verdict, and sometimes that verdict is not what the parties expect.
If a party does not agree with a jury verdict, it may be able to file an appeal. A party cannot appeal a jury verdict simply because it dislikes the verdict. There must be some sort of problem with the verdict, such as the jury considered facts outside of what was presented at trial, or a juror talked with a witness about the case, or it appears the jury ignored critical relevant evidence.
The courts that rule on appeals are called appellate courts. There are three appellate courts in Washington State and a state supreme court, the highest appellate court. Parties submit briefings to the appellate court that set out the reasons why the verdict should be overturned. An appellate court may ask the attorneys to argue their cases in person, or the appellate court may make a decision based solely on the parties’ written briefings.
More often than not, appellate courts will not disturb a jury’s verdict. The parties will simply have to live with the verdict.
The appellate process can extend the civil litigation process by a year or more and be very expensive. For all these reasons, a plaintiff and defendant will ordinarily try to avoid the cost, time, and stress of going to trial or file an appeal and instead try to resolve the case by mediator, arbitrator, or settlement negotiations between the parties’ attorneys whenever possible.
GET THE HELP YOU NEED IN THE TRI-CITIES AT AULTMAN LAW
Aultman Law is a small law firm with big law firm experience! Attorney Jeff Aultman has tried numerous jury trials in several different states and handled hundreds of mediations in cases involving personal injury law, business law, construction law, and insurance law.
At Aultman Law, experience is the difference. Among the advantages you enjoy when you let Jeff Aultman represent you are an excellent track record, unparalleled customer service, and transparent fees. If you would like more information or want to schedule a free consultation, I invite you to call attorney Jeff Aultman at 509.282.2456 or complete an Online Contact Form.