I. Filing a Lawsuit: Getting Started
Preliminaries. Prior to filing a lawsuit, the parties normally
have some sort of dispute which leads to an escalating interchange between them.
At some point, one or more of the parties refers the matter to legal counsel
who reviews the case and usually sends a demand letter to the other party or
parties.
The Petition. If the dispute remains unresolved and one or more
of the parties deems it worthwhile, a court document called a Plaintiff's
Original Petition is filed with a court that has authority over the subject
matter of the dispute.
The petition contains the basic claims made by the plaintiff and is required
to provide at least enough information for the other side to understand what
claims are made.
Once the suit is filed, the judicial process is set into motion.
Service. The clerk of the court will issue a citation, which is
an official court document notifying the party that has been sued (the
defendant) that a suit has been filed and that a response is required.
The Answer. The defendant has a deadline to respond to the
lawsuit. Many times the deadline is the first Monday after the expiration
of 20 days following service of the citation on the defendant.
The defendant responds to the plaintiff's petition by filing the
"Defendant's Original Answer."
The answer will usually contain a denial of the plaintiff's claims, and may
contest the authority of the court to hear the case, contest the location of the
court and point out some well established defenses.
II. Restraining Orders and Injunctions
Temporary Restraining Orders. Sometimes also referred to as
"TROs," a temporary restraining order is an emergency order issued by
the judge in urgent situations. A TRO hearing can be ex parte, which means that the other side is not
even present.
The theory is that the problem is so urgent that there is no time for formal
notice. Courts will expect to receive clear evidence of an emergency before granting
a TRO.
Temporary Injunction. A temporary injunction is like a TRO
except that formal notice is given, a hearing date is set and a full hearing is
required prior to its issuance.
Basic Requirements. Both TROs and temporary injunctions require
proof of immediate harm, irreparable harm, no alternative remedy (such as, a
judgment for money after a trial) and the probability of winning at trial.
Both TROs and injunctions can be issued before the Defendant has filed an
Answer.
III. Discovery
Investigation Process. Discovery is the broad name for the
investigation process that goes on during a lawsuit. It primarily consists
of written discovery, such as interrogatories, requests for admissions
and requests for production, and manually recorded interviews called depositions.
Interrogatories. This is a set of written questions about the
case, designed to learn the facts of the case and what the testimony of various
witnesses will be.
Examples: "What is the name of your
expert" or "When did you first meet the Plaintiff?"
Requests for Admission. These requests require that a statement be
admitted, denied or an explanation given why it can't be admitted or denied.
Example: "Admit that you placed 100
cases of tulips on the delivery truck on July 12, 2000."
Requests for Production. These requests list the documents that
the requesting party believe will help in proving something at trial.
Example: "Produce all documents which refer
to the Barsalou Soap Company."
Depositions. This procedure involves a face to face meeting
between the attorneys in the case and a potential witness in the case.
The witness is placed under oath and the attorney who called the deposition
asks the witness questions about the case.
Example: "How did you get the client lists
that you used to get new business?"
A court reporter takes down everything that is said and later produces a
written transcript of the entire conversation. Depositions can also be videotaped.
The deposition transcript can used at trial under certain circumstances,
including where the witness attempts to change his or her prior testimony.
The Trial.
Scheduling. The court usually sets a trial date, along with a
number of other deadlines, in a docket control order issued within the first few
months following the filing of the lawsuit.
The case is normally set on a two-week trial docket, meaning that you can be
called to trial at any time during that period, with usually 24 hours notice.
Once the case is called to trial, your attorney and you will go to the
courthouse and begin the trial process.
Pretrial Motions. There may be pretrial motions to consider
before going any further.
For example, a motion in limine may be heard by the
judge in which one or more of the parties asks that the court order that certain
inadmissible evidence not be mentioned at all during the trial.
Jury Selection. Next each side will discuss the case with a
panel of potential jurors in an attempt to determine which panel members will
make the best jurors. This process is called voir dire.
Opening Statements. After the jury is selected, the plaintiff
will make an opening statement to the jury, explaining the nature of the case,
what evidence the jury can expect to see and presenting the plaintiff's
viewpoint.
When the plaintiff's attorney is finished with his opening statement, the
defendant's lawyer repeats the process from the defendant's perspective.
The Plaintiff's Case. After opening statements are completed,
the plaintiff's counsel begins his case by calling the plaintiff's first witness
to the witness stand. [All other witnesses (other than the parties) are
normally excluded from the courtroom.]
When a party questions his own witness it is called a direct
examination.
After the direct examination, the plaintiff passes the witness and
the other side is allowed to question the witness. This is the cross
examination that everyone is familiar with. During cross examination, the
attorney is allowed to "lead the witness" - something not permitted on
direct examination. This means that the question can suggest the answer.
Example: "Isn't it true that you met with
your staff after hours and on weekends?"
The plaintiff's lawyer presents each one of his witnesses until he has put on
all of his evidence. At this point, the plaintiff rests.
Directed Verdict. The defendant may make a motion at this point
for dismissal of the plaintiff's case if there has not been sufficient evidence
to prove each element of the case.
The Defendant's Case. The court usually does not grant the motion for
directed verdict and the defendant proceeds to put on each of his witnesses for
direct and cross examination.
After all the witnesses have been heard or excluded, the defendant rests.
Closing Arguments. After both sides have rested their cases, it
is time for closing arguments. At this point, the plaintiff's lawyer will
speak directly to the jury, arguing his case based on the evidence that the jury
has seen.
Although both sides get equal time to make jury arguments, the plaintiff
usually splits his time so he can speak first and last. The defendant's
lawyer's argument is sandwiched in between these two plaintiff's
arguments.
Burden of Proof. The reason for allowing the plaintiff to have
the last word is that the plaintiff has the burden of proof. If the jury
is not persuaded by the plaintiff's arguments, it should rule against him even
if they weren't persuaded by the defendant very much either.
Jury Deliberations. After the closing arguments are finished,
the case is given to the jury. The jury receives a set of instructions
from the judge and a list of questions to answer. The answers to these
questions determines who wins the case.
The jury goes into the jury room and discusses the case. Occasionally,
the jury will send out questions to be answered.
Example: "If we find that the defendant was
not negligent, do we have to decide the amount of the plaintiff's damages?"
Usually the jury decides by a majority vote in which at least 10 out of
the 12 jurors agree.
