You have decided to sue somebody. It may be a breach of contract dispute, a divorce, an action against a debtor, a suit for child custody, or a claim for negligence or some personal injury. Perhaps you have tried to resolve the dispute out of court by negotiating with the other party or by going through an arbitration process. Unsuccessful, you have decided to sue the person or company in court.
What to do next? If you have the financial resources, you may decide to engage the help of an attorney who will take the case for you. In an arena where success or failure can have big consequences, hiring a competent attorney may be some of the best money you will ever spend. However, times are tough and hiring an attorney may not be feasible for many would-be litigants. You may decide to handle the case on your own. Although the authorized practice of law is limited to individuals who are admitted to the state bar, the law does permit an individual to work his case pro se, or for himself. This article attempts to lay out the different parts of a lawsuit for the pro se litigant in the hopes of making this journey a little less daunting. This article should not be taken in any way as legal counsel or advice. Instead, it merely describes the different parts of a typical civil lawsuit as an aid to pro se litigants in their own planning.
Investigation
Before you sue an individual, a company or some other legal entity, you have to make sure you have sufficient evidence to prevail on your legal argument. Sometimes, this is very simple. Perhaps an absolute divorce in your state requires being physically separated for a year. Maybe you have a registered trademark or patent that gives you a presumption on the evidence. Perhaps you have a case that requires engaging the help of a private investigator. Regardless, you will want to make sure that you have “the goods”, or evidence, to successfully support your case. You will need to make sure your evidence is relevant to your legal claim.
Pleadings
Pleadings are the initial documents that you, the plaintiff, file with the court to begin the lawsuit. At a minimum, a pleading is comprised of the complaint, which is an outline of the claims for relief that you are seeking from the defendant. Claims can include monetary damages, injunctive relief, or perhaps even specific performance. All claims must be supported by a cause-of-action. In other words, what you are suing for must be a civil action that the law recognizes. Negligence, breach of contract or fiduciary duty, defamation, tortious interference, copyright infringement and wrongful death are just a handful of examples of different causes-of-action. The complaint with your causes(s) of action may be a simple form you have filled out and that the court has made available, or it may be a more lengthy document that you have drafted.
Once you have you prepared your complaint, you need to file it with the court. Which court you file it with is a very important question. State superior court? A federal district court? Small claims court? The answer here depends upon many factors, including where the defendant is, where the disputed transactions or occurrences transpired, how much money is in controversy and whether the underlying causes of actions are based on state or federal law.
After you file the complaint with your court, the clerk of court will give you a summons. A summons is an order of the court for the parties to appear in order that the complaint may be heard and litigated. However, before any court can exercise its power, or jurisdiction, over a defendant, that defendant must be served. The law requires that a defendant have proper notice of a complaint before any powers of the court can be exercised over him in a civil suit. For the lawsuit to move forward, the defendant or defendants must be served with notice of the lawsuit. At this stage, the pro se litigant needs to make sure that a process server is engaged to deliver the complaint and summons on the defendant. Most courts will require proof of this notice, so you will have to get a notarized affidavit of service or return-of-service affidavit from the sheriff or private process server that indeed the defendant was served with notice. The question of notice is at heart a constitutional inquiry, and if a court determines that a defendant wasn’t fairly apprised of the pendency of the action, then no remedy can be obtained by the plaintiff. Beware: service of process on a defendant by the plaintiff is not permitted. Process serving must be done by someone who is not a party to the lawsuit.
Once the complaint and summons have been served on the defendant, the defendant will usually either file an answer or move the court to dismiss the case. A motion to dismiss, typically a 12b-6 motion or perhaps a judgment on the pleadings, is made when the defendant asserts that the plaintiff doesn’t have a cause-of-action that the law recognizes. If you’re suing under a cause-of-action that the law doesn’t recognize, or your lack personal or subject-matter jurisdiction, then the defendant may move to dismiss.
Alternately, the defendant may answer your complaint. He may affirm or deny some of the specific facts listed in your complaint. The defendant might also counter-claim, or sue you, the plaintiff. The defendant may not do anything at all, in which case you as plaintiff may be entitled to what is called a default judgment.
Discovery
Discovery is the fact-finding process whereby the parties to the lawsuit disclose information to each other and prepare their evidentiary resources, including witnesses, for trial. Shortly after initial pleadings and answers by the defendant, a judge will usually require a pre-trial discovery conference between the parties. Discovery can be a very big deal in high-profile or corporate cases. At this stage, the lawyer or pro se litigant may ask the court to issues subpoenas, or orders to produce testimony or documents from witnesses.
Pre-trial
At the pre-trial stage, the litigants are getting ready to take the case to the courtroom. Often, defendants at this phase will make a motion to the court for summary judgment. When a defendant moves for summary judgment, he is arguing that the plaintiff cannot prevail as a matter of law, even looking at the evidence in a light most favorable to the plaintiff.
There can be renewed attempts at settling the case during this stage, too. With all the facts and legal arguments out on the table, the parties may be in a better position to settle their dispute without going to trial. Other times, parties will decide it makes more sense to put their case in court before a jury or a judge in a bench trial.
Trial
This is the stage where the litigants argue their respective cases in court. You may have a civil case heard by a jury. Jury trials involve jurors deciding questions of fact. At other times a “bench trial” presided over by a judge is used, where the judge decides both questions of fact and law. Trials involve opening statements by attorneys, witness testimony (lay, expert and character), and closing arguments. There are extensive rules of evidence regarding what types of evidence are allowed in court. If you’re looking for resources, the Federal Rules of Evidence (FRE) can be a good starting place. After each side has presented their evidence and legal arguments, the fact-finder, judge or jury, will take leave from the courtroom to decide the case.
Judgment
Once the civil case has been decided by the judge or jury, a final judgment is formally entered by the court. If you have prevailed as plaintiff, you may have a specific judgment that includes the damages the court has determined are owed you by the defendant. If the defendant successfully counter-sued, the judgment may be against you, the plaintiff. All 50 states will generally enforce the judgments of other states, and this is supported also by the “full faith and credit” clause of the US Constitution. Sometimes, a judge may adjust a jury’s award if it is required by precedent or statute, or is in their discretion.
A judgment in and of itself is worth nothing: suitable only for framing. If you have a judgment for $50,000, in order to collect you will need that judgment executed upon. This usually entails employing the local sheriff or federal marshal to enforce the judgment through a writ of execution. This execution stage can involve seizing assets, selling them at auction, or ordering some other exercise of power over the property.
Appeal
If you’ve come out on the losing end of your law suit, you may decide to appeal the judgment. Appeals are generally not successful, so you will want to make sure you have strong grounds for appeal. If the judge has made some mistake of law, or been clearly erroneous or abused his discretion, there may be support for a successful appeal.
If you’re a pro se litigant, I hope this outline proves helpful. This article provides just a sketch of a typical lawsuit’s life cycle, and only scratches the surface at that. There are many different kinds of cases. Most never go to trial. Nevertheless, you may find this article educational, and a real aid to you as you navigate the legal landscape.
~David Williams, Class of 2013~
