Litigation Process & Important Terms
Law is a set of rules written to ensure the smooth functioning of everything in the country. Law is a legal system created to protect the good and penalize the bad. Mostly, all civil and criminal proceedings start with litigation, in this article you will know about the details of the ligation process and the terms used in it in simple words.
Plaintiff
The party who files a complaint that initiates a lawsuit.
Defendant
A party who is being sued.
Complaint
A document (Petition) a plaintiff files with the court and serves (summons) on the defendant to initiate a lawsuit.
Pleadings
The paperwork that is filed with the court to initiate and respond to a lawsuit.
Motion to Dismiss
A pleading that indicates that the jurisdiction is improper, fails to state a claim, or “statute of limitations” . Filed by defendant
Answer
A pleading that includes “affirmative defenses”. Filed by defendant.
Counterclaim/Third-party claim
A pleading that a defendant files back to the Plaintiff.
Reply
A pleading that a plaintiff uses if a counterclaim was filed.
Other pleadings
Intervention, Interpleader, Consolidation, Class Action Lawsuits, Injunctions, Specific Performance and other Equitable relief
Written Discovery
Interrogatories, Request for Documents/Admission/Physical/Mental/Inspect property.
Depositions
Oral testimony given by a party or witness prior to trial. The testimony is given under oath and is transcribed.
Expert Witnesses
A person who by virtue of education/training is believed to have expertise beyond that of the average person. Witnesses provide disclosures and depositions.
Motion for Summary Judgment
Ask court to decide case in your favor without a trial.
Standard-where there are no material facts in dispute and party is entitled to judgment as a matter of law.
Motion in Limine
A pretrial motion to decide whether the jury should hear certain evidence.
Trial Order -Step 1
Jury “Selection”-“Voire Dire”
Trial Order-Step 2
Opening statements (plaintiff then defendant)
Trial Order-Step 3
Plaintiff’s Case (plaintiff’s witnesses and documents and cross-exam by defendant)
Trial Order-Step 4
Defendant’s Case (defendant’s witnesses and documents and cross-exam by plaintiff)
Trial Order-Step 5
Rebuttal by Plaintiff
Trial Order-Step 6
Closing arguments
Decision-Step 1
Court gives “instructions” to Jury
Decision-Step 2
Jury Deliberates
Decision-Step 3
Jury reaches decision=”Verdict”
Decision-Step 4
Court then enters “Judgment” on Verdict
Decision-Step 4a
Court may grant new trial, a verdict for the other side (“JNOV”) or decrease/increase the amount of the verdict (“Remittitur” or “Addititur”)
Remittitur
When a judge decreases the amount of the verdict
Addititur
When a judge increases the amount of the verdict
JNOV-Judgment notwithstanding the verdict
A judgment issued by a judge that overturns the verdict of the jury if the judge finds jury bias or misconduct
Judgment
The decision of the judge in a trial usually based on the verdict of the jury; the judge may enter a judgment if there is no jury.
Collection of Judgment
Winning case does not ensure payment
Should consider ability to collect prior to filing
Cost to collect may exceed amount of judgment
Method to Collect- #1
Obtain lien on real property
Method to Collect-#2
Seize personal property
Method to Collect-#3
Garnish bank accounts
Method to Collect-#4
Garnish wages
Method to Collect-#5
Enforcement of Judgment in another state
May be limited by exemptions or limitations est. by state law (Homestead exemption)
Litigation
The process of bringing, maintaining, and defending a lawsuit.
Negotiation/Informal settlement
A term that describes the transfer of negotiable instruments to subsequent transferees.
Mediation
A form of alternative dispute resolution in which the parties use a mediator to assist to possibly reach a settlement of their dispute.
Mediation process
1. Little formality
2. No witnesses or cross-exam
3. No evidentiary restrictions
4. No decision by mediator-cannot compel outcome
5. Statements made/Information provided generally not admissible at trial
Arbitration
A form of alternative dispute resolution in which the parties choose an impartial third party to hear and decide their dispute. Preferred by Defendants because less costly and less chance of runaway verdict.
Arbitration process
1. Discovery limited
2. Hearing with witness
