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How Civil Lawsuits Work: Before the Trial

Authored By: Carl Vinson Institute
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How Civil Lawsuits Work: Before the Trial


This document tells you the following:

  • How does a civil lawsuit begin?
  • What happens when you try to settle a case out of court?
  • What are "pleadings"?
  • What is "discovery"?

Introduction

You probably have some idea of what is involved in the criminal justice process, if only through watching television programs. But you may know less about the civil justice process, even though there are more civil than criminal law cases.

As you may recall, a main function of our courts is to settle disputes.

The process of settling a dispute through court action is called litigation. This is a case study of a civil law proceeding. The characters are imaginary, but the situation is based on what could take place in a real case. The main character in the case will receive an injury. She will then seek payment from the party whom she believes to be legally responsible.

Watch for what lawyers do to prepare for a case. As the case moves toward the actual trial, note how it becomes more like verbal combat-in other words, more adversarial.

Note the rules that define or limit this adversarial tendency. The rules are intended to ensure that each party will have a fair hearing. Finally, how the civil justice process might be streamlined.

When You Need a Lawyer
In Civil Cases

 

  • When you are sued
  • When you want to sue someone
  • When a specific right to property of some value is involved, as when buying or selling real estate
  • When you want to transfer your property to others
  • When you want to set up a business
  • When you want to end a marriage
  • When you want to protect or enforce what you consider a legal right
In Criminal Cases
  • When you are accused of a crime, especially when you may be imprisoned. You have a constitutional right to a lawyer in these cases. (If you cannot afford a lawyer, the state must provide one.)
  • When you may be faced with serious consequences, such as a large fine or the loss of your driver's license

Retaining a Lawyer

Attempt to Settle Out of Court

Determining Court of Jurisdiction

Before filing (bringing) suit, the attorney must determine which court has jurisdiction over the case. Jurisdiction has two main aspects-subject matter and personal jurisdiction. That is, a court must have the authority to enforce the kinds of laws that are involved in the dispute (subject matter jurisdiction), and it must have the power to act with respect to the parties before it (personal jurisdiction).

PLEADINGS

Complaint

To start a civil action, the plaintiff's attorney must file a complaint with the appropriate court. Filing means delivering the complaint to the court clerk. The complaint is a legal document prepared by the plaintiff or his or her attorney. It sets out, in numbered paragraph form, the plaintiff's version of the facts supporting the claim against the defendant. It indicates which court has jurisdiction. If appropriate, it names the amount of money the plaintiff is asking the defendant to pay.

Professionals Involved in Court Proceedings

Clerks of Court Clerks of court are appointed; however, in Georgia the cleark of each county superior court is electe by county residents. They file legal documents and keep records on court cases, real property, voting, and other matters. Clerks of court differ from law clerks. who assist judges or lawyers by researching legal issues or drafting opinions and are law school students or recent graduates.
Sheriffs and Marshals Sheriffs are elected by county residents; marshals are appointed. They enforce the decisions and orders of the court (in Georgia, the sheriff has this responsibility; in federal courts, the federal marshal does). They also serve (deliver) papers of the court (such as summonses), bring persons before the court, and keep order in the courtroom.
Lawyers Lawyers are retained (hired) by parties to represent them in legal disputes. They "fight" for a party's interests in a case, give advice and counsel in legal matters, and keep parties informed about their legal rights and duties.
Bailiffs Bailiffs help judges keep order in the court. They usher jury members in and out of the jury box and witnesses to the stand.
Court Reporters Court reporters record the proceedings of a trial (usually by using a stenotype machine or tape recorder) and then prepare written transcripts of the proceedings.

Summons

The plaintiff in a civil case also must inform the defendant that a claim is being made against him or her. This notification is very important. The defendant is usually notified by being served (or presented with) a copy of the complaint and a paper called a summons. The summons tells the defendant that he or she has 30 days from the date of receiving the summons to respond to the claims made in the plaintiff's complaint.

In Georgia, a summons is usually hand-delivered to the defendant at his or her home. The server is usually the county sheriff or some other officer of the court. Serving is not always easy.

Answer

After receiving the summons, the defendant should respond to the plaintiff's claims. The response is called the answer. The answer is a legal document that is filed with the clerk of the court. In it, the defendant admits or denies the allegations made in the complaint. The answer may also state the defendant's legal defenses to the complaint.

The defendant's answer must also set out any claims that the defendant may have against the plaintiff arising from the event that resulted in the plaintiff's action. A defendant's claim against a plaintiff is known as a counterclaim.

The plaintiff's complaint and the defendant's answer are the basic pleadings in any civil case. The pleadings establish what factual and legal issues are in dispute and what must be determined in the trial. A defendant's failure to respond to the plaintiff's claims by not filing an answer is called a default. If the defendant defaults, he or she loses the case. It is therefore very important to respond when served with a complaint. The plaintiff may prevail if the defendant does not respond.
 

PREPARING FOR TRIAL-DISCOVERY

Once a civil case is filed, it takes several months (sometimes over a year) for it to come to trial, particularly in the more populous counties in Georgia. The old adage that "the wheels of justice turn slowly" is very true in the civil law arena.

Attorneys have much pretrial work to do. Filing a complaint or an answer is just the beginning.

In most civil cases, the lawyers for the parties will engage in some degree of pretrial discovery. Discovery refers to a variety of techniques and procedures that the law of Georgia permits both parties in a lawsuit to use to find out about the other side's case.

Discovery is used for fact gathering. It can also be important in defining the real points of controversy in a given case.

Today, quite broad and far-reaching discovery is usually permitted. Each party's attorney can develop a wealth of information about the other side's case. A main advantage is that neither attorney is likely to be surprised by the other at the trial. A disadvantage of extensive discovery is that it is time-consuming and expensive.

Interrogatories

Interrogatories are one technique of discovery. Interrogatories are written questions that one party's attorney sends to another party's attorney. They must be answered in writing and under oath by the party to whom they are addressed. These answers must be filed with the clerk of the court and served to the opposing attorney within 30 days of the mailing of the interrogatories. Except in very complex cases, Georgia law limits the number of interrogatories to 50. Failure to respond can result in sanctions and penalties by the court.

A party does not have an absolute right to have discovery of anything and everything.

For example, suppose an attorney asked, "State whether you smoked marijuana before operating your automobile on April 3." This demand could be rejected because the U.S. Constitution protects citizens against self-incrimination.

Suppose the demand was, "Please state the substance of any conversation you have had with any attorney regarding this case." This interrogatory attempts to invade another protected area: the confidential attorney-client relationship. It also could be rejected.

Request for Production of Documents

In this legal document, one attorney asks the opposing lawyer to make certain documents available for inspection and copying. This procedure is often used to "discover" medical bills, photos of accident scenes, repair bills, estimates, etc. Like the interrogatories, a "request for production" must be responded to within 30 days. Again, failure to respond to requests can result in sanctions and penalties by the court.

Deposition

Another widely used discovery tool is the deposition. A deposition is oral testimony of a plaintiff, defendant, or witness taken under oath. It is recorded by a court reporter who puts it into a printed or typed form that becomes the actual deposition. Depositions are usually much better ways to gain information than are interrogatories. Answers to interrogatories are often very short. They disclose as little information as possible. Depositions, on the other hand, allow the questioning of witnesses in person, with follow-up questions to probe for additional information.

At depositions, the opposing attorney has a right to be present to protect the interests of his or her client. He or she may examine a witness being deposed by the other attorney. This questioning is known as cross-examination.

Depositions are frequently used at trials to impeach or discredit a particular witness's testimony. A deposition records and preserves the testimony of a witness. Therefore it can verify that a witness has either changed or forgotten his or her previous testimony. Using the deposition at a trial for this purpose is called impeaching a witness.

The law recognizes that it is expensive, inconvenient, and sometimes impossible for some witnesses to appear at a trial of a case. Courts often allow the deposition of a witness to be read to the jury in open court. In this way, the witness need not come to court to testify. Rather than compelling a physician to appear in court, for example, his or her deposition will be read. A deposition may also be read if a witness has died or moved outside the jurisdiction of the court.

For more information about the civil trial process, please see "How Civil Lawsuits Work: The Trial" and "How Civil Lawsuits Work: After the Trial."


* Excerpted from An Introduction to Law in Georgia, Fourth Edition, published by the Carl Vinson Institute of Government, 1998 (updated 2004). The Vinson Institute is not responsible for errors in the online text. Content is for information only; in no way should the information in the book be considered legal advice to anyone on any matter for which there are legal implications. Any such matter should be specifically addressed with an attorney. The book is available for purchase at www.cviog.uga.eduor by contacting the Publications Program, Carl Vinson Institute of Government, University of Georgia, 201 M. Milledge Avenue, Athens, GA 30602; telephone 706-542-6377; fax 706-542-6239.

Last Review and Update: Jun 15, 2005