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How Civil Lawsuits Work: Before the Trial

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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.

BEGINNINGS OF THE CASE

The Accident

Mary Jones is an 18 year old senior at Druid Valley High School in DeKalb County, Georgia. Mary is an excellent student. She also works part-time at McDougal's drive-in restaurant. It is a few blocks from her home. On the night of May 7, Mary leaves work at 11 p.m. She decides to walk home. On the way home, she begins to worry about a big test she has the next day. Mary stops at the traffic light on Druid Avenue. As soon as the light turns green, Mary begins to cross the street.

A car approaches to Mary's left, coming fast, without lights. When the driver notices Mary, he slams on his brakes. The car skids into Mary. Its front bumper hits her at knee-level. She is knocked to the pavement. The car finally skids to a stop. The driver gets out to see how Mary is.

The 23 year old driver of the car, John Smith, has had a terrible evening. He has been worrying about his job. He has just had a fight with his girlfriend. And now-this!

There is a witness to the accident. At the time of the collision, Bill Hawkeye is walking his dog. He is on the sidewalk across the street from where Mary is hit. He immediately finds a phone and calls the police. The police arrive with an emergency medical service vehicle in about five minutes. Mary is taken to a local hospital.

Meanwhile, the police question John. After the investigation, they charge John with speeding, operating his car at night without lights, and failure to obey a traffic signal.

At the hospital, Mary is found to have a badly broken leg and assorted cuts and abrasions. The leg injury keeps her in the hospital for four weeks. Mary's hospital stay and medical care cost over $20,000.

Soon after the accident, John appears in the local traffic court. John pleads guilty to the charges. The traffic court judge imposes a fine and suspends John's driver's license.

The Claim

While in the hospital, Mary is contacted by Joe Hartness. Mr. Hartness is an insurance adjuster for John's auto insurance company, Peach State. As an injured pedestrian, Mary is entitled to receive payment for certain "economic losses" from John's insurance policy. The company pays Mary's physicians and the hospital bill.

After a time, Mary returns to school, but she continues to feel considerable pain in her left leg, particularly in the knee. It makes it impossible for her to go back to work. She begins to worry about keeping up with school and about her future. She loses weight and becomes extremely nervous.

Mary contacts Mr. Hartness, the Peach State insurance adjuster, and tells him of her continuing problems. She asks whether she is entitled to any additional benefits under John's automobile insurance coverage.

Mr. Hartness tells her that Peach State has paid benefits on her behalf under its medical payments coverage. What she is asking for now, he says, are general damages for "pain and suffering." He says his company will not pay such damages to Mary unless required to do so as the result of a lawsuit.

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

Mary talks to a lawyer, Fred Barr, about her case. Mr. Barr tells Mary that she is entitled to seek general and special damages from the person responsible for her injuries (John). A lawsuit can be initiated if necessary (see the table above for situations in which a lawyer may be needed).

Mr. Barr explains that general damages in a personal injury action may be physical and mental pain and inability to work. Special damages are those damages that can be calculated as a result of a particular loss. For example, the wages Mary lost from work while she was in the hospital could be added and awarded as special damages.

After being retained by Mary, Mr. Barr begins to investigate the case and the surrounding circumstances. He takes written statements from the investigating police officers and the sole witness (Mr. Hawkeye). He obtains a copy of the accident report filed by the investigating officers. He also gets copies of Mary's hospital records, medical bills, and prescription receipts. From Mary's part-time employer he requests proof of her income losses during her hospitalization and recovery.

Attempt to Settle Out of Court

Mr. Barr contacts Mr. Hartness, the insurance adjuster. Mr. Barr wants to settle Mary's claim out of court, if possible. Mr. Hartness agrees to meet with Mr. Barr.

After discussing the facts of the case, the following exchange takes place.

Mr. Barr: My client would be willing to accept $75,000 in settlement.

Mr. Hartness: Based upon my company's evaluation of the case, we will offer $40,000. This is, I might add, our top offer.

Mr. Barr: I'm sorry, I can't recommend that my client accept $40,000, although I will, of course, pass your offer along to my client. I believe that a jury would return a verdict of more than $75,000.

Unfortunately, Mr. Barr and Mr. Hartness are not able to settle Mary's case. (Neither side may offer evidence at the trial of these settlement negotiations.) Mr. Barr advises Mary to file a civil suit for damages against John. In this case, Mary Jones will be the plaintiff; John Smith, the defendant.

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).

Under Georgia law, a civil lawsuit for damages in which personal injury is involved must be brought in superior or state court. Further, Georgia law provides that the proper place of trial in a case like Mary's is the county in which the defendant resides when the lawsuit is filed. The courts in this county will have personal jurisdiction. Mr. Barr learns that John is a resident of DeKalb County, Georgia, so Mary's case is filed in the Superior Court of DeKalb County.

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.

It says that Mary's injuries and damages were caused by and through the negligence of John. To file Mary's complaint, Mr. Barr delivers it to the clerk of the Superior Court of DeKalb County (see the table below for descriptions of professionals involved in court proceedings). The clerk then assigns the case a number. This case will be number 81999.

Professionals Involved in Court Proceedings

Clerks of CourtClerks 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 MarshalsSheriffs 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.
LawyersLawyers 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.
BailiffsBailiffs help judges keep order in the court. They usher jury members in and out of the jury box and witnesses to the stand.
Court ReportersCourt 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. In Mary's case, when the sheriff's deputy first went to John's home, John was not there. The deputy returned several days later, after working hours, but John slipped out the back door. John did not want to be involved in a lawsuit. The next day, the deputy arrived as John was leaving for work and served him with the summons. (John should not intentionally avoid being served with the complaint. It is against the law to do so, and there could be serious legal consequences.)

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.

As soon as John is served the summons, he contacts Mr. Hartness, his insurance adjuster. In addition to medical payment coverage, John also has liability and collision coverage with Peach State Automobile Insurance Company. Mr. Hartness refers John's case to an attorney, Sally Bright. She will represent him in the trial.
Ms. Bright prepares an answer to the plaintiff's complaint. The answer agrees that the court has the jurisdiction to hear the case. It denies that John was negligent. It also denies that any injury to the plaintiff was directly caused by an act or failure to act on the defendant's part. No counterclaim is made.

Because the defendant denies the allegation of negligence, this matter is left for the plaintiff to prove. The plaintiff will also have to prove that John's negligence caused her injuries.

Sometimes a judge in a civil case can decide the questions of fact and law solely on the basis of the pleadings filed with the court. This decision is called judgment on the pleadings, and it is made in cases in which there is no real controversy. Suppose in his answer John had admitted to negligence and had agreed that his negligence caused Mary's injuries. Suppose he had agreed to the damages asked. Then there would be no real controversy. However, in the case of Jones v. Smith, the controversy is clear. The case will come to court.

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. Mr. Barr knows that he will have to present evidence to prove his client's claims. Ms. Bright knows she will have to discredit his evidence.

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.

In the case of Jones v. Smith, Ms. Bright, the defendant's attorney, begins the discovery process. She serves (mails) interrogatories to Mr. Barr. Questions in a case like this usually relate to a party's medical history, previous accidents and hospitalization, circumstances of the accident, identity of witnesses, medical expenses, and wage loss. One of the interrogatories that Ms. Bright sends to Mr. Barr follows:

What are the names and addresses of all practitioners of the healing arts (physicians, chiropractors, osteopaths, etc.) who have examined or rendered treatment to plaintiff from the date of the incident through and including the present time? Please include in your answer the dates these doctors were seen, the reason for such visit, and the amount charged.

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.

In the case of Jones v. Smith, both attorneys use this procedure. Ms Bright requests copies of medical bills. Mr. Barr requests a copy of John's insurance policy.

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.

In a personal injury case like Jones v. Smith, Mary's attorney takes the depositions of all the physicians who treated her. This process can be expensive. A rate of $300 per hour is not unusual for physicians giving depositions. Additionally, each side pays for a copy of the deposition, which is also costly.

Mr. Barr asks the physicians about their diagnoses and treatments. An excerpt of the deposition of one physician, Dr. Henry, follows.

Mr. Barr: Dr. Henry, did you supervise Ms. Jones's case while she was in the hospital?
Dr. Henry: Yes, she was my patient.
Mr. Barr: Do you know when she was discharged from the hospital?

After Dr. Henry gives the date, Ms. Bright cross-examines him.

Ms. Bright: Doctor, before the plaintiff was discharged from the hospital, didn't you ad
vise her to follow up with treatment in your office?
Dr. Henry: Yes, that's correct. I did see Ms. Jones, the plaintiff, as you refer to her, as a patient in my office after her discharge from the hospital.
Ms. Bright: And you have not had occasion to see her or treat her, as a patient, in the last several months, have you?
Dr. Henry: I don't know what you mean by "several months." I did see her about four months ago. I told her to call for an appointment if she experienced further problems.

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