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Chapter 9: Steps in a Civil Case

Party A has been injured by the wrongful conduct of Party B. Party A wants to file a
lawsuit against Party B. How does Party A do this? And what happens with the civil case
thereafter? Here we will focus on how a civil case between Party A (a plaintiff) and Party
B (a defendant) would progress in the US district courts. Civil cases in the district courts
are governed by the Federal Rules of Civil Procedure (FRCP), which went through
significant amendments in 2007. Nearly all states have similar rules in their state court
systems. According to the FRCP, the parties and court should administer and construe
the FRCP to secure the just, speedy, and inexpensive determination of a civil case.[1]

You may access the FRCP and review its specific rules here.

In analyzing the steps of a civil case, we will assume that both parties are represented by
attorneys. Therefore, when we refer to a party, we will not also mention its attorney
because we are assuming that a party is acting through its attorney. The main steps in a
civil case in the district courts are pleadings, motions, scheduling conference and
order, discovery, pretrial conference and order, trial, and appeal.

9.1 Pleadings

Pleadings are documents containing factual allegations that parties file with the court
and serve on the other parties. The principal pleadings are the complaint, answer,
and counterclaim, and crossclaim.[2]

A plaintiff commences a civil case by filing a complaint with the court. A complaint is a
short and plain statement of a plaintiffs claims with supporting facts showing that the
plaintiff is entitled to judgment against the defendant. Each of the plaintiffs allegations
must be simple, concise, and direct. The court does not require any technical form and
there are no magic words that a plaintiff must use; in fact, a court will construe a
complaint (and the other pleadings) so as to do justice. A plaintiff must state its
allegations in numbered paragraphs, each of which should be limited to a single set of

If a plaintiff files a case as a class action (see chapter 8 at 8.1), the court must make a
decision to certify the class before the suit is permitted to move forward.[3] A class
action is required to have four specific characteristics: (1) numerosity, a class large
enough that it makes individual lawsuits impractical; (2) commonality, or one or more
factual or legal claims common to all members of the class and predominating over
individual issues; (3) typicality of the claims or defenses raised as representative of
those for the entire class of plaintiffs or defendants; and (4) adequacy, the ability of the
parties bringing suit as representatives of the class to adequately represent and protect
the interests of other class members. If the court certifies the class, the persons or
organizations (i.e., other potential plaintiffs) that would fall within the class are
generally given notice and a period of time to opt out, so as to permit them to pursue
their own cases individually. Those who do not opt out are included in the class and are
subject to the courts judgment (or a settlement approved by the court) that arises out of
the litigation.

A plaintiff serves the complaint with a summons on the defendant.[4] A summons is a

notice of the lawsuit; it requires the defendant to answer the complaint. The plaintiff
typically hires a private process server to serve the complaint and summons on a
defendant who resides in the state. Depending on the state, service may be made either
on the in-state defendant personally or on another adult person in the defendants
household. Service on a business organization is made on its registered agent located in
the state. Service of the summons on an in-state defendant gives the court personal
jurisdiction over the defendant. (We discussed a type of jurisdictionsubject matter
jurisdictionin chapter 6 at 6.1; you will recall that subject matter jurisdiction is a
restriction on the types of cases that a court can hear and decide.) Personal
jurisdiction is another type of jurisdiction; it is the power of a court over a particular
defendant. A court must have both personal and subject matter jurisdiction to hear the

But what about a defendant who resides outside of the state? How does a plaintiff serve
an out-of-state defendant? The answer is by the long-arm statute that exists in almost
every state.[5] Under a state long-arm statute a court may exercise personal jurisdiction
over a defendant if the defendant transacted business or committed a wrong within the
forum state (e.g., causing an automobile accident or selling a defective product in the
forum state). State long-arm statutes are intended to be very broad, extending personal
jurisdiction to its constitutional limits. This means that a defendant must have
minimum contacts with the forum state such that summoning a defendant into court
does not offend traditional notions of fair play and substantial justice.[6] In todays
high-tech world, a business that markets to customers and takes orders from an
interactive website is probably transacting business in every state and therefore can be
sued in any state.

A defendant must file and serve an answer within 20 days after being served with a
complaint and summons. In the answer a defendant admits or denies each of the
plaintiffs claims in the complaint. A defendant must fairly respond to each of
plaintiffs allegations. Therefore, if a defendant is not able to admit or deny a particular
allegation, it may plead lack of knowledge or information sufficient to form a belief
about the truth of the allegation. In addition, when responding to a plaintiffs claims, a
defendant must state in short and plain terms its defenses to each claim asserted
against it. A defendant must state its allegations and denials in numbered paragraphs,
each of which should be limited to a single set of circumstances. Normally a defendant
matches its numbered paragraphs to those of the plaintiff.

A defendant needs to be careful when preparing its answer because there are certain
defenses that the law considers affirmative defenses. A defendant must include any
applicable affirmative defenses with its answer; otherwise, the court will deem them
waived. One of the more commonly-known affirmative defenses is the statute of
limitations, which we discussed briefly in chapter 4 at 4.1. You will recall that it is a
statute that creates a time limit for bringing a case. If a defendant does not raise the
statute of limitations in its initial pleading, the court will deem the defense waived.

A defendant with a claim against a plaintiff may file a counterclaim with its answer. A
counterclaim (sometimes referred to as a countersuit) is a claim in opposition to the
plaintiffs claim (or a set-off to the plaintiffs claim). A counterclaim typically relates to
the same transaction or occurrence as the complaint, although that is not required. If a
defendant files a counterclaim, the plaintiff must file an answer to it. In answering a
complaint, a defendant might also file a crossclaim (asserting claims against a co-
defendant) or a third party complaint (bringing in an outside party who was not named
as a defendant in the original complaint.

9.2 Motions

A motion is a request for a court order. A party making a motion must state with
particularity the grounds for seeking the order and the relief sought. In addition, a
motion must be in writing unless made during a hearing or trial. A party may make a
motion anytime, unless specifically prohibited by the court.[7]

Some motions may occur early in a civil case, even during the pleadings. For example, a
defendant may assert certain defenses by motion instead of including them in its
answer. There are some defenses that a defendant must either assert by motion prior to
filing an answer or include in its answerotherwise the court will deem them waived.
One such defense is lack of personal jurisdiction. Therefore, if a defendant does not
believe that it has transacted business or caused a wrong in the forum state, it may
prefer to file a motion to dismiss a complaint for lack of personal jurisdiction, rather
than filing an answer.[8] If the court rules that it does not have personal jurisdiction
over the defendant, it will dismiss the case. If, however, the court rules that it does have
personal jurisdiction, it will order the defendant to file an answer to the complaint. In
addition, instead of including any applicable affirmative defenses with an answer, some
parties prefer to assert them in a motion to dismiss for failure to state a claim upon
which relief can be grantedcommonly called a 12(b)(6) motion, which many courts
allow for asserting affirmative defenses.[9]

After the pleadings have closed, a party may file a motion for judgment on the pleadings.
[10] In this motion, a party requests that the court determine whether it is entitled to
judgment prior to trial. The court will rule based solely on the pleadings and will
construe the pleadings in a light most favorable to the opponent of the motion (i.e., the
nonmoving party). The court will grant the motion only if there are no genuine issues
regarding the material facts of the case. This means that the parties do not disagree
about the significant facts in the case; the only disagreement is regarding the application
of the law to the facts. If a party presents matters outside the pleadings (such as sworn
declarations called affidavits), the court will treat the motion as a motion for summary
judgment and give the other parties a reasonable opportunity to present pertinent
material in response.[11] The standard for a motion for summary judgment is
substantially similar to a motion for judgment on the pleadings. (That is, a court will
grant the motion only if there are no genuine issues regarding the material facts of the
case.) A motion for summary judgment, however, is more typically brought after
discovery has closed (see 9.4).

9.3 Scheduling Conference and Order

Courts differ in their handling of scheduling conferences and orders; but the general
rule is that a court will enter a scheduling order as soon as practicable. After the
pleadings have closed, the court will have a scheduling conference with the parties. The
conference is usually in person, but may also be by telephone. Prior to the conference,
the parties normally confer to discuss pretrial management issues, including the
possibility of settlement and the form of a proposed scheduling order. After the
conference, the court will enter a scheduling order that guides the remainder of the case,
including the extent and timing of discovery and the dates of the pretrial conference and

9.4 Discovery

In the United States, we do not have trial by ambush. Parties do not file and serve
pleadings and then go immediately to trial. Instead, we have discovery rules that allow a
party to take discovery, or learn about the other partys case well prior to trial and to
prevent surprise. The discovery rules generally require mutual disclosure of all
nonprivileged testimony, documents, and other evidence that is relevant to a partys
claims or defenses. Nonprivileged means not subject to the attorney-client privilege
(which we learned about in chapter 8 at 8.3) or the work product doctrine (which
prevents the disclosure of documents prepared in anticipation of litigation and that we
will discuss briefly in chapter 10 at 10.5). By using various discovery tools, a party
obtains facts and information from the other party and witnesses to prepare for trial.
The main discovery tools are depositions, interrogatories, requests to produce
documents, and requests for admissions.[13]

Depositions are oral questions to the other party or a nonparty witnesswho is referred
to as the deponent. (Depositions may also be taken by written questions, but this is not a
commonly used discovery tool.) In a deposition, the deponent answers questions from
the party who noticed the deposition. The deponent gives the testimony under oath
and the questioning proceeds much as it would at trial. An officer (usually a private
stenographer, but sometimes a court reporter) records the testimony for the parties
future use in discovery or at trial. Depositions allow the parties to learn or confirm facts
and to lock-in a witnesss testimony for trial, because a witness cannot give testimony
at trial that contradicts his deposition testimony. Interrogatories are written questions
to the other party. They are not available for questioning a nonparty witness. After being
served with interrogatories, a party must answer (or object to) each interrogatory
separately and fully in writing under oath. Requests to produce documents are written
requests to the other party to produce documents, including electronically stored
information, and tangible things. As with the questions asked in depositions and
interrogatories, the documents sought must be relevant to a partys claims or defenses.
Documents produced may become trial exhibits. Requests for admissions are written
requests to the other party to admit the truth of facts, the application of law to fact,
opinions, or the genuineness of any described documents. These requests are best used
to narrow the factual issues for trial. After discovery is completed, a party may file
a motion for summary judgment, which we discussed previously at 9.2.

9.5 Pretrial Conference and Order

As with scheduling conferences and orders, courts differ in their handling of pretrial
conferences and orders; but generally, after discovery is completed, courts will hold
a pretrial conference to formulate a trial plan, including a plan regarding the admission
of evidence (e.g., testimony and exhibits). The conference is held as close to the start of
trial as is reasonable, and must be attended by at least one attorney who will conduct the
trial for each party. Prior to the conference, the parties meet and confer to premark and
exchange all trial exhibits and to discuss the contents of a proposed pretrial order,
including the names of all witnesses a party intends to call to testify at trial. After the
conference, the court will enter a pretrial order that recites the action taken at the
conference and controls the course of the trial. The court will modify the pretrial order
only to prevent manifest injustice.[14]

9.6 Trial

Most of the parties energy, money, and time are spent during the previous steps. But
the trial is where the action happensafter all, the trial is what we see on television
shows! (No one wants to seeor would watcha television show about pleadings,
discovery, and conferences with the court.) A trial consists of jury selection, opening
statement, plaintiffs case presentation, defendants case presentation, plaintiffs
rebuttal case, closing argument, jury instructions, jury deliberations, verdict,
and judgment.[15]

Jury selection is the process of choosing a group of persons to decide factual issues. (We
are assuming that either party has elected properly to have a jury trial.) States and
courts differ on how potential jurors are called for jury duty. One way is through the
motor vehicle records. In any event, on any given trial day, the court forms jury pools
to be available for trials that occur that day. The potential jurors are brought to the
gallery of the courtroom and are called randomly one at a time to fill the jury seats.
Juries may differ in the number of jurors that hear a case depending on the state, courts
rules, or the type of case. But juries of either six or twelve jurors are common. Each
party, with the judges permission, is allowed to strike (i.e., dismiss) potential jurors
for reasons such as bias; these are called challenges for cause. Each party also is allowed
to strike potential jurors for any reason or no reason at all; these are called preemptory
challenges and are generally limited to a certain number per party. Courts have ruled,
however, that preemptory challenges may not be used to dismiss potential jurors
because of their race or sex.

After the jury is selected, each party has the opportunity to give an opening statement,
which is a preview for the judge and jury of what the evidence will show. Strictly
speaking, the opening statement is not a time for arguing a case, although attorneys
differ on this point or believe that the distinction between a statement and an argument
is a grey area. Also, opening statements vary in length and style. In addition, some
courts and judges restrict attorneys from standing anywhere but behind a lectern; but
other courts and judges are more lax and allow attorneys to walk around the courtroom.
When giving opening statements, the plaintiff goes first, then the defendant. A
defendant often mentions the burden of proof (see chapter 4 at 4.2) that a plaintiff must
meet to prove its case. Either party may waive an opening statement if its wishes; and
occasionally a party will do so for tactical reasons. Both parties typically waive their
opening statements in bench trials because opening statements best use is for juries,
not judges.

When the defendant finishes its opening statement, the judge will tell the plaintiff to
call its first witness. Now begins the plaintiffs case presentation. A plaintiff presents
its case to the court by submitting evidence that is relevant to its claims. A plaintiff
submits evidence primarily in the form of testimony and documents. The parties may
agree that documents are automatically admitted into evidence; otherwise, a plaintiff
may submit documents through witnesses who either prepared the documents or are
the custodian of the documents. The documents admitted into evidence are called

For each witness that a plaintiff calls to testify, questioning is generally conducted in the
following order. First, the party calling the witness conducts direct examination, asking
the questions for which the witness was called to testify. Next, the opposing party or
parties conduct a cross-examination, which is limited in scope to the subject matter of
the direct examination and to issues affecting the credibility of the witness or their
testimony.[16] If the cross-examination results in answers that the party calling the
witness believes require clarification or further exploration, that party may conduct a re-
direct as to those answers, after which the opposing parties may again cross-examine,
or re-cross, the witness. The court may, at its discretion, ask questions of a witness or
even call witnesses not called by any party to the litigation, if it determines that the
testimony is required to fully and fairly adjudicate the case.[17] As a general rule, a
plaintiff is not permitted to ask leading questions during direct examination, such as,
Isnt it true that . . . . During cross examination, however, a defendant may ask leading
questions of the witness. After the plaintiff has called all of its witnesses and submitted
all of its other evidence, the plaintiff will rest its case.

If a defendant does not believe that a plaintiff has met its burden of proof, the defendant
may file a motion for directed verdict (which is often an oral motion). In a motion for
directed verdict, a defendant requests that the court rule that the plaintiff has failed to
prove a prima facie case and dismiss the case without sending it to the jury. The court
will view the evidence in a light most favorable to the plaintiff, the nonmoving party. If
the court agrees with the defendant, it will dismiss the case. If not, the trial continues,
and the defendant must present its case.

Defendants case presentation is similar in form and practice to the plaintiffs, just in
reverse. The judge will tell the defendant to call its first witness. As with the plaintiff, a
defendant presents its case to the court by submitting evidence that is relevant to its
defenses (and its claims if the defendant filed any counterclaims). But here, the
defendant conducts the direct examination of each witness, and the plaintiff will have an
opportunity to conduct a cross examination. After the defendant has called all of its
witnesses and submitted all of its other evidence, the defendant will rest its case.

Sometimes a plaintiff may want to introduce additional evidence to rebut a defendants

defenses (or any counterclaims). This is called a plaintiffs rebuttal case; and it is usually
very short and limited in scope. Judges do not allow a plaintiff simply to repeat or
rehash its initial case presentation.

Closing argument is where each party summarizes and draws inferences from the facts,
links the facts to the law, and argues to the jury why it should grant a verdict in such
partys favor. A party may refer to testimony, documents, or any other evidence that was
admitted. As with the opening statement, a plaintiff goes first, then the defendant. Here,
however, a plaintiff may also be permitted a short rebuttal argument.

The next step is giving the jury instructions. A jury is the fact-finder, but its needs to
know what the law is so that it may apply the law to the facts. Jury instructions are
summaries of the law that a judge reads and then gives to the jury to aid in
deliberations. Giving the jury instructions is sometimes called charging the jury.

After being charged, a court official will take the jury to a conference room to consider
the case; this is called jury deliberations. The jury will debate, discuss, and mull over the
testimony, exhibits, and jury instructions until it reaches a verdict. Verdict derives from
the Latin veredictum, which means to say the truth. Some states and courts require
unanimous verdicts; others require only majority verdicts. If the jury is unable to reach
a verdict after a period of time, the judge may reluctantly declare a hung jury. In this
instance, the parties will need to retry the case at a later date. Following a verdict, the
judge will entertain any motions challenging the verdictsuch as a motion for a new
trial or a motion for judgment notwithstanding the verdict (commonly referred to as a
JNOV). Judges rarely grant these motions because doing so results in the overturn of
jury verdicts. Subsequent to any post-trial motions (assuming that the judge denies
them), the judge will enter the courts judgment on the verdict. The trial is now finished.

9.7 Appeal

The losing party in trial may appeal the judgment. But the party does not get a re-do;
that is, it does not get to re-try the case on appeal. (The exception is a de novo appeal,
which we discussed in chapter 7 at 7.1.) What happens if a party forgot to call a witness
or submit a document into evidence? The answer is too badgenerally, the trial record
is frozen at the close of the trial and the party will be precluded from introducing the
evidence on appeal. Moreover, the appellate court will review the trial record only for
prejudicial legal error, not factual error. This means that the appellate court will decide
whether the trial judge (who decided the legal issues) made any erroneous decisions that
affected the outcome of the jury verdict or court judgment. For example, did the trial
judge err in allowing or excluding evidence, giving improper jury instructions, or
deciding a motion to dismiss or for summary judgment? An appellate court may make
one of three rulings regarding the trial courts judgmentit may affirm, reverse,
or reverse and remand for a new trial.

9.8 Alternative Dispute Resolution

Alternative Dispute Resolution (ADR) is the generic term for methods for resolving
parties disputes other than by trial of a lawsuit. Three of the more common methods of
ADR are negotiation, mediation, and arbitration.

Negotiation is a method in which parties attempt to resolve their disputes without the
help of neutral third party. Negotiation is usually informal; but negotiations may be
conducted through attorneys representing the parties. Also, negotiation is voluntary and
may take place at any time in a parties dispute, including during or after a lawsuit.
(Some cases actually settle through negotiation after a jury verdict or court judgment.)
In addition, negotiation may be confidential depending on the parties wishes.

Mediation is a method in which parties attempt to resolve their disputes with the help of
a neutral third party called a mediator. The mediator acts as a go-between to assist the
parties in negotiating a settlement. Mediation is usually informal; and sometimes it may
be conducted through attorneys representing the parties. Also, mediation is generally
voluntary, although some courts may require parties to mediate their disputes prior to
filing or during a lawsuit. In addition, parties may agree to mediation in contracts (see
chapter 18). Further, as with negotiation, mediation may be confidential, depending on
the parties desires.

Arbitration is a method in which parties resolve their disputes by submitting them to a

neutral third partycalled an arbitratorwho renders a decision. An arbitration may
utilize more than one arbitrator, in which case the arbitrators are called a panel (e.g., a
panel of three arbitrators). Parties typically agree to arbitration in contracts. And
arbitration may be binding or non-binding. Binding means that the arbitrators
decision is final; a party may not appeal the decision to a court absent fraud or other
rare circumstances. Non-binding means that either party may disregard the arbitrators
decision and file a lawsuit.

Arbitration is more formal than mediation, but not as formal as a trial. Arbitration
hearings, however, proceed similarly to trials. That is, parties call witnesses and submit
documents as exhibits for the arbitrators consideration. Usually, however, the rules of
evidence used in trials are not as strictly followed in arbitration hearings. We will
discuss the rules of evidence in chapter 10. At the close of a hearing, the arbitrator will
render a decision (or reserve decision and later send a written decision to the parties).
The prevailing party may then take the arbitrators decision and register it as court
order with the appropriate court. This is necessary to enforce the arbitrators decision
because arbitrators are not judges, and therefore have no power to enforce their
decisions. Most arbitration (and some types of mediation) is conducted according to
rules established by the American Arbitration Association (which you may have seen
referred to, somewhat confusingly, as AAA).