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A lawsuit may involve dispute resolution of private law issues between individuals,
business entities or non-profit organizations. A lawsuit may also enable the state
to be treated as if it were a private party in a civil case, as plaintiff, or defendant
regarding an injury, or may provide the state with a civil cause of action to enforce
certain laws.
The conduct of a lawsuit is called litigation. The plaintiffs and defendants are
called litigants and the attorneys representing them are called litigators.[2] The
term litigation may also refer to a criminal procedure.
Though the majority of lawsuits are settled before ever reaching trial,[3] they can
still be very complicated to litigate. This is particularly true in federal systems,
where a federal court may be applying state law (e.g. the Erie doctrine, for
example in the United States), or vice versa. It is also possible for one state to
apply the law of another in cases where additionally it may not be clear which
level (or location) of court actually has jurisdiction over the claim or personal
jurisdiction over the defendant, or whether the plaintiff has standing to participate
in a lawsuit. About 98 percent of civil cases in the United States federal courts are
resolved without a trial. Domestic courts are also often called upon to apply
foreign law, or to act upon foreign defendants, over whom they may not even have
the ability to even enforce a judgment if the defendant's assets are theoretically
outside their reach.
Cases such as this illustrate the need for more comprehensive information than
mere internet searches when researching legal decisions. While online searches
are appropriate for many legal situations, they are not appropriate for all.
Procedure
Pleading
It is likewise important that the plaintiff select the proper venue with the proper
jurisdiction to bring the lawsuit. The clerk of a court signs or stamps the court
seal upon a summons or citation, which is then served by the plaintiff upon the
defendant, together with a copy of the complaint. This service notifies the
defendants that they are being sued and that they are limited in the amount of
time of a reply. The service provides a copy of the complaint in order to notify the
defendants of the nature of the claims. Once the defendants are served with the
summons and complaint, they are subject to a time limit to file an answer stating
their defenses to the plaintiff's claims, which includes any challenges to the
court's jurisdiction, and any counterclaims they wish to assert against the plaintiff.
In a handful of jurisdictions (notably, the U.S. state of New York) a lawsuit begins
when one or more plaintiffs properly serve a summons and complaint upon the
defendants. In such jurisdictions, nothing must be filed with the court until a
dispute develops requiring actual judicial intervention.
If the defendant chooses to file an answer within the time permitted, the answer
must address each of the plaintiffs' allegations. The defendant has three choices
to make, which include either admitting to the allegation, denying it, or pleading a
lack of sufficient information to admit or deny the allegation. Some jurisdictions,
like California and Florida, still authorize general denials of each and every
allegation in the complaint. At the time the defendant files an answer, the
defendant also raises all "affirmative" defenses. The defendant may also assert
counterclaims for damages or equitable relief against the plaintiff. For example, in
the case of "compulsory counterclaims," the defendant must assert some form of
counterclaim or risk having the counterclaim barred in any subsequent
proceeding. In the case of making a counterclaim, the defendant is making a
motion directed towards the plaintiff claiming that he/she was injured in some
way or would like to sue the plaintiff. The plaintiff in this example would then
receive some amount of time to make a reply to this counterclaim. The defendant
may also file a "third party complaint", which is the defendant's privilege to join
another party or parties in the action with the belief that those parties may be
liable for some or all of the plaintiff's claimed damages. An answer from the
defendant in response to the claims made against him/her, can also include
additional facts or a so-called "excuse" for the plead. Filing an answer "joins the
cause" and moves the case into the pre-trial phase.
Instead of filing an answer within the time specified in the summons, the
defendant can choose to dispute the validity of the complaint by filing a demurrer
(in the handful of jurisdictions where that is still allowed) or one or more "pre-
answer motions," such as a motion to dismiss. It is important that the motion be
filed within the time period specified in the summons for an answer. If all of the
above motions are denied by the trial court, and the defendant loses on all
appeals from such denials (if that option is available), and finally the defendant
must file an answer.
Usually the pleadings are drafted by a lawyer, but in many courts persons can file
papers and represent themselves, which is called appearing pro se. Many courts
have a pro se clerk to assist people without lawyers.
Pretrial discovery
There is also the ability of one to make an under oath statement during the
pretrial, also known as a deposition. The deposition can be used in the trial or just
in the pretrial, but this allows for both parties to be aware of the arguments or
claims that are going to be made by the other party in the trial. It is notable that
the depositions can be written or oral.[8]
At the close of discovery, the parties may either pick a jury and then have a trial by
jury or the case may proceed as a bench trial. A bench trial is only heard by the
judge if the parties waive a jury trial or if the right to a jury trial is not guaranteed
for their particular claim (such as those under equity in the U.S.) or for any
lawsuits within their jurisdiction.
Resolution
Usually, lawsuits end in a settlement, with an empirical analysis finding that less
than 2% of cases end with a trial.[9] It is sometimes said that 95% of cases end in
settlement; few jurisdictions report settlements, but empirical analysis suggests
that the settlement rate varies by type of lawsuit, with torts settling around 90% of
the time and overall civil cases settling 50% of the time; other cases end due to
default judgment, lack of a valid claim, and other reasons.[9]
At trial, each person presents witnesses and the evidence collected is recorded.
After this occurs, the judge or jury renders their decision. Generally speaking, the
plaintiff has the burden of proof in making his claims, however, the defendant may
have the burden of proof on other issues, such as affirmative defenses. The
attorneys are held responsible in devising a trial strategy that ensures they meet
the necessary elements of their case or (when the opposing party has the burden
of proof) to ensure the opponent will not be able to meet his or her burden.
There are numerous motions that either party can file throughout the lawsuit to
terminate it "prematurely"—before submission to the judge or jury for final
consideration. These motions attempt to persuade the judge, through legal
argument and sometimes accompanying evidence, that there is no reasonable
way that the other party could legally win and therefore there is no sense in
continuing with the trial. Motions for summary judgment, for example, can usually
be brought before, after, or during the actual presentation of the case. Motions
can also be brought after the close of a trial to undo a jury verdict contrary to law
or against the weight of the evidence, or to convince the judge to change the
decision or grant a new trial.
Also, at any time during this process from the filing of the complaint to the final
judgment, the plaintiff may withdraw the complaint and end the whole matter, or
the defendant may agree to a settlement. If the case settles, the parties might
choose to enter into a stipulated judgment with the settlement agreement
attached, or the plaintiff may simply file a voluntary dismissal, so that the
settlement agreement is never entered into the court record.
The decisions that the jury makes are not put into effect until the judge makes a
judgment, which is the approval to have this trial information be filed in public
records. In a civil case, the judge is allowed at this time to make changes to the
verdict that the jury came up with by either adding on or reducing the punishment.
In criminal cases the situation is a little different, because in this case the judge
does not have the authority to change the jury decision.
Appeal
After a final decision has been made, either party or both may appeal from the
judgment if they believe there had been a procedural error made by the trial court.
It isn't necessarily an automatic appeal after every judgment has been made,
however, if there is a legal basis for the appeal, then one has the right to do so.
The prevailing party may appeal, for example, if they wanted a larger award than
was granted. The appellate court (which may be structured as an intermediate
appellate court) and/or a higher court then affirms the judgment, declines to hear
it (which effectively affirms it), reverses—or vacates and remands. This process
would then involve sending the lawsuit back to the lower trial court to address an
unresolved issue, or possibly request for a whole new trial. Some lawsuits go up
and down the appeals ladder repeatedly before final resolution. Civil suit
The appeal is a review for errors rather than a new trial, so the appellate court will
defer to the discretion of the original trial court if an error is not clear. The initial
step in making an appeal consists of the petitioner filing a notice of appeal and
then sending in a brief, a written document stating reason for appeal, to the court.
Decisions of the court can be made immediately after just reading the written
brief, or there can also be oral arguments made by both parties involved in the
appeal. The appellate court then makes the decision about what errors were
made when the law was looked at more closely in the lower court. There were no
errors made, the case would then end, but if the decision was reversed, the
appellate court would then send the case back down to the lower court level.
There, a new trial will be held and new information taken into account.
Some jurisdictions, notably the United States, but prevalent in many other
countries, prevent parties from relitigating the facts on appeal, due to a history of
unscrupulous lawyers deliberately reserving such issues in order to ambush each
other in the appellate courts (the "invited error" problem). The idea is that it is
more efficient to force all parties to fully litigate all relevant issues of fact before
the trial court. Thus, a party who does not raise an issue of fact at the trial court
level generally cannot raise it on appeal.
When the lawsuit is finally resolved, or the allotted time to appeal has expired, the
matter is res judicata, meaning the plaintiff may not bring another action based on
the same claim again. In addition, other parties who later attempt to re-litigate a
matter already ruled on in a previous lawsuit will be estopped from doing so.
Enforcement
When a final judgment is entered, the plaintiff is usually barred under the doctrine
of res judicata from relitigating any of the issues, even under different legal
theories. Judgments are typically a monetary award. If the defendant fails to pay,
the court has various powers to seize any of the defendant's assets located within
its jurisdiction, such as:
Writ of execution
Liens
Wage garnishment
If all assets are located elsewhere, the plaintiff must file another suit in the
appropriate court to seek enforcement of the other court's previous judgment.
This can be a difficult task when crossing from a court in one state or nation to
another, however, courts tend to grant each other respect when there is not a clear
legal rule to the contrary. A defendant who has no assets in any jurisdiction is said
to be "judgment-proof."[10] The term is generally a colloquialism to describe an
impecunious defendant.
Scholars in law, economics and management have studied why firms involved in a
dispute choose between private dispute resolution—such as negotiation,
mediation, and arbitration—and litigation.[11][12] The presence of prior relationships
between firms does not systematically decrease the use of lawsuits. In fact, the
likelihood of litigation is higher when firms have not developed joint relational
norms. In addition, firms are more likely to resort to a private dispute resolution
mechanism when they expect joint future exchanges.[13]
Etymology
During the 18th and 19th centuries, it was common for lawyers to speak of
bringing an "action" at law and a "suit" in equity. An example of that distinction
survives today in the codified text of the Third Enforcement Act. The fusion of
common law and equity in England in the Judicature Acts of 1873 and 1875 led to
the collapse of that distinction, so it became possible to speak of a "lawsuit." In
the United States, the Federal Rules of Civil Procedure (1938) abolished the
distinction between actions at law and suits in equity in federal practice, in favor
of a single form referred to as a "civil action."
In England and Wales the term "claim" is far more common; the person initiating
proceedings is called the claimant.
American terminology is slightly different, in that the term "claim" refers only to a
particular count or cause of action in a lawsuit. Americans also use "claim" to
describe a demand filed with an insurer or administrative agency. If the claim is
denied, then the claimant, policyholder, or applicant files a lawsuit with the courts
to seek review of that decision, and from that point forward participates in the
lawsuit as a plaintiff. In other words, the terms "claimant" and "plaintiff" carry
substantially different connotations of formality in American English, in that only
the latter risks an award of costs in favor of an adversary in a lawsuit.
In medieval times, both "action" and "suit" had the approximate meaning of some
kind of legal proceeding, but an action terminated when a judgment was rendered,
while a suit also included the execution of the judgment.
Financing
Particularly in the United States, plaintiffs and defendants who lack financial
resources for litigation or other attorney's fees may be able to obtain legal
financing. Legal financing companies can provide a cash advance to litigants in
return for a share of the ultimate settlement or award. If the case ultimately loses,
the litigant does not have to pay any of the money funded back. Legal financing is
different from a typical bank loan in that the legal financing company does not
look at credit history or employment history. Litigants do not have to repay the
cash advance with monthly payments, but do have to fill out an application so that
the legal financing company can review the merits of the case.
Legal financing can be a practical means for litigants to obtain financing while
they wait for a monetary settlement or an award in their personal injury, workers'
compensation, or civil rights lawsuit. Often, plaintiffs who were injured or forced
to leave their jobs still have mortgages, rent, medical expenses, or other bills to
pay. Other times, litigants may simply need money to pay for the costs of litigation
and attorneys' fees, and for this reason, many litigants turn to reputable legal
financing companies to apply for a cash advance to help pay for bills.
There was a study conducted in the Supreme Court Economic Review that shows
why litigation financing can be practical and beneficial to the overall court system
and lawsuits within the court. This study concluded that the new rules that were
set for litigation financing actually did produce more settlements. Under
conservative rules, there tended to be fewer settlements, however under the older
rules they tended to be larger on average.[14]
Legal financing can become an issue in some cases, varying from case to case
and person to person. It can be beneficial in many situations, however also
detrimental in others.
See also
Actio popularis
Civil law
Compensation culture
Divorce
Private prosecution
Restorative justice
Notes
References
1. Brian A. Garner, ed. (2014). "Suit". Black's Law Dictionary (10th ed.). West.
2. Abram, Lisa L. (2000). "Civil Litigation". The Official Guide to Legal Specialties (https://archive.
org/details/officialguidetol00abra/page/71) . Chicago: National Association for Law
Placement, Harcourt Legal & Professional Publications. p. 71 (https://archive.org/details/offic
ialguidetol00abra/page/71) . ISBN 978-0-15-900391-6.
4. "WILLIAM J. RALPH, JR., Complainant, v. LIND-WALDOCK & COMPANY and JEFFREY KUNST,
Respondents" (http://www.cftc.gov/ucm/groups/public/@lrdispositions/documents/legalplea
ding/idralph092100.pdf) (PDF). Cftc.gov. Retrieved 3 October 2017.
10. Dionne, Georges (1992). Foundations of Insurance Economics: Readings in Economics and
Finance. Springer. ISBN 0-7923-9204-3.
11. Bebchuk, Lucian (1984). "Litigation and settlement under imperfect information". RAND
Journal of Economics. 15 (3): 404–415. doi:10.2307/2555448 (https://doi.org/10.2307%2F25
55448) . JSTOR 2555448 (https://www.jstor.org/stable/2555448) .
12. Richman, Barak (2004). "Firms, courts, and reputation mechanisms: Toward a positive theory
of private ordering" (https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1928&cont
ext=faculty_scholarship) . Columbia Law Review. 104 (8): 2328–2368. doi:10.2307/4099361
(https://doi.org/10.2307%2F4099361) . JSTOR 4099361 (https://www.jstor.org/stable/409
9361) . S2CID 43455841 (https://api.semanticscholar.org/CorpusID:43455841) .
13. Lumineau, Fabrice; Oxley, Joanne E. (2012). "Let's Work It Out (or We'll See You in Court):
Litigation and Private Dispute Resolution in Vertical Exchange Relationships" (https://mpra.ub.
uni-muenchen.de/38361/1/MPRA_paper_38361.pdf) (PDF). Organization Science. 23 (3):
820–834. doi:10.1287/orsc.1110.0658 (https://doi.org/10.1287%2Forsc.1110.0658) .
ISSN 1047-7039 (https://www.worldcat.org/issn/1047-7039) . S2CID 14120119 (https://api.
semanticscholar.org/CorpusID:14120119) .
14. Inglis, Laura; McCabe, Kevin (2010). "The Effects of Litigation Financing Rules on Settlement
Rates". Supreme Court Economic Review. University of California, Santa Barbara. 18 (1): 135–
15. doi:10.1086/659984 (https://doi.org/10.1086%2F659984) . JSTOR 10.1086/659984 (htt
ps://www.jstor.org/stable/10.1086/659984) . S2CID 154317478 (https://api.semanticschola
r.org/CorpusID:154317478) .
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