3.6: Pretrial Procedures

Figure 3.1 Litigation Flowchart

Pleadings

In civil cases, litigation begins with the filing of a complaint by the plaintiff. The complaint is a legal document setting forth who the parties are, the facts of the case, and what laws the plaintiff claims defendant has violated. The complaint ends with a prayer for relief. The plaintiff may be seeking damages (money), specific performance in certain types of contract cases, or an injunction.

The complaint is filed with the clerk of the court where the lawsuit is to be heard. The clerk will issue a summons, which is an official notice that a lawsuit has been filed with the court and summons the defendant(s) to court to defend against it. To be effective, the defendant(s) must be served the summons and a copy of the complaint.

In certain types of cases, there may be a large number of plaintiffs injured by a defendant’s actions. This may happen in a product liability lawsuit where a product is purchased by many thousands of consumers, all of whom experience the same product failure. In these cases, several lead plaintiffs may attempt to form a class in a class action lawsuit against the defendant(s). Under federal civil procedure rules, class actions may be granted when:

1. There are so many plaintiffs that
2. It is impractical for them to file separate lawsuits;
3. There are questions of law or fact that are common to members of the class; and
4. The lead plaintiffs will fairly and adequately protect the interests of the class.

The defendant must file an answer to the complaint within a specified period of time, usually thirty days. The answer is a paragraph-by-paragraph response to the complaint, admitting certain allegations and denying others. The answer may admit, for example, noncontroversial claims by the plaintiff such as the defendant’s name, address, and the nature of the defendant’s relationship with the plaintiff. Each time the defendant denies a plaintiff’s claim in the complaint, that sets up a controversy or argument that must be litigated. The answer may also contain any affirmative defenses and counterclaims the defendant wishes to pursue. Taken together, the complaint and answer are known as the pleadings.

Discovery

After pleadings are filed, litigation moves into the discovery phase. Discovery is a process in which each side finds out information about the other’s case. Discovery is designed to prevent trial by surprise, where either side may suddenly produce a damning piece of evidence. Because trials are based on the discovery of truth, they should be tried on the merits of the case rather than a party’s deceit. In that spirit, the rules of discovery are broad. Relevant evidence is discoverable even if it is later ruled to be inadmissible at trial by the judge. Parties are also obligated to turn over material that supports their case, without demand from the other side unless it is protected by the attorney-client privilege.

Type of Discovery	Description
Request for Admission	Ask opposing party to admit specific facts or claims Ex: confirm legal name and address, existence of contract, etc.
Interrogatory	Written questions to opposing party about nature of claim Ex: identity of witnesses, extent of injuries, description of injury, etc.
Request for Production	Ask opposing party to produce documents and evidence relevant to lawsuit Ex: copies of contracts, records, reports, emails, etc.
Deposition	Sworn testimony of potential witnesses at trial Court reporter is present and makes official transcript of questions and answers but judge is not present

There are four types of discovery. The simplest is a request for admission. Remember that a complaint contains a series of claims the plaintiff is making against the defendant. The parties may ask each other to admit that certain facts are true or that a contested claim is true. Doing so narrows the issues for trial because it is one less thing that the jury has to decide. Even if the parties dispute legal liability, if they agree upon the facts that caused the dispute, the case may take less time and money to resolve.

The second type of discovery is an interrogatory. These are written questions addressed to the other party. The questions tend to be simple and straightforward. Interrogatories seek to gather information about what happened, who was involved, a company’s structure, and the names and addresses of witnesses.

A third form of discovery is a request for production. A party can request another party produce relevant documents to the lawsuit, including internal company reports, emails, product manuals, and employee records. In some cases physical evidence may also be produced. For example, if a consumer sued a vehicle manufacturer because a wheel fell off while driving, the manufacturer may ask the consumer to produce the vehicle so that its engineers can inspect it. Failure to preserve and produce key evidence in litigation can lead to charges of spoliation, which may result in severe sanctions against the offending party.

Finally, discovery can take the form of a deposition. A deposition is a sworn oral statement, in response to questions, given by a potential witness in a trial to the attorneys in the case. A deposition is attended by the witness being deposed, attorneys from all the parties, and a court reporter who keeps a written or video transcript of the deposition. There is no judge present, so there is great latitude for parties to ask questions, even if the answers are not admissible in court. Depositions help prepare for trial by knowing everything a witness may say in court. They also serve to pin down a witness’s testimony, because a witness who changes testimony between a deposition and trial can be impeached.

Motions

At any point in litigation, either party may file motions with the court. A motion is a request to the court to rule on an issue or claim.

If a defendant is properly served and does not answer the complaint, the plaintiff can file a motion for default judgment. In essence, the plaintiff asks the court to enter judgment in his or her favor because the defendant refused to show up to court to defend against the case. The alleged facts are admitted by default and the plaintiff may receive all the relief requested.

At the beginning of a lawsuit, a party can file a motion to dismiss for failure to state a claim. In this motion, the defendant argues that even if everything in the complaint is factually true, the plaintiff is not entitled to legal relief. In other words, the defendant’s conduct has not broken any laws.

If a long period of time has passed since the incident in question and the filing of the lawsuit, a defendant may file a motion to dismiss based on the statute of limitations. Every civil and criminal action has a statute of limitations, which requires lawsuits to be brought within a specified period of time. Statutes of limitations exists to encourage parties to file their lawsuits quickly, while evidence is still fresh and relevant witnesses remember what occurred. As time passes, evidence may be destroyed, witnesses may die or move away, and those who can be located can’t remember what they saw or heard. In other words, the quicker a lawsuit is filed, the more likely that the truth will be discovered through litigation. For businesses, a statute of limitations also allows it to “close the books” on past liabilities.

Another motion that is filed before discovery and trial is a motion for judgment on the pleadings. This motion asks the court to determine whether a genuine issue of material fact exists that allows the case to proceed. These motions are not as common as motions to dismiss but they are an important tool to dismiss lawsuits that are fatally flawed before the parties spend too much money. For example, if a business is sued by several parties for injuries resulting from a common cause but the complaints allege conflicting facts, the business may file a motion for judgment on the pleadings. In other words, the defendant is asking the court to dismiss the complaints because they contradict each other in a way that it is impossible to reconcile. If dismissed, the plaintiffs may file new complaints that are not flawed.

Similar to a motion for judgment on the pleadings, a motion for summary judgment asks the court to enter judgment in a party’s favor instead of trying the case. Filed after discovery, this motion asks the court to rule that there are no genuine issues of facts for trial. For example, if a plaintiff admits during his deposition that he lied about being involved in an accident, the defendant may bring a motion for summary judgment because the plaintiff brought a fraudulent lawsuit. Although any party may file a motion for summary judgment, defendants file and win many more motions for summary judgment than plaintiffs.

Pretrial Motion	Description
Motion for Default Judgment	Defendant was served but does not answer the complaint Plaintiff wins because defendant does not defend against the lawsuit
Motion to Dismiss for Failure to State a Claim	Determination of whether the law supports the plaintiff’s claim(s) Defendant wins because conduct did not break the law
Motion for Judgment on the Pleadings	Determination of whether plaintiff is entitled to judgment or damages, even if the facts alleged are true Defendant wins because complaint is fatally flawed
Motion for Summary Judgment	Determination of whether genuine issue of material fact exists to support plaintiff’s claim(s) based on pleadings and evidence during discovery Defendant wins because evidence does not support plaintiff’s claim(s)

A party may submit an affidavit in support of any motion. An affidavit is a written statement made under oath. Affidavits play an important role in pretrial procedure because they are an effective way for parties to tell their side of the story to the judge.