Civil Procedure 101 - Part 1

In the interests of living up to the name of the blog. Feel free to borrow liberally.

Disclaimer: For informational purposes only. Should not be construed as legal advice for any particular situation.

Complaint

Litigation is started by the filing of the complaint. In most cases, settlement negotiations have preceeded the filing, and the other side is aware that it may be coming, but this is not always true. The Complaint sets out who the parties are, why the court has jurisdiction over the case, what the basic facts are, what rules/laws were violated, and what kind of relief the plaintiff is seeking. The Complaint is accompanied by a Summons, a document which formally orders the defendant to respond within a certain time frame.

Motions

There are a lot of different types of motions. In the beginning of the case, the motion you're most likely to see is a "motion to dismiss for failure to state a claim" (in Federal court, this is based on Federal Rule of Civil Procedure 12(b)(6), in state courts, the rule numbers vary). In this type of motion, the defendant asserts that even if you assume that everything in the Complaint is true, there is still no claim made upon which the plaintiff can obtain relief from the court.

The example that I've heard most often is kind of silly, but it illustrates the point: Let's say I have a cat that I have named Eliza Doolittle. If I sue you for the wrongful death by murder of Eliza Doolittle, you could file a motion to dismiss the lawsuit, on the grounds that even if you take everything in the Complaint as true, the wrongful death by murder of a cat is not a claim for which the court can give me any sort of relief.

Answer

The Answer to the Complaint usually comes after the motion to dismiss (especially in federal court; in state courts, the motion and answer are sometimes in the same document). In the answer, the defendant responds to the allegations of the complaint, and sets out any affirmative defenses that may be available. For example, if the claim was filed after the deadline set by the statute of limitations, the case can be dismissed, but it's an affirmative defense that must be raised by the defendant.

Counterclaims, cross-claims, and third-party claims

A defendant may also have related claims that he or she wants to raise as well. If the defendant's claims are against the plaintiff, they're called "counterclaims", and usually involve some sort of set-off (but not always). If one defendant has claims against another defendant, it's called a "cross-claim". This is usually something along the lines of a claim for contribution. If a defendant has a claim that's related to the plaintiff's claim, but it's against a person who is not yet a party to the action, the defendant can file a third-party complaint against the person to bring them in.

Discovery

Despite what you may have seen on television, there are not supposed to be any surprises at trial. In the discovery process, each side is supposed to turn over to the other side the evidence they intend to use at trial. There are certain discovery tools that are used to do this: Requests for Admissions, Depositions, Interrogatories, Requests for Production of Documents, and Subpoenas. The responses to discovery requests are generally treated as testimony, even though the jury may not get to hear it; for example, interrogatory answers are given under oath, but the jury may never hear the answers read aloud in court.

Affidavits

These are documents in which an individual swears under oath before a notary to certain facts set out in the document. Usually these are attached to a motion.

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