A lawsuit is not what you see on TV. On TV, a lawsuit is won by an attorney marching into court with a grand display of showmanship and a cunning tongue. The TV judge hearing the case makes a spot decision and it’s all over and decided before the final commercial break. In reality, a civil litigation takes years and is much more of a chess match than a swordfight. As opposed to this courtroom drama, a real case is typically decided on paper submissions that may be heard months after they are first provided to the court. Additionally, the decision is often made on a technical procedural rule, not on the merits or substance of the litigation.
You see, being right isn’t everything in real litigation. Instead, a real lawsuit is all about knowing how to play the game. The following is a summary of the stages of a litigation, but this chess match isn’t linear and each of the stages can appear out of order and can even reoccur again and again. So, civil litigants need a skilled advocate who is a master of the game if they want a shot at victory. Here is your game board:
a. Summons and Complaint: These papers set forth the elements of a claim and cause the defendant to respond to the case or risk default. These papers are first filed with the clerk and then served on the defendant.
b. Answer: This is the most important aspect of a case for a defendant. Failing to respond properly to the case will cause a loss no matter if the defendant is right or wrong. To avoid defeat, a defendant must file and serve a responsive document that either admits or denies the plaintiff’s allegations while offering affirmative defenses, which are bases for the defendant to win even if plaintiff’s allegations are true.
c. Counterclaims/Cross-Claims: Both are options for a defendant to include in his / her Answer. Whereas a Counterclaim is a claim by the defendant against the plaintiff, a Cross-Claim is a claim by a defendant against a co-defendant.
d. Reply: This is the Answer for the Plaintiff or Co-Defendant who is the recipient of a Counterclaim or Cross-Claim.
e. Impleader/Third-Party Claims: The defendant has an opportunity to bring a new party into the lawsuit, who the defendant alleges is responsible/relevant to the plaintiff’s claims in the lawsuit and to which the defendant can pursue a claim against.
f. Bill of Particulars: This device allows a defendant to demand that a plaintiff amplifies their complaint’s allegations with details so that the unknown aspects of the plaintiff’s lawsuit can be understood and defended.
a. Discovery and Inspection: Both the plaintiff and defendant can utilize this device to demand documents of one another.
b. General Demands: Items such as the existence of insurance, the identification of witnesses and expert witnesses, the demand for party statements and the like can be sought through these demands.
c. Depositions: Both parties can conduct recorded interviews of the other, which are designed to flesh out the parties’ claims and defenses. This device is also known as an examination before trial and it’s typically the most trial-like experience for the parties throughout the entire litigation. Non-parties can also be subpoenaed to testify at a deposition.
d. Notices to Admit: Both parties can cause the other to admit certain facts before trial should an issue set for trial not be in dispute and if the issue would be a waste of judicial economy to establish at trial.
a. Dismissal Motions: A motion simply means an application to the court and a motion to dismiss is an application that a lawsuit should be thrown out. When the case is started a defendant can seek dismissal for a large number of stated grounds contained in the Civil Practice Laws and Rules. The most common of these grounds are the failure to state a cause of action and the existence of documentary evidence that contravenes the plaintiff’s lawsuit. Similarly, a plaintiff can bring an application to dismiss affirmative defenses and counterclaims.
b. Summary Judgment: Similar to a motion to dismiss, a summary judgment motion also seeks a final decision on the case. However, unlike a motion to dismiss, a summary judgment motion is brought on the evidence so long as the evidence is not in dispute.
c. Discovery Motions: These motions are the most common in litigation as parties don’t often fork over what their adversary demands without objection or a motion for a protective order. Similarly, the party seeking disclosure can ask the court to compel production and even issue sanctions for non-compliance.
d. In Limine Motions: Some evidence fails the rules of evidence and should not even be considered by the court when it comes to motions or a trial. If a party wants to object to the evidence prior to its introduction (so the jury/court doesn’t even hear the evidence when making a determination), then, a party can proactively move to have it precluded through this device.
a. Jury Trial: In New York State, there are 6 jurors, 5 of which must make a decision to conclude a trial. These jurors aren’t picked per se, but instead excluded based on procedural rules.
b. Bench Trial: Equitable issues are always tried by the judge and legal issues may also be tried by the judge at the discretion of the parties. These trials are less rigid to the rules of the courts because judges get what is going on and don’t need the handholding that is afforded to the jury.
With an understanding the complexity of the game board, one should now understand that strategy, not showmanship, is the key to winning a civil litigation.
Andrew M. Lieb, Esq., MPH, is the managing attorney of Lieb at Law P.C. and a contributing writer for Behind the Hedges and BehindtheHedges.com.