matt1000When a plaintiff files a civil lawsuit, there is a certain order of events that occur leading to the trial of the case. Although, in certain cases, the order may change or different stages may be eliminated, both the federal and state rules of procedure generally allow the same sequence of events in preparation for trial. This column will address and explain each stage leading up to the trial.

A civil lawsuit is initiated by the plaintiff, the person who feels that they have been wronged by the defendant. The plaintiff drafts a document called the “complaint.” A properly-drafted complaint is not written like a letter or a newspaper story. Instead, it is a highly technical document in which each allegation that the plaintiff makes against the defendant is set forth in numbered paragraphs. The complaint should also thoroughly list the laws that the plaintiff thinks the defendant violated, and the damages to which the plaintiff thinks he is entitled.

Once the complaint is written, it is then filed in the appropriate court. The court then opens a file, assigns a case number, and issues a “summons”. The summons and a copy of the complaint must be “served” (delivered) to the defendant. This procedure is called “service of process.” Once the summons and complaint have been served on the defendant, then the defendant has a certain number of days to “answer” the complaint. In most Mississippi courts, a defendant has 30 days to answer, but in Federal court it is only 20 days. When the complaint is filed, the defendant has only 120 days to get the defendant served, which means that new lawsuits can’t sit there for an unlimited number of time.

Once a defendant has been properly served with the summons and complaint, the defendant must “answer” the complaint. Like the complaint, the answer is a technical document that does two things. First, the defendant must formally “admit” or “deny” each of the numbered allegations in the complaint. Second, the answer must set forth the other defenses upon which the defendant intends to rely. These other defenses are known as “affirmative defenses.” A complete discussion of defenses is not possible in this column for space reasons, but suffice it to say that, in most cases, there are defenses available that are not tied to the specific facts of that case. For instance, recently enacted caps on damages would be a separate defense that a defendant could raise in the answer.

Once the complaint is formally answered, the process of “discovery” begins. Literally, “discovery” is the phase of a case where facts are “discovered.” As a wise old lawyer once told me, “we are not ‘lawyers’, we’re ‘fact-yers’, because the attorneys and judges involved in a case know the law….it is the facts of a case that determine the winners and losers.” Discovery helps both sides learn the facts.

Although there are many forms of “discovery,” it consists of four basic vehicles. The first three are done in writing. First, there are “interrogatories”, which are written questions to be answered, under oath, by the other side. In other words, the attorney representing the defendant sends these written questions to the plaintiff, and vice-versa. Second, there are “requests for production of documents”, which is where each side to a case can request the other side to produce copies of documents in their possession which might have bearing on the case. Third, there are “requests for admissions”, which are written assertions of fact that the other side must admit or deny. For instance, a plaintiff in a car wreck case might send a request for admission saying “at the time of the subject collision, please admit you were not wearing your prescription eyeglasses.” The defendant then would either admit or deny this assertion of fact.
The fourth discovery vehicle, the “deposition,” gives attorneys the opportunity to sit down face-to-face with witnesses and ask questions about the case. A court reporter is present to write down every word said, and the witnesses answer the questions under oath. Of all the discovery devices available, it has been my experience that the deposition is by far the most effective discovery tool, because you cannot beat a face-to-face conversation for learning each witness’s position on factual allegations. Also, the court reporter will type the words spoken, and furnish a transcript to the plaintiff and defendant. The transcript of the deposition can then be used in motions filed by the parties and at trial, most commonly when a witness tries to change his story from the deposition to the trial.

Over 90% of all civil cases settle, and they usually settle when “discovery” is completed. The whole purpose of discovery is to prevent “trial by ambush.” In other words, both sides should know the relative strengths and weaknesses of their cases, and all of the evidence for trial, at the end of discovery. Once this information is known, the lawyers can then best inform their clients of the risks of going to trial, and of the most likely outcome. This information prompts most cases to settle.

It is important to note that the process of “discovery” is not free from a dollars and cents standpoint. Court reporters must be paid for their time and work at depositions, and lawyers must be paid for their time in preparing the interrogatories, requests for production of documents, and requests for admissions. Accordingly, because of the cost factor and other strategic concerns, discovery is not fully conducted in all civil cases.

After “discovery” comes the actual trial, in which the plaintiff and defendant present their fully-developed cases to the judge and/or jury. A civil plaintiff, in the vast majority of cases, must prove his allegations to receive the damages that he requested in his complaint. Of course, it follows in most cases that the defendant seeks to disprove the facts alleged by the plaintiff. Ultimately, depending on the type of case, the judge or jury decides who ultimately wins and who loses.