Civil litigation refers to a legal dispute between two or more parties that are litigated in a court of law. It's largely differentiated from criminal litigation cases, which result in criminal prosecution and sanctions. With the help of legal professionals who specialize in this service, known as “litigators,” individuals seek money or specific duties owed to the from the other party(ies). Litigators serve as representatives for each party and are present throughout the course of this legal process.
Types of Civil Litigation
A myriad of disputes falls under the umbrella of civil litigation. Since this area of law is relatively broad, most litigators have decided to focus on particular practice areas. Some types of civil cases that are commonly pursued by clients are:
- Contract disputes
- Neighbor disputes
- Landlord/tenant lawsuits
- Probate disputes
- Real estate disputes
- Commercial disputes
- Consumer complaints
Stages of Litigation
Before pursuing a civil case, clients should have at least a vague idea what will occur during litigation. Although each case is highly individualized and they each will entail unique details depending on the cause of action, jurisdiction and circumstances, there are some stages that each case will most likely go through before a conclusion is reached.
After a client hires a competent and qualified attorney to advocate for them, it will be that attorney's job to conduct an investigation and assess the case. What will be determined in this investigation depends on whether the attorney represents the plaintiff or the defendant. In the case of a plaintiff, an attorney will investigate the circumstances of the dispute and determine if there is enough evidence to file a lawsuit. When investigating for a defendant, a lawyer will identify whether there is any existing evidence that can be used to defend and refute the claims of the plaintiff. During the course of an investigation, an attorney may schedule client interviews, document witness accounts and acquire important documents to strengthen a case. In some cases, legal professionals may advise that each party chooses to opt to an alternative form of dispute resolution such as mediation or arbitration in order to avoid going to trial. This option would ensure the matter is resolved before a lawsuit is filed.
The next step is filing a complaint. Individuals who wish to bring a lawsuit will file formal documents, known as pleadings, that clearly state each party's position on the dispute. Litigants commonly file the following pre-trial pleadings when pursuing a case:
One who brings a lawsuit, whether it is a person, business, or combination of people and/or businesses, is called the "Plaintiff." The Plaintiff initiates a lawsuit by filing a document called a "Complaint" with the court. The Complaint outlines the facts from the Plaintiff's perspective and the legal theories upon which the Plaintiff claims that another person or business, called the "Defendant" should be held liable. It identifies, at least in general terms, what the Plaintiff would like the court to order the Defendant to do - whether it be to pay a sum of money, refrain from doing certain things, or another form of relief.
Along with the Complaint, the Plaintiff must file a document called a "Summons." The Summons tells the Defendant(s) that they have been sued, and provides them with information about how to respond, and to whom the response should be directed. The Summons and Complaint typically must be served upon the Defendant(s) by a process server.
After the Defendant(s) are served with the Summons and Complaint, they must create a statement responding to the Plaintiff's allegations. These answers may also contain additional facts or an excuse as to why they conducted themselves as described in the civil complaint. If a Defendant fails to answer the Complaint within the specified time period, the Plaintiff may be entitled to judgment without a trial. Thus, it is important for a Defendant to act quickly upon receiving these documents.
The defendant also has the option of filing a Counterclaim, which argues that the Plaintiff is liable for some damages the Defendant has suffered, whether economic or otherwise. When this occurs, the Plaintiff is also required to provide an Answer to the Counterclaim within a specified time frame.
The discovery process takes place outside of the courtroom when a case is underway. It consists of the parties exchanging and gathering facts and other information that is deemed valuable in a case. As long as the information is somewhat relevant to the case, is not considered “privileged” and is legally obtainable, it is fair game in the discovery process. Attorneys utilize the following discovery tools, among others:
Interrogatories: a list of questions asked in writing to the other party. The other party must provide these answers within a specified time frame. The answers to these questions typically assist the party asking the questions in determining what other discovery tools may be necessary to obtain the information needed to proceed to trial.
Depositions: a face to face questioning of a witness or member of the opposing party. Each individual questioned must answer under oath and agree to be recorded for later use in trial.
Request for production of documents or other evidence: A party asks an opposing party for documents or physical evidence that pertains to the dispute.
Once the discovery process has ended, the pre-trial or motions stage begins. In this stage, litigators prepare for trial by scheduling motions, attending conferences, finding expert witnesses and developing strategies for a successful outcome in court. Overall, this period is designed to ensure the trial runs as smoothly and swiftly as possible.
Once all of these stages have taken place there will be a trial. During the course of a trial, the judge and jury will determine which party should prevail.
Bench trial vs. Jury trial
A bench trial is always available, regardless of the type of case. During a bench trial, each party will present their cases to a judge, there will be no jury involved. These cases put the decision solely in the judge's hands without the opinions of anyone else. This type of trial is useful in cases that are complex, and require a person with a vast knowledge of the law to reach a decision. In a jury trial, however, members of the community are picked to observe a client's case and are the ones who will ultimately reach a decision. Although the judge is still present to address objections, handle legal questions and motions, the jury does not need to answer to anybody for the decisions they reach. Depending on the type of matter involved, the parties may be entitled to a jury trial if they so choose. Unlike criminal cases, a jury trial in a civil matter is not a constitutional right, and it must be requested in a timely manner or it is waived.
Regardless of the type of trial selected, the trial generally proceeds as follows:
- Opening statements - The attorneys for both the plaintiff and the defense will describe the main issues of the dispute through the lens of each party. The plaintiff's team will first introduce why the defendant should be held liable for damages while the defense team explains why these claims should be dismissed.
- Plaintiff testimony - A presentation of witnesses and experts in an effort to prove the complaint is valid.
- Defense testimony - A presentation made on the behalf of the defense to invalidate the claims of the plaintiff.
- Plaintiff rebuttal - When the defendant's case has concluded, the plaintiff has the option of presenting witnesses or evidence to challenge the evidence of the defendant.
- Closing arguments - A summary of the positions of each party. These statements are typically melodramatic in nature. Soon after the jury will deliberate.
- Verdict - After the judge or the jury is done deliberating, which could take hours or even days, they will present their decision.
Post-trial motion: The winning party must request a motion in all civil cases to make the verdict the judgment of the court, set the judgment amount and dictate legal costs. The losing party may make a motion for a new trial or other motions before the judgment is entered in an attempt to undo a negative verdict and preserve its rights.
Appeal: The losing party can file an appeal for the case to be examined by a higher jurisdiction.
Experienced Wisconsin Attorney
If you are contemplating pursuing legal recourse, you need a competent attorney to guide you through the process. Contact attorney Mara Spring today.