What are the General Steps Someone Should Take in a Lawsuit?
A lawsuit starts out with a complaint. But even before the complaint, often a proper litigation starts out with the demand. Once an attorney gets involved, the first thing they should do is send out a demand letter demanding compliance with whatever it is that the client is looking to sue for. If the demand is not met with the proper response, then we can proceed to the lawsuit. A proper response might be either to acquiesce to the demand or to try to negotiate the demand. If the parties are amicable, we can try to negotiate a solution without even getting into a lawsuit in the first place. In an event that the lawsuit is inevitable, then it starts out with the complaint. So, what we do is we draft a complaint.
There is a shortcut to that if there is a short timeframe based upon what’s known as a statute of limitations in which case we have to get a lawsuit started almost immediately. We can bypass filing a complaint right away by filing what’s known as a “Summons with Notice.” Most lawsuits will start with a “Summons and Complaint” which includes the complaint that outlines what issues the plaintiff has with the defendant. A summons is a legal notice that has to be served on the other side. It says, “We’re summoning you to court.” When the summons and complaint are filed, an index number is generated by the court and then, the summons and complaint need to be served on the individual. They can be served by anybody who’s over the age of 18, who’s not an interested party and oftentimes, that’s done by a professional who is known as a process server. They’ll serve the lawsuit upon the other side, basically the summons and complaint, and then the defendant has a certain period of time to answer.
The defendant then will generally answer the complaint. If they have counterclaims, their answer will include counterclaims where they are claiming something in response if they think that the plaintiff really owes them money or has some cause of action against the plaintiff themselves. Once the answer has been filed, then the lawsuit moves into a process known as “discovery”. Discovery is where both sides are allowed to ask for information, answers to their questions and for documents from the other side, which are relevant to the case and can help lead to information that is discoverable from the other side. That is how they begin to formulate their ultimate legal positions.
Oftentimes, one party has documents and information that the other party doesn’t have but the other party knows they have it so they demand that information and documents through discovery and the same will go for the other side. Discovery is usually the longest period of time in a lawsuit and it can go on for quite some time and people can play games there. They can refuse to give over information in which case, discovery has to be compelled through the court system or the judge will review what’s being requested and make an order that the other side has to give it over or not if they feel that it’s not necessarily relevant. It could also be denied based upon failures to request it or to supply it.
It’s always important to have proper legal advice during the process of discovery and make sure that your discovery demands are not thrown out of the door simply because they weren’t properly requested. After discovery, parties often file what’s known as a “Motion for Summary Judgment.” Summary means quick and the judgment means judgment, so summary judgment is looking for a quick judgment without having to yet go to trial. If a party feels like they have a case that has no facts that need to be determined by a jury or a judge, then they can put all of their evidence into a motion for summary judgment and see if they can get judgment immediately. Usually, both sides will try that and if the motion for summary judgment is denied on both sides, then the lawsuit will go to trial.
There is a lot of preparation for trial including motions to get evidence in and motions to keep evidence out. When the lawsuit reaches the trial phase, if it’s a jury trial, a jury is selected, and if not, then the parties will go in front of a judge. At the trial, each party can call witnesses, they can present evidence and they can conduct cross-examination of the other party’s witnesses. At the end of the presentation of evidence, then the judge or the jury is going to deliberate and will make a decision as to who is the winner on each cause of action. Once they make a decision as to who is the winner, then damages will be determined either by the judge or the jury. Once damages are determined, then a judgment is created by the court, and the winning party has a judgment against the losing party, either the plaintiff against the defendant or the defendant against the plaintiff in a counterclaim.
If the defendant wins on the plaintiff’s claim, then the claim is dismissed. If the plaintiff wins on the defendant’s counterclaims, then that’s dismissed. If either one wins on their own claims, then they get a judgment against the other side. Once the judgment is complete, there is some usual motion practice afterward that the judgment be vacated for various reasons. But whoever has a judgment is then going to go to try to collect on the judgment outside of the lawsuit and they can do that by attaching the losing party’s wages or their assets that they might have in various bank accounts or investment accounts, or real estate, or other non-protected assets.
For more information on General Steps Taken in Civil Lawsuit in New York, Long Island, Nassau or Suffolk County, a FREE phone consultation is your next best step. Get the information and legal answers you are seeking by calling (516) 806-0762 today.
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