PARTIES AND LEGAL PROCEEDINGS IN CIVIL CASES

Bringing, maintaining, and defending a lawsuit is generally referred to as the litigation process. The first phase of a lawsuit is the pleadings phase. The party initiating a lawsuit (the plaintiff) must file a complaint with the proper court naming the parties to the lawsuit, the facts, and a “prayer for relief”¹ which asks for the remedy sought.

Once a complaint is filed, the court issues a summons to the defendant to appear in court and answer the complainteither admitting or denying the allegations. If the defendant admits all of the allegations, a judgmentwillbe entered againsthim/her, if s/he denies some or all of the allegations, the case will proceed. If the defendant does not answer the complaint, a default judgmentwill be entered against him or her. If the defendant believes that the plaintiff has injured him/her in some way, a cross complaint, alleging damages sought by the defendant, can be filed along with the answer to which the plaintiff must file a reply. Other parties who may have an interest in the lawsuit may interveneand become parties to the lawsuit. If several plaintiffs have filed separate lawsuits stemming from² the same fact situation against the same defendant, the court can consolidate the cases into one case.

The elements of discovery can include: depositions(oral testimony given by a party or witness prior to trial that is used to preserve evidence), interrogatories(written questions submitted by one party to a lawsuit to another party that usually must be answered under oath within a specified period of time), production of documents (one party to a lawsuit may request another party to produce relevant documents), and physical or mental examinations (in cases where the physical or mental condition of a party is important).

In some cases when it is in the client’s best interest to settle the case rather than take it to trial, the attorney may make or solicit³ a settlement offer. If all parties agree, a settlement agreement, a contract between the parties or a release is negotiated⁴ that results in the dismissal of the claim. The following pretrial settlement motionscan be made: motion for judgment on the pleadings (alleges that if all the facts in the pleadings were true, the party making the motion would win), motion for summary judgment (asserts that there are no factual disputes to be decided by a jury and that the judge should apply the law to the undisputed facts and decide the case), and settlement (a pretrial hearing or conference with the judge, attorneys, and parties to facilitate settlement of the case).

Once a case has proceeded through discovery and other pretrial motions a date for trial is assigned. The order of presentation commonly is as follows. Plaintiff’s counsel followed by defendant’s attorneyeach making opening statements, explaining what they intend to prove. The plaintiff’s witnesses andevidence are examined and cross-examined. Then the defendant’s witnesses and evidence areintroduced, with similar rights of examination and cross-examination. After the evidence has been submitted, each side makes closing arguments summarizing the evidence supporting their respective positions. Plaintiff again typically summarizes first, but has a right of rebuttal after the defendant’s closing remarks have been made. If there is no jury, the judge then will evaluate the evidence and render a judgment. If a jury is present, the judge instructs the jurors as to the law to be applied. The jury then retires to deliberate in order to render its verdict. If the jury returns with a verdict, the judge will enter a judgment on it. In case the jurors report that they are deadlocked⁵, the judge may send them back for additional deliberations. But if that fails to break the deadlock, then a mistrial⁶ will have to be declared.

II. DEVELOPMENT

1. Find in the text the information on:

a) the main stages of civil proceeding;

b) the pretrial settlement motions;

c) the pleading phase;

d) the elements of discovery.

2. Use the text to fill in the table with the words and expressions related to:

3. Make sure you are familiar with the words in the box. Read the text and fill up the gaps with the appropriate words:

Date: 2015-12-17; view: 824