Daniel J.H. Greenwood

Stages of a Lawsuit

1. Injury
2. Injured party to a lawyer. In US, typically on a contingency fee. In other common law countries and Civil Law countries, that is generally considered unethical.
3. Settlement Negotiations. Most lawyers will attempt to settle the claim – that is, negotiate an agreed-upon resolution with the other side (or its insurance company) early on and then regularly through the proceedings.
4. Commence a suit with a complaint:
   1. Names parties (plaintiff, defendant).
   2. Summary description of claims, followed by a demand for relief.
   3. States facts that P plans to prove at trial and draws a legal conclusion.
   4. Ordinarily unsworn - not evidence.
5. Demurrer/Motion to Dismiss/12(b)6 motion:
   1. Defendant’s motion claiming that EVEN if P proved every fact alleged in the complaint, P would lose.
   2. Note that in a motion to dismiss, the only “facts” involved are the Plaintiff’s claims in the complaint, which are just assertions.
   3. Note that motions are directed to and decided by the trial judge.
6. Discovery: parties may demand that other parties provide information in their control, including by subpoena of documents or notice of deposition.
7. Answer. Deny or admit each factual allegation in the Complaint. May proceed or follow 5 and 6.
8. Summary Judgment Motion:
   1. Using the facts alleged by the other side and admitted by my side, and the facts that either side has provided sworn written evidence (by affidavit) supporting and the other side has not controverted with sworn evidence, my side wins (can be brought by either side).
   2. Unlike a motion to dismiss, this involves some actual facts: facts that are either (1) admitted by the other side, or (2) sworn to and uncontradicted.
   3. What happens to sworn affidavits that contradict each other (I swear the banana peel was there for over 5 days; you swear it was there for less than 5 minutes)? These are “controverted facts” and can not be used to support a motion for summary judgment.
9. Judicial conference. (May not be the first). Typically, judge will encourage settlement or at a minimum, agreement on a limited set of disputed issues for trial. Agreements on evidence to be offered.
10. Jury Trial.
    1. a. Selection of a jury
    2. b. Opening statements to jury
    3. c. Plaintiff’s witnesses
    4. d. Evidentiary motions. Questioning of witnesses is highly structured, to allow lawyers to move to exclude questions or witnesses they believe are improper.
    5. e. Motion for directed verdict – like a summary judgment motion: D claims that given all the facts P has actually proven, P loses; no reasonable jury could find for P.
    6. f. D’s witnesses.
    7. g. P’s Motion for directed verdict: given facts D proved at trial, no reasonable jury could find for D.
    8. h. Closing arguments to jury.
    9. i. Instructions to the jury (may involve additional motions to judge regarding their content). In contemporary US practice, judge gives the jury the judge’s view of the law but not the facts. (In early US, the reverse was often the rule, or judges were not allowed to instruct at all – lawyer’s argued only).
    10. j. Jury verdict. May be special (answers to particular questions) or general (X or Y is liable or not, and for $Z). Jury is asked to opine on facts and mixed fact/law, but not on law alone.
    11. k. Motion for JNOV: Jury verdict is so manifestly wrong that Judge should override it as a matter of law. In effect: No reasonable jury could reach this verdict unless they misunderstood the law.
    12. l. Order and opinion. Court’s order directs loser to do something (pay money or take some action) and is enforceable by contempt. Opinion justifies the order. Trial court opinions are often short or non-existent, particularly in jury trials.
11. Appeal:
    1. a. The jury’s view of the facts is final. However, all legal issues are subject to appeal. This means another court reviews the first court’s decision.
    2. b. Usually appellate courts have more judges than trial courts. US norm is 1 judge trial courts, 3 judges for first appeal, more for 2d appeal. Other countries have other rules (non-common law countries usually have single judge trial courts only for small or simple matters).
    3. c. No evidence is taken on appeal. You are stuck with whatever testimony and affidavits are left from the trial.
    4. d. Appellate courts do not review jury findings of fact.
    5. e. Appellate courts review trial court findings of fact with extreme deference, trial court evidentiary rulings with substantial deference, but usually give little or no deference to trial court rulings on applicable law.
    6. f. Usual remedy if the appellate court finds an error is to order a new trial (unless the undisputed facts clearly indicate a legal result in light of the appellate court’s view of the law, similar to a summary judgment motion).
    7. g. Appeals courts publish most opinions (unless they deem the issue to be entirely repetitive of a previous opinion).
    8. h. Terminology: The loser below, who "takes" an appeal, is called the "appellant." The winner below, against whom the appeal is taken, is the "appellee."