CHAPTER 3 (Chapter 4 in book)
TRIALS AND ADR
The Lawsuit – Litigation
The process of bringing, maintaining, and defending a lawsuit is called litigation. It’s also called judicial
dispute resolution because courts are used to decide the case. Litigation is a difficult, time consuming, &
costly process that must comply complex procedural rules. Most parties hire a lawyer to represent them.
Pretrial Process: can be divided into the following major phases -
Pleadings: paperwork that is filed w/court to initiate & respond to a lawsuit.
Complaint and Summons pleading: 1 step, sets forth facts of case.
Complaint- document a plaintiff files w/court & serves on the defendant to initiate a
Summons: once a complaint has been filed, court issues a summons. This is a court
order directing defendant to appear in court & answer the complaint.
The defendant’s written response to a plaintiff’s complaint that is filled with the court
& served on the plaintiff. In the answer defendant admits or denies allegations
contained in complaint.
- Default Judgment: if defendant does not answer complaint, this is entered
for him. A default judgment means defendant loses & the plaintiff then has
only to prove damages.
A document filed by a defendant against plaintiff to seek damages or some other
remedy. This is filed alongside an answer. This is filed if the defendant believes that
he/she has been injured by plaintiff. Defendant now sues plaintiff for damages or
some other remedy. Defendant becomes cross-complainant & plaintiff becomes
- Reply to Cross-Claim: original plaintiff must file a reply (answer) to cross
Intervention and Consolidation
Intervention: if other persons have an interest in lawsuit, they may intervene &
become parties to lawsuit.
Consolidation: act of a court to combine two or more separate lawsuits into one
When more than one person has the same claim, they find a representative planner & the file suit
against the company. Depending on common, legal, or factual claim. You can always opt out of
it.Ex. When there is a lawsuit against a bank for increased interests.
Statutes of Limitations:
Plaintiff only has a certain period of time to file lawsuit against defendant. If suit is not filed
within this time period, plaintiff loses his/her right to sue.
A legal process during which each party engages in various activities to discover facts of the case
from the other party & witnesses prior to trial. This prevents surprise, allow parties to thoroughly
prepare for trial, preserving evidence, saving court time, & promoting the settlement of cases.
The major forms of discovery are: - Deposition: Informal procedure; oral testimony given by a party or witness prior to trial.
Testimony giver is called deponent. Deponent is placed under oath & asked oral questions
by one or both of the attorneys. Deponent is given an opportunity to correct his or her
answers prior to signing deposition. Depositions are used to preserve evidence and impeach
testimony given by witness at trial.
- Interrogatories: are written questions submitted by one party to another party. Party is
required to answer interrogatories in writing within a specified time period. Answers signed
- Request for Production: request by one party to another party to produce all documents
relevant to case prior to trial. This is so lawyer when lawyer goes to trial he has proof.
- Physical/Mental Exams: A court-ordered examination of a party to a lawsuit before trial
to determine the extent of the alleged injuries.
Ex. Plaintiff has been injured in accident & is seeking damages for physical injury.
This is a motion a party can make to try to dispose of all or part of a law suit prior to trial. A trial
takes time & costs money, so plaintiff must decide before you begin a suit if it’s worth it.
- Motion for judgment on pleadings: motion that alleges that if all facts presented in
pleadings are taken as true, the party making the motion would win the lawsuit when
the proper law is applied to these asserted facts.
- Motion for Summary Judgment: if all the evidence shows that defendant can’t win
case, summary of judgment is called.