2.6 How a Case Proceeds in Court

In this section, we consider how lawsuits are begun and how they make their way through the Courts. Courts do not reach out for cases. Instead, cases are brought to them, usually when an attorney files a case with the right court on behalf of a person that believes they have suffered a legal harm. Once correctly filed, the case will proceed through the various processes designed with due process concerns in mind. In the United States, we have an adversarial court process, which means that the parties oppose each other throughout the litigation, with the goal of “winning” their case. The lawyer, if one is employed by the litigant, serves as an advocate for the client’s claim. Their duty would be to shape the evidence and the argument—the line of reasoning about the evidence—to advance his client’s cause and persuade the court of its rightness. The lawyer for the opposing party will be doing the same thing, of course, for her client. The judge (or, if one is sitting, the jury) must sort out the facts and reach a decision from this cross-fire of evidence and argument. The litigant that initiated the case has the burden of proof, which in a civil trial is generally a “preponderance of the evidence” which means that the plaintiff’s evidence must outweigh whatever evidence the defendant can muster that casts doubts on the plaintiff’s claim. Let’s review the process in more depth below.

Initial Pleadings and Process

Complaint and Summons

Beginning a lawsuit is simple and is spelled out in the rules of procedure by which each court system operates. A civil plaintiff begins a lawsuit by filing a complaint—a document clearly explaining the grounds for suit—with the clerk of the court. A complaint will have several key components as it serves as an initial pleading and sets the stage for the remainder of the litigation. The complaint will have a caption which indicates the parties to the lawsuit, the court the case is filed in, and the type of case, as well as identifying information called a docket number so the case can be tracked. The complaint must establish that the court has jurisdiction to decide the controversy, and the complaint must state the nature of the plaintiff’s claim and the relief that is being asked for (usually an award of money, but sometimes an injunction, or a declaration of legal rights). In addition, the complaint is signed, attesting to its truthfulness. Once the complaint is filed with the court, the defendant must be served with the complaint and summons. The summons is a court document stating the name of the plaintiff and their attorney and directing the defendant to respond to the complaint within a fixed time period.

Jurisdiction and Venue

As the complaint must establish that the Court has the power to decide the case, the complaint must be filed in a correct location. The Court must have subject matter jurisdiction over the claim in the complaint, and the complaint must be filed in the proper geographic location – called venue.

Service of Process

As stated above, the defendant in the case must be “served”—that is, must receive notice that he has been sued. This delivery of notice is referred to as service of process. Service can be done by physically presenting the defendant with a copy of the summons and complaint. But sometimes the defendant is difficult to find (or deliberately avoids the marshal or other process server). The rules spell out a variety of ways by which individuals and corporations can be served. These include using U.S. Postal Service certified mail or serving someone already designated to receive service of process. A corporation or partnership, for example, is often required by state law to designate a “registered agent” for purposes of getting public notices or receiving a summons and complaint.

Timing of Filing

The timing of the filing is important. Almost every possible legal complaint is governed by a federal or state statute of limitations, which requires a lawsuit to be filed within a certain period of time. For example, in many states a lawsuit for injuries resulting from an automobile accident must be filed within two years of the accident or the plaintiff forfeits his right to proceed. As noted earlier, making a correct initial filing, and including the required components of a complaint in a court that has subject matter jurisdiction is critical to avoiding statute of limitations problems.

Answer and Affirmative Defenses

Once a complaint is appropriately served, the Defendant in a lawsuit files an answer. The answer is the initial pleading of the defendant that is a written response to the plaintiff’s claims. The answer typically either ‘admits’ or ‘denies’ the allegations made by the plaintiff. Admitted allegations are accepted as true, while denied allegations require the plaintiff to prove their case. Therefore, most allegations are denied. The answer may also include “affirmative defenses,” which are legal reasons that, if proven, would excuse the defendant from liability. Affirmative defenses can also introduce new facts or principles to justify the defendant’s actions. As an example, the issue of the statute of limitations, referenced above, could be an affirmative defense if by defendant’s calculations the plaintiff did not file their complaint in time. The answer may also include counterclaims against the plaintiff or cross-claims against other defendants. The answer is filed within a specific time frame governed by the rules of the court in which the complaint was filed.

Motions and Discovery

The early phases of a civil action are characterized by many different kinds of motions and the exchange of mutual fact-finding between the parties that is known as discovery. After the pleadings, the parties may make various motions, which are requests to the judge to rule on legal issues in the case. Motions in the early stages of a lawsuit usually aim to dismiss the lawsuit, to have it moved to another venue, or to compel the other party to act in certain ways during the discovery process.

Motions

In litigation, a “motion” is a formal request made by one party to a lawsuit (the moving party) asking the court to take a specific action or make a particular decision. If a party wins a motion, or loses one for that matter, it can streamline the legal issues in the case substantially.

Motions to Dismiss at Pleadings Stage

A complaint and subsequent pleadings are usually quite general and give little detail. But in some instances, a case can be decided based on the pleadings alone. For example, if the defendant fails to answer the complaint, the Plaintiff can move for the court to enter a default judgment, awarding the plaintiff what they seek.

A defendant that believes that the complaint is defective can move to dismiss the complaint on the grounds that the plaintiff failed to “state a claim on which relief can be granted,” or on the basis that there is no subject matter jurisdiction for the court chosen by the plaintiff, or on the basis that there is no personal jurisdiction over the defendant. The defendant is saying, in effect, that even if all the plaintiff’s allegations are true, they do not amount to a legal claim that can be heard by the court.

Motion for Summary Judgment

A “motion for summary judgment” is a legal request made by a party to a lawsuit, asking the court to decide the case or specific claims in their favor without going to trial. This motion is typically filed after the parties have conducted discovery (summarized below) such that key facts in the case are known to both parties. If there is no triable question of fact or law, there is no reason to have a trial with a jury, and a judge could simply decide the case.

Discovery

If the claim made by the plaintiff involves a factual dispute, the case will usually involve some degree of discovery, where each party tries to get as much information out of the other party as the discovery rules allow. In a civil action, the parties are entitled to learn the facts of the case before trial. The basic idea is to help the parties determine what the evidence might be, who the potential witnesses are, and what specific issues are relevant. Full discovery helps determine which cases should genuinely go to trial to be heard by a jury, and which cases can be amicably settled. It helps each side understand the strengths and weaknesses of their opponent’s claims and defenses. There are several methods by which discovery can take place, the most common of which are listed here:

The lawyers, not the court, run the discovery process. For example, one party simply makes a written demand, stating the time at which the deposition will take place or the type of documents it wishes to inspect and make copies of. A party unreasonably resisting discovery methods (whether depositions, written interrogatories, or requests for documents) can be challenged using a motion to compel discovery as judges can be brought into the process to push reluctant parties to make more disclosure or to protect a party from irrelevant or unreasonable discovery requests. For example, the party receiving the discovery request can apply to the court for a protective order if it can show that the demand is for privileged material (e.g., a party’s lawyers’ records are not open for inspection) or that the demand was made to harass the opponent. In complex cases between companies, the discovery of documents can run into tens of millions of pages and can take years. Depositions can consume days or even weeks of an executive’s time.

The Pretrial and Trial Phase

Once the discovery period is complete, the case moves on to trial if it has not been settled. Most cases are settled before this stage; perhaps 85 percent of all civil cases end before trial, and more than 90 percent of criminal prosecutions end with a guilty plea.

Pretrial Conference

Depending on the nature and complexity of the case, the court may hold a pretrial conference to clarify the issues and establish a timetable for the upcoming trial, as well as discuss any legal issues or pretrial motions raised in the case. The pretrial conference may also be used as a settlement conference to see if the parties can work out their differences and avoid trial altogether. If the judge believes that settlement is a possibility, the judge will explore the strengths and weaknesses of each party’s case with the attorneys. The parties may decide that it is more prudent or efficient to settle than to risk going to trial.

Trial

If the case does not settle, motions have been fully litigated, and discovery is complete, the case will be scheduled for trial.

Jury Selection

At trial, the first order of business is to select a jury. The judge and sometimes the lawyers are permitted to question the jurors to be sure that they are unbiased. This questioning is known as the voir dire (pronounced vwahr-DEER). This is an important process, and a great deal of thought goes into selecting the jury, especially in high-profile cases. A jury panel can be as few as six persons, or as many as twelve, with alternates selected and sitting in court in case one of the jurors is unable to continue. In a long trial, having alternates is essential; even in shorter trials, most courts will have at least two alternate jurors.

In both criminal and civil trials, each side has opportunities to challenge potential jurors for cause. For example, in the Robinsons’ case against Audi, the attorneys representing Audi will want to know if any prospective jurors have ever owned an Audi, what their experience has been, and if they had a similar problem (or worse) with their Audi that was not resolved to their satisfaction. If so, the defense attorney could well believe that such a juror has a potential for a bias against her client. In that case, she could use a for cause challenge, explaining to the judge the basis for her challenge. The judge, at her discretion, could either accept the for-cause reason or reject it.

Even if an attorney cannot articulate a for-cause reason acceptable to the judge, she may use one of several peremptory challenges that most states (and the federal system) allow. A trial attorney with many years of experience may have a sixth sense about a potential juror and, in consultation with the client, may decide to use a peremptory challenge to avoid having that juror on the panel.

Opening Statements

After the jury is sworn and seated, the plaintiff’s lawyer makes an opening statement, laying out the nature of the plaintiff’s claim, the facts of the case as the plaintiff sees them, and the evidence that the lawyer will present. The defendant’s lawyer may also make an opening statement or may reserve his right to do so at the end of the plaintiff’s case.

Examination of Witnesses

Once opening statements are completed, the plaintiff’s lawyer then calls witnesses and presents the physical evidence that is relevant to her proof, called the plaintiff’s case in chief. The initial questioning of witnesses by the party that calls them to the stand is a direct examination. Testimony at trial is usually far from a smooth narration. The rules of evidence (that govern the kinds of testimony and documents that may be introduced at trial) and the question-and-answer format tend to make the presentation of evidence choppy and difficult to follow.

Anyone who has watched an actual televised trial or a television melodrama featuring a trial scene will appreciate the nature of the trial itself: witnesses are asked questions about a number of issues that may or may not be related, the opposing lawyer will frequently object to the question or the form in which it is asked, and the jury may be sent from the room while the lawyers argue at the bench before the judge.

After direct examination of each witness is over, the opposing lawyer may conduct cross-examination. The formal rules of direct testimony are then relaxed, and the cross-examiner may probe the witness more informally, asking questions that may not seem immediately relevant. The opposing attorney may become harsh trying to cast doubt on a witness’s credibility, trying to trip her up and show that the answers she gave are false or not to be trusted. This use of cross-examination, along with the requirement that the witness must respond to questions that are at all relevant to the questions raised by the case, distinguishes common-law courts from those of authoritarian regimes around the world.

Following cross-examination, the plaintiff’s lawyer may then question the witness again: this is called redirect examination and is used to demonstrate that the witness’s original answers were accurate and to show that any implications otherwise, suggested by the cross-examiner, were unwarranted. The cross-examiner may then engage the witness in recross-examination, and so on. The process usually stops after cross-examination or redirect.

During the trial, the judge’s chief responsibility is to see that the trial is fair to both sides. One big piece of that responsibility is to rule on the admissibility of evidence. A judge may rule that a particular question is out of order—that is, not relevant or appropriate—or that a given document is irrelevant. Where the attorney is convinced that a particular witness, a particular question, or a particular document (or part thereof) is critical to her case, she may preserve an objection to the court’s ruling by saying “exception,” in which case the court stenographer will note the exception, and the attorney may raise these issues on appeal should there be one.

At the end of the plaintiff’s case, the defendant presents his case in chief, following the same procedure just outlined. The plaintiff is then entitled to present rebuttal witnesses, if necessary, to deny or argue with the evidence the defendant has introduced. The defendant in turn may present “surrebuttal” witnesses.

Motion for Directed Verdict

When all testimony has been introduced, either party may ask the judge for a motion for directed verdict—a verdict decided by the judge without advice from the jury. This motion may be granted if the plaintiff has failed to introduce evidence that is legally sufficient to meet her burden of proof or if the defendant has failed to do the same on issues on which she has the burden of proof. (For example, the plaintiff alleges that the defendant owes him money and introduces a signed promissory note. The defendant cannot show that the note is invalid. The defendant must lose the case unless he can show that the debt has been paid or otherwise discharged.)

The defendant can move for a directed verdict at the close of the plaintiff’s case, but the judge will usually wait to hear the entire case until deciding whether to do so. Directed verdicts are not usually granted, since it is the jury’s job to determine the facts in dispute.

Closing Argument

If the judge refuses to grant a directed verdict, each lawyer will then present a closing argument to the jury (or, if there is no jury, to the judge alone). The closing argument is used to tie up the loose ends, as the attorney tries to bring together various seemingly unrelated facts into a story that will make sense to the jury, and make the argument as to why finding in their client’s favor is the correct verdict.

Jury Instruction

After closing arguments, the judge will instruct the jury. The purpose of jury instruction is to explain to the jurors the meaning of the law as it relates to the issues they are considering and to tell the jurors what facts they must determine if they are to give a verdict for one party or the other. Each lawyer will have prepared a set of written instructions that she hopes the judge will give to the jury. These will be tailored to advance her client’s case. Many a verdict has been overturned on appeal because a trial judge has wrongly instructed the jury. The judge will carefully determine which instructions to give and often will use a set of pattern instructions provided by the state bar association or the supreme court of the state. These pattern jury instructions are often safer because they are patterned after language that appellate courts have used previously, and appellate courts are less likely to find reversible error in the instructions. In civil cases, the plaintiff has the burden of proof, typically of proving their claim by a preponderance of the evidence. The jury will be instructed on what this means and how to apply this burden of proof.

Deliberations and Verdict

After all instructions are given, the jury will retire to a private room and discuss the case and the answers requested by the judge for as long as it takes to reach a unanimous verdict. In New Jersey, civil cases are not required to be unanimous. Instead, only 5/6 of the jurors need to agree on a verdict. If the jury cannot reach a decision, this is called a hung jury, and the case will have to be retried. When a jury does reach a verdict, it delivers it in court with both parties and their lawyers present. The jury is then discharged, and control over the case returns to the judge. (If there is no jury, the judge will usually announce in a written opinion his findings of fact and how the law applies to those facts. Juries just announce their verdicts and do not state their reasons for reaching them.)

Posttrial Motions

Once the trial is complete, it is still possible to ask the judge to make a ruling that is contrary to the jury verdict. The losing party at trial is allowed to ask the judge for a new trial or for a judgment notwithstanding the verdict (often called a JNOV, from the Latin non obstante veredicto).

Motion for a New Trial: A motion for a new trial is a request made by a party after a trial has concluded, asking the court to set aside the jury’s verdict and order a new trial. This motion is typically based on perceived errors or irregularities that occurred during the trial that may have influenced the outcome. The party seeking a new trial asserts that some legal error, procedural mistake, or unfairness occurred during the trial process that warrants another opportunity to present their case.

Judgment Notwithstanding the Verdict (JNOV): A JNOV is a motion that challenges the jury’s verdict after trial. It is typically filed by the losing party, arguing that the jury’s verdict was not supported by sufficient evidence or was legally erroneous. In other words, the party contends that even if all the evidence is viewed in the light most favorable to the winning party, no reasonable jury could have reached the verdict that was reached.

Post-trial, a party may renew a prior motion for directed verdict. A judge who decides that a directed verdict is appropriate will usually wait to see what the jury’s verdict is. If it is favorable to the party the judge thinks should win, she can rely on that verdict. If the verdict is for the other party, the judge can grant the motion for JNOV. This is a safer way to proceed because if the judge is reversed on appeal, a new trial is not necessary. The jury’s verdict always can be restored, whereas without a jury verdict (as happens when a directed verdict is granted before the case goes to the jury), the entire case must be presented to a new jury.

Judgment or Order

At the end of a trial, the judge will enter an order that makes findings of fact (often with the help of a jury) and conclusions of law. The judge will also make a judgment as to what relief or remedy should be given. Often it is an award of money damages to one of the parties. The losing party may ask for a new trial at this point or within a short period of time following. Once the trial judge denies any such request, the judgment—in the form of the court’s order—is final.

Appeal

If the loser’s motion for a new trial or a JNOV is denied, the losing party may appeal but must ordinarily post a bond sufficient to ensure that there are funds to pay the amount awarded to the winning party. In an appeal, the appellant aims to show that there was some prejudicial error committed by the trial judge. There will be errors, of course, but the errors must be significant (i.e., not harmless). The basic idea is for an appellate court to ensure that a reasonably fair trial was provided to both sides. Enforcement of the court’s judgment—an award of money, an injunction—is usually stayed (postponed) until the appellate court has ruled. As noted earlier, the party making the appeal is called the appellant, and the party defending the judgment is the appellee (or in some courts, the petitioner and the respondent).

During the trial, the losing party may have objected to certain procedural decisions by the judge. In compiling a record on appeal, the appellant needs to show the appellate court some examples of mistakes made by the judge—for example, having erroneously admitted evidence, having failed to admit proper evidence that should have been admitted, or having wrongly instructed the jury. The appellate court must determine if those mistakes were serious enough to amount to prejudicial error.

Appellate and trial procedures are different. The appellate court does not hear witnesses or accept evidence. It reviews the record of the case—the transcript of the witnesses’ testimony and the documents received into evidence at trial—to try to find a legal error on a specific request of one or both of the parties. The parties’ lawyers prepare briefs (written statements containing the facts in the case), the procedural steps taken, and the argument or discussion of the meaning of the law and how it applies to the facts. After reading the briefs on appeal, the appellate court may dispose of the appeal without argument, issuing a written opinion that may be very short or many pages. Often, though, the appellate court will hear oral argument. (This can be months, or even more than a year after the briefs are filed.) Each lawyer is given a short period of time, usually no more than thirty minutes, to present his client’s case. The lawyer rarely gets a chance for an extended statement because he is usually interrupted by questions from the judges. Through this exchange between judges and lawyers, specific legal positions can be tested and their limits explored.

Depending on what it decides, the appellate court will affirm the lower court’s judgment, modify it, reverse it, or remand it to the lower court for retrial or other action directed by the higher court. The appellate court itself does not take specific action in the case; it sits only to rule on contested issues of law. The lower court must issue the final judgment in the case. As we have already seen, there is the possibility of appealing from an intermediate appellate court to the state supreme court in twenty-nine states and to the U.S. Supreme Court from a ruling from a federal circuit court of appeal. In cases raising constitutional issues, there is also the possibility of appeal to the Supreme Court from the state courts.

Like trial judges, appellate judges must follow previous decisions, or precedent. But not every previous case is a precedent for every court. Lower courts must respect appellate court decisions, and courts in one state are not bound by decisions of courts in other states. State courts are not bound by decisions of federal courts, except on points of federal law that come from federal courts within the state or from a federal circuit in which the state court sits. A state supreme court is not bound by case law in any other state. But a supreme court in one state with a type of case it has not previously dealt with may find persuasive reasoning in decisions of other state supreme courts.

Federal district courts are bound by the decisions of the court of appeals in their circuit, but decisions by one circuit court are not precedents for courts in other circuits. Federal courts are also bound by decisions of the state supreme courts within their geographic territory in diversity jurisdiction cases. All courts are bound by decisions of the U.S. Supreme Court, except the Supreme Court itself, which seldom reverses itself but on occasion has overturned its own precedents.

Not everything a court says in an opinion is a precedent. Strictly speaking, only the exact holding is binding on the lower courts. A holding is the theory of the law that applies to the particular circumstances presented in a case. The courts may sometimes declare what they believe to be the law with regard to points that are not central to the case being decided. These declarations are called dicta (the singular, dictum), and the lower courts do not have to give them the same weight as holdings.

Execution

When a party has no more possible appeals, it usually pays up voluntarily. If not voluntarily, then the losing party’s assets can be seized or its wages or other income garnished to satisfy the judgment. This is called executing the judgment. If the final judgment is an injunction, failure to follow its dictates can lead to a contempt citation, with a fine or jail time imposed.

Student Video of the Litigation Timeline

Footnotes

Footnotes

¹ By “prima facie case,” the court means a case in which the plaintiff has presented all the basic elements of the cause of action alleged in the complaint. If one or more elements of proof are missing, then the plaintiff has fallen short of establishing a prima facie case, and the case should be dismissed (usually on the basis of a directed verdict).

² Note the division of labor here: questions of law are for the judge, while questions of “fact” are for the jury. Here, “foreseeability” is a fact question, while the judge retains authority over questions of law. The division between questions of fact and questions of law is not an easy one, however.