Civil litigation, a primer |

Civil litigation, a primer

Civil litigation can arise in many contexts. People who find themselves in the position of having to bring or defend a lawsuit will encounter an esoteric process. These processes have been developed over hundreds of years, and 99 times out of 100, there is a good reason for a particular process, but that doesn’t mean that the processes are easy to understand.

Hopefully, this article will provide a little insight into the processes and procedures that apply if you find yourself involved in a civil case (discussion of other types of cases, such as domestic relations, probate and criminal proceedings have their own processes and will need to be discussed in other articles).

As a preliminary matter, much can be understood simply by knowing what type of court you are (or should be) in. Small claims courts and county courts are typically the tribunals for matters with relatively small amounts of money at issue. Small claims courts are ideal for matters involving less than $7,500 where the claim can be prosecuted and defended without the assistance (and cost) of a lawyer. The Colorado district courts in each county are the courts of general jurisdiction, where cases ranging from small property disputes to complex torts are litigated. The procedures there tend to be more complex and exacting than those in small claims or county courts. Federal district courts are similar to state courts, but they are available only if there is an issue of federal law or if the dispute extends across state lines.

Each tribunal has so-called jurisdictional requirements that limit the types of cases that can proceed before it. Since I can’t address the numerous types of courts and cases here, the remainder of this column will address the procedures typically encountered in state and federal civil cases.

Civil cases typically have three phases: pleading, discovery and trial.

During the pleading phase, a complaint is filed with the court and served on the defendant, who must respond to the complaint or risk default. In his response, a defendant has an opportunity to make counterclaims against the plaintiff and to assert defenses. The pleadings frame the issues of the case, and when the pleadings are complete, the case is said to be “at issue.”

Once the case is at issue, discovery begins. During discovery, the parties provide to each other documents and items of proof relating to the case. They are permitted to demand that the other party answer questions, in writing and under oath, to admit or deny certain facts or circumstances, and to produce to the other party documents or things. Depositions are also conducted during discovery, where a party or other persons with information relating to the case will be interviewed on the record and under oath.

If discovery is conducted properly, most of the information to be presented at trial will be known by the parties beforehand. Seldom is the “smoking gun” produced at trial and admitted into evidence to the surprise of the parties.

Discovery allows the parties and their counsel to evaluate the strengths and or weaknesses of their cases. If there is no material fact in question (i.e., it is clear from the incontrovertible evidence revealed during discovery that certain facts are settled), so-called “summary judgment” can made by the court without a trial.

In any event, prior to trial, the court will likely order the parties to enter into mediation. The information gleaned through discovery may help the parties and their counsel negotiate intelligently during mediation.

Most cases are settled or otherwise resolved prior to trial. People who study these issues tend to think that parties reach more satisfactory results when they mediate successfully, rather than when they let a judge or a jury split the baby, so litigants are encouraged to engage in settlement discussions in good faith. Sometimes cases can’t be settled through negotiations or by summary judgment, requiring a trial.

I suspect that people generally have a good idea of what goes on at trial, so I won’t go into trial here. Suffice to say that the parties can expect to devote substantial financial and emotional resources at trial. The stakes are high, and the margin for error is narrow. The party who can afford an attorney at trial but who represents himself truly has a fool for a client.

At the end of the trial, the prevailing party will get a judgment, which will entitle the winner to money or some other relief. Appeals can be made, typically, if a party believes the court made an error of law. An appeal, alone, won’t stop collection on the judgment.

The court is not in charge of taking money from the loser and giving it to the winner, so enforcing a judgment could very easily be considered a fourth phase of litigation. Sometimes the judgment debtor will write a check to the prevailing party, but oftentimes, subsequent legal proceedings will be needed for the winner to collect. Sometimes the losing party will get a discharge in bankruptcy and the winner won’t get anything.

Of course, much goes on throughout a litigation case, much of which cannot be sufficiently addressed in an article like this. Legal counsel is always beneficial in navigating the system.

That being said, litigation is not the ideal way for people to resolve their disputes. But it’s a good thing that the courts are available to us. Although litigation can be expensive and wasteful, when compared to the brutal alternatives, civil proceedings are the best method society has to resolve the inevitable instances when disputes arise between us that cannot be resolved amicably through other lawful means.

Matthew Trinidad is a transaction lawyer (meaning he doesn’t often go to court, but he can refer you to someone who does) with Karp Neu Hanlon PC. He can be reached at 970-945-2261.

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