Lawsuit

A lawsuit is a proceeding by a party or parties against another in the civil court of law.[1] The
archaic term "suit in law" is found in only a small number of laws still in effect today. The
term "lawsuit" is used in reference to a civil action brought by a plaintiff (a party who claims
to have incurred loss as a result of a defendant's actions) demands a legal or equitable
remedy from a court. The defendant is required to respond to the plaintiff's complaint. If the
plaintiff is successful, judgment is in the plaintiff's favor, and a variety of court orders may be
issued to enforce a right, award damages, or impose a temporary or permanent injunction to
prevent an act or compel an act. A declaratory judgment may be issued to prevent future
legal disputes.

A lawsuit may involve dispute resolution of private law issues between individuals, business
entities or non-profit organizations. A lawsuit may also enable the state to be treated as if it
were a private party in a civil case, as plaintiff, or defendant regarding an injury, or may
provide the state with a civil cause of action to enforce certain laws.

The conduct of a lawsuit is called litigation. The plaintiffs and defendants are called litigants
and the attorneys representing them are called litigators.[2] The term litigation may also refer
to a criminal procedure.

Rules of procedure and complications

Rules of criminal or civil procedure govern the conduct of a lawsuit in the common law
adversarial system of dispute resolution. Procedural rules are constrained and informed by
separate statutory laws, case laws, and constitutional provisions that define the rights of the
parties to a lawsuit (see especially due process), though the rules generally reflect this legal
context on their face. The details of the procedure differ greatly from jurisdiction to
jurisdiction, and often from court to court even within the same jurisdiction. These rules of
the particular procedures are very important for litigants to know, because the litigants are
the ones who dictate the timing and progression of the lawsuit. Litigants are responsible to
obtain the suited result and the timing of reaching this result. Failure to comply with the
procedural rules may result in serious limitations that can affect the ability of one to present
claims or defenses at any subsequent trial, or even promote the dismissal of the lawsuit
altogether.

Though the majority of lawsuits are settled before ever reaching trial,[3] they can still be very
complicated to litigate. This is particularly true in federal systems, where a federal court may
be applying state law (e.g. the Erie doctrine, for example in the United States), or vice versa. It
is also possible for one state to apply the law of another in cases where additionally it may
not be clear which level (or location) of court actually has jurisdiction over the claim or
personal jurisdiction over the defendant, or whether the plaintiff has standing to participate in
a lawsuit. About 98 percent of civil cases in the United States federal courts are resolved
without a trial. Domestic courts are also often called upon to apply foreign law, or to act upon
foreign defendants, over whom they may not even have the ability to even enforce a judgment
if the defendant's assets are theoretically outside their reach.

Lawsuits can become additionally complicated as more parties become involved (see
joinder). Within a "single" lawsuit, there can be any number of claims and defenses (all based
on numerous laws) between any number of plaintiffs or defendants. Each of these
participants can bring any number of cross claims and counterclaims against each other, and
even bring additional parties into the suit on either side after it progresses. In reality however,
courts typically have some power to sever claims and parties into separate actions if it is
more efficient to do so. A court can do this if there is not a sufficient overlap of factual issues
between the various associates, separating the issues into different lawsuits.

The official ruling of a lawsuit can be somewhat misleading because post-ruling outcomes
are often not listed on the internet. For example, in the case of William J. Ralph Jr. v. Lind-
Waldock & Company[4] (September 1999), one would assume that Mr. Ralph lost the case
when in fact, upon review of the evidence, it was found that Mr. Ralph was correct in his
assertion that improper activity took place on the part of Lind-Waldock, and Mr. Ralph settled
with Lind-Waldock.[5]

Cases such as this illustrate the need for more comprehensive information than mere
internet searches when researching legal decisions. While online searches are appropriate
for many legal situations, they are not appropriate for all.

Procedure
The following is a generalized description of how a lawsuit may proceed in a common law
jurisdiction:

Pleading

A lawsuit begins when a complaint or petition, known as a pleading,[6] is filed with the court.
A complaint should explicitly state that one or more plaintiffs seek(s) damages or equitable
relief from one or more stated defendants, and also should state the relevant factual
allegations supporting the legal claims brought by the plaintiffs. As the initial pleading, a
complaint (http://www.americanbar.org/groups/public_education/resources/law_related_edu
cation_network/how_courts_work/pleadings.html/) is the most important step in a civil
case because a complaint sets the factual and legal foundation for the entirety of a case.
While complaints and other pleadings may ordinarily be amended by a motion with the court,
the complaint sets the framework for the entire case and the claims that will be asserted
throughout the entire lawsuit.

It is likewise important that the plaintiff select the proper venue with the proper jurisdiction to
bring the lawsuit. The clerk of a court signs or stamps the court seal upon a summons or
citation, which is then served by the plaintiff upon the defendant, together with a copy of the
complaint. This service notifies the defendants that they are being sued and that they are
limited in the amount of time of a reply. The service provides a copy of the complaint in order
to notify the defendants of the nature of the claims. Once the defendants are served with the
summons and complaint, they are subject to a time limit to file an answer stating their
defenses to the plaintiff's claims, which includes any challenges to the court's jurisdiction,
and any counterclaims they wish to assert against the plaintiff.

In a handful of jurisdictions (notably, the U.S. state of New York) a lawsuit begins when one or
more plaintiffs properly serve a summons and complaint upon the defendants. In such
jurisdictions, nothing must be filed with the court until a dispute develops requiring actual
judicial intervention.

If the defendant chooses to file an answer within the time permitted, the answer must
address each of the plaintiffs' allegations. The defendant has three choices to make, which
include either admitting to the allegation, denying it, or pleading a lack of sufficient
information to admit or deny the allegation. Some jurisdictions, like California and Florida,
still authorize general denials of each and every allegation in the complaint. At the time the
defendant files an answer, the defendant also raises all "affirmative" defenses. The defendant
may also assert counterclaims for damages or equitable relief against the plaintiff. For
example, in the case of "compulsory counterclaims," the defendant must assert some form of
counterclaim or risk having the counterclaim barred in any subsequent proceeding. In the
case of making a counterclaim, the defendant is making a motion directed towards the
plaintiff claiming that he/she was injured in some way or would like to sue the plaintiff. The
plaintiff in this example would then receive some amount of time to make a reply to this
counterclaim. The defendant may also file a "third party complaint", which is the defendant's
privilege to join another party or parties in the action with the belief that those parties may be
liable for some or all of the plaintiff's claimed damages. An answer from the defendant in
response to the claims made against him/her, can also include additional facts or a so-called
"excuse" for the plead. Filing an answer "joins the cause" and moves the case into the pre-trial
phase.

Instead of filing an answer within the time specified in the summons, the defendant can
choose to dispute the validity of the complaint by filing a demurrer (in the handful of
jurisdictions where that is still allowed) or one or more "pre-answer motions," such as a
motion to dismiss. It is important that the motion be filed within the time period specified in
the summons for an answer. If all of the above motions are denied by the trial court, and the
defendant loses on all appeals from such denials (if that option is available), and finally the
defendant must file an answer.

Usually the pleadings are drafted by a lawyer, but in many courts persons can file papers and
represent themselves, which is called appearing pro se. Many courts have a pro se clerk to
assist people without lawyers.

Pretrial discovery

A pretrial discovery can be defined as "the formal process of exchanging information

between the parties about the witnesses and evidence they’ll present at trial" and allows for
the evidence of the trial to be presented to the parties before the initial trial begins.[7] The
early stages of the lawsuit may involve initial disclosures of evidence by each party and
discovery, which is the structured exchange of evidence and statements between the parties.
Discovery is meant to eliminate surprises, clarify what the lawsuit is about, and also to make
the parties decide if they should settle or drop frivolous claims and/or defenses. At this point
the parties may also engage in pretrial motions to exclude or include particular legal or
factual issues before trial.

There is also the ability of one to make an under oath statement during the pretrial, also
known as a deposition. The deposition can be used in the trial or just in the pretrial, but this
allows for both parties to be aware of the arguments or claims that are going to be made by
the other party in the trial. It is notable that the depositions can be written or oral.[8]
At the close of discovery, the parties may either pick a jury and then have a trial by jury or the
case may proceed as a bench trial. A bench trial is only heard by the judge if the parties waive
a jury trial or if the right to a jury trial is not guaranteed for their particular claim (such as
those under equity in the U.S.) or for any lawsuits within their jurisdiction.

Resolution

Usually, lawsuits end in a settlement, with an empirical analysis finding that less than 2% of
cases end with a trial.[9] It is sometimes said that 95% of cases end in settlement; few
jurisdictions report settlements, but empirical analysis suggests that the settlement rate
varies by type of lawsuit, with torts settling around 90% of the time and overall civil cases
settling 50% of the time; other cases end due to default judgment, lack of a valid claim, and
other reasons.[9]

At trial, each person presents witnesses and the evidence collected is recorded. After this
occurs, the judge or jury renders their decision. Generally speaking, the plaintiff has the
burden of proof in making his claims, however, the defendant may have the burden of proof
on other issues, such as affirmative defenses. The attorneys are held responsible in devising
a trial strategy that ensures they meet the necessary elements of their case or (when the
opposing party has the burden of proof) to ensure the opponent will not be able to meet his
or her burden.

There are numerous motions that either party can file throughout the lawsuit to terminate it
"prematurely"—before submission to the judge or jury for final consideration. These motions
attempt to persuade the judge, through legal argument and sometimes accompanying
evidence, that there is no reasonable way that the other party could legally win and therefore
there is no sense in continuing with the trial. Motions for summary judgment, for example,
can usually be brought before, after, or during the actual presentation of the case. Motions
can also be brought after the close of a trial to undo a jury verdict contrary to law or against
the weight of the evidence, or to convince the judge to change the decision or grant a new
trial.

Also, at any time during this process from the filing of the complaint to the final judgment, the
plaintiff may withdraw the complaint and end the whole matter, or the defendant may agree
to a settlement. If the case settles, the parties might choose to enter into a stipulated
judgment with the settlement agreement attached, or the plaintiff may simply file a voluntary
dismissal, so that the settlement agreement is never entered into the court record.

The decisions that the jury makes are not put into effect until the judge makes a judgment,
which is the approval to have this trial information be filed in public records. In a civil case,
the judge is allowed at this time to make changes to the verdict that the jury came up with by
either adding on or reducing the punishment. In criminal cases the situation is a little
different, because in this case the judge does not have the authority to change the jury
decision.

Appeal

After a final decision has been made, either party or both may appeal from the judgment if
they believe there had been a procedural error made by the trial court. It isn't necessarily an
automatic appeal after every judgment has been made, however, if there is a legal basis for
the appeal, then one has the right to do so. The prevailing party may appeal, for example, if
they wanted a larger award than was granted. The appellate court (which may be structured
as an intermediate appellate court) and/or a higher court then affirms the judgment, declines
to hear it (which effectively affirms it), reverses—or vacates and remands. This process
would then involve sending the lawsuit back to the lower trial court to address an unresolved
issue, or possibly request for a whole new trial. Some lawsuits go up and down the appeals
ladder repeatedly before final resolution.

The appeal is a review for errors rather than a new trial, so the appellate court will defer to the
discretion of the original trial court if an error is not clear. The initial step in making an appeal
consists of the petitioner filing a notice of appeal and then sending in a brief, a written
document stating reason for appeal, to the court. Decisions of the court can be made
immediately after just reading the written brief, or there can also be oral arguments made by
both parties involved in the appeal. The appellate court then makes the decision about what
errors were made when the law was looked at more closely in the lower court. There were no
errors made, the case would then end, but if the decision was reversed, the appellate court
would then send the case back down to the lower court level. There, a new trial will be held
and new information taken into account.

Some jurisdictions, notably the United States, but prevalent in many other countries, prevent
parties from relitigating the facts on appeal, due to a history of unscrupulous lawyers
deliberately reserving such issues in order to ambush each other in the appellate courts (the
"invited error" problem). The idea is that it is more efficient to force all parties to fully litigate
all relevant issues of fact before the trial court. Thus, a party who does not raise an issue of
fact at the trial court level generally cannot raise it on appeal.

When the lawsuit is finally resolved, or the allotted time to appeal has expired, the matter is
res judicata, meaning the plaintiff may not bring another action based on the same claim
again. In addition, other parties who later attempt to re-litigate a matter already ruled on in a
previous lawsuit will be estopped from doing so.
Enforcement

When a final judgment is entered, the plaintiff is usually barred under the doctrine of res
judicata from relitigating any of the issues, even under different legal theories. Judgments are
typically a monetary award. If the defendant fails to pay, the court has various powers to
seize any of the defendant's assets located within its jurisdiction, such as:

Writ of execution

Bank account garnishment

Liens

Wage garnishment

If all assets are located elsewhere, the plaintiff must file another suit in the appropriate court
to seek enforcement of the other court's previous judgment. This can be a difficult task when
crossing from a court in one state or nation to another, however, courts tend to grant each
other respect when there is not a clear legal rule to the contrary. A defendant who has no
assets in any jurisdiction is said to be "judgment-proof."[10] The term is generally a
colloquialism to describe an impecunious defendant.

Indigent judgment-proof defendants are no longer imprisoned; debtor's prisons have been
outlawed by statute, constitutional amendment, or international human rights treaties in the
vast majority of common law jurisdictions.

Research in law, economics and management

Scholars in law, economics and management have studied why firms involved in a dispute
choose between private dispute resolution—such as negotiation, mediation, and arbitration—
and litigation.[11][12]

Etymology

During the 18th and 19th centuries, it was common for lawyers to speak of bringing an
"action" at law and a "suit" in equity. An example of that distinction survives today in the
codified text of the Third Enforcement Act. The fusion of common law and equity in England
in the Judicature Acts of 1873 and 1875 led to the collapse of that distinction, so it became
possible to speak of a "lawsuit." In the United States, the Federal Rules of Civil Procedure
(1938) abolished the distinction between actions at law and suits in equity in federal practice,
in favor of a single form referred to as a "civil action."
In England and Wales the term "claim" is far more common; the person initiating proceedings
is called the claimant.

American terminology is slightly different, in that the term "claim" refers only to a particular
count or cause of action in a lawsuit. Americans also use "claim" to describe a demand filed
with an insurer or administrative agency. If the claim is denied, then the claimant,
policyholder, or applicant files a lawsuit with the courts to seek review of that decision, and
from that point forward participates in the lawsuit as a plaintiff. In other words, the terms
"claimant" and "plaintiff" carry substantially different connotations of formality in American
English, in that only the latter risks an award of costs in favor of an adversary in a lawsuit.

In medieval times, both "action" and "suit" had the approximate meaning of some kind of legal
proceeding, but an action terminated when a judgment was rendered, while a suit also
included the execution of the judgment.

Financing

Particularly in the United States, plaintiffs and defendants who lack financial resources for
litigation or other attorney's fees may be able to obtain legal financing. Legal financing
companies can provide a cash advance to litigants in return for a share of the ultimate
settlement or award. If the case ultimately loses, the litigant does not have to pay any of the
money funded back. Legal financing is different from a typical bank loan in that the legal
financing company does not look at credit history or employment history. Litigants do not
have to repay the cash advance with monthly payments, but do have to fill out an application
so that the legal financing company can review the merits of the case.

Legal financing can be a practical means for litigants to obtain financing while they wait for a
monetary settlement or an award in their personal injury, workers' compensation, or civil
rights lawsuit. Often, plaintiffs who were injured or forced to leave their jobs still have
mortgages, rent, medical expenses, or other bills to pay. Other times, litigants may simply
need money to pay for the costs of litigation and attorneys' fees, and for this reason, many
litigants turn to reputable legal financing companies to apply for a cash advance to help pay
for bills.

Defendants, civil rights organizations, public interest organizations, and government public
officials can all set up an account to pay for litigation costs and legal expenses. These legal
defense funds can have large membership counts where the members contribute to the fund.
Unlike legal financing from legal financing companies, legal defense funds provide a separate
account for litigation rather than a one-time cash advancement, nevertheless, both are used
for purposes of financing litigation and legal costs.
There was a study conducted in the Supreme Court Economic Review that shows why
litigation financing can be practical and beneficial to the overall court system and lawsuits
within the court. This study concluded that the new rules that were set for litigation financing
actually did produce more settlements. Under conservative rules, there tended to be fewer
settlements, however under the older rules they tended to be larger on average.[13]

Legal financing can become an issue in some cases, varying from case to case and person to
person. It can be beneficial in many situations, however also detrimental in others.

See also

Look up lawsuit or actio popularis in Wiktionary, the free dictionary.

Wikiquote has quotations related to Lawsuit.

Actio popularis

Civil law

Compensation culture

Divorce

List of environmental lawsuits

Private prosecution

Restorative justice

Strategic lawsuit against public participation

Hearing (law)

Legal case

Trial

Notes

References

1. Brian A. Garner, ed. (2014). "Suit". Black's Law Dictionary (10th ed.). West.

2. Abram, Lisa L. (2000). "Civil Litigation". The Official Guide to Legal Specialties (https://archive.org/de
tails/officialguidetol00abra/page/71) . Chicago: National Association for Law Placement, Harcourt
Legal & Professional Publications. p. 71 (https://archive.org/details/officialguidetol00abra/page/7
1) . ISBN 978-0-15-900391-6.
 3. Matthews, Joseph L. (2001). The Lawsuit Survival Guide (https://archive.org/details/lawsuitsurvival
g00matt) . Nolo.com. ISBN 0-87337-760-5.

4. "WILLIAM J. RALPH, JR., Complainant, v. LIND-WALDOCK & COMPANY and JEFFREY KUNST,
Respondents" (http://www.cftc.gov/ucm/groups/public/@lrdispositions/documents/legalpleading/i
dralph092100.pdf) (PDF). Cftc.gov. Retrieved 3 October 2017.

5. "WILLIAM J. RALPH, JR., Complainant, v. LIND-WALDOCK & COMPANY, Respondent" (http://www.cft

c.gov/ucm/groups/public/@lrdispositions/documents/legalpleading/idralph32402.pdf) (PDF).
Cftc.gov. Retrieved 3 October 2017.

6. "Pleading: AxonHCS" (https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=

s1eAEN1PR1BT04xNmrDrcw==) . New York State Unified Court System. Retrieved December 14,
2018.

7. "How Courts Work: Steps in a Trial - Discovery" (http://www.americanbar.org/groups/public_educati

on/resources/law_related_education_network/how_courts_work/discovery.html/) . American Bar
Association. Retrieved June 23, 2015.

8. "Glossary D: Deposition" (http://www.americanbar.org/groups/public_education/resources/law_relat

ed_education_network/glossary/glossary_d.html#deposition) . American Bar Association.
Archived (https://web.archive.org/web/20150624013431/http://www.americanbar.org/groups/publi
c_education/resources/law_related_education_network/glossary/glossary_d.html) from the
original on 24 June 2015. Retrieved June 23, 2015.

9. Barkai, John; Kent, Elizabeth (2014-01-01). "Let's Stop Spreading Rumors About Settlement and
Litigation: A Comparative Study of Settlement and Litigation in Hawaii Courts". Rochester, NY: Social
Science Research Network. SSRN 2398550 (https://ssrn.com/abstract=2398550) .

10. Dionne, Georges (1992). Foundations of Insurance Economics: Readings in Economics and Finance.
Springer. ISBN 0-7923-9204-3.

11. Bebchuk, Lucian (1984). "Litigation and settlement under imperfect information". RAND Journal of
Economics. 15 (3): 404–415. doi:10.2307/2555448 (https://doi.org/10.2307%2F2555448) .
JSTOR 2555448 (https://www.jstor.org/stable/2555448) .

12. Richman, Barak (2004). "Firms, courts, and reputation mechanisms: Toward a positive theory of
private ordering" (https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1928&context=facul
ty_scholarship) . Columbia Law Review. 104 (8): 2328–2368. doi:10.2307/4099361 (https://doi.or
g/10.2307%2F4099361) . JSTOR 4099361 (https://www.jstor.org/stable/4099361) .
S2CID 43455841 (https://api.semanticscholar.org/CorpusID:43455841) .

13. Inglis, Laura; McCabe, Kevin (2010). "The Effects of Litigation Financing Rules on Settlement Rates".
Supreme Court Economic Review. University of California, Santa Barbara. 18 (1): 135–15.
doi:10.1086/659984 (https://doi.org/10.1086%2F659984) . JSTOR 10.1086/659984 (https://www.j
stor.org/stable/10.1086/659984) . S2CID 154317478 (https://api.semanticscholar.org/CorpusID:1
54317478) .
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