Civil Litigation

Civil litigation covers lawsuits in all areas of civil law. For example: Personal Injury, Real Estate law, and Business law, which can include incorporating a business, as well as a law suit between shareholders and directors over dividends. Construction law may include getting a contractor's license, as well as foreclosing a mechanics lien. My practice covers litigation in all these areas of civil law.

What is a lawsuit?

A lawsuit is also called an action or a case. It starts with a complaint. A complaint is a statement of the plaintiffs’ claims against the defendant. The plaintiff and defendant are called parties. Complaints usually start with something like, "Plaintiff alleges as follows."

Then there are introductory paragraphs identifying the parties, and showing that the complaints been filed in the right place. The right place is usually the court in the county where the defendant lives. This is called venue. If the plaintiff filed his complaint in the right court, venue is proper. If filed in the wrong court, venue is improper and the defendant can get the case transferred to the right court.

After the introductory paragraphs, there appear the claims or allegations of what the defendants have done to the plaintiff. In state court the claims are called causes of action. In federal court they’re just called claims. Each cause of action must be alleged separately, and each must state certain essential facts entitling the plaintiff to get something from the defendant, usually money.

Elements of the Cause of Action

The essential facts are called the elements of the cause of action. In other words, in order to get the court to order the defendant to pay him money, the plaintiff has to allege (and eventually prove) a specific set of facts. Defendant then files and serves his answer on plaintiff. If plaintiff leaves out one of the elements, defendant can ask the court to throw out the complaint.

Discovery - Interrogatories, Admission, Deposition

Discovery:

Each party finds out exactly what the other party was claiming, learns all the facts related to the dispute, examines all the paperwork, and talks to all the witnesses who might testify about what they had seen or heard.

Interrogatories:

Interrogatories are written questions sent to the other side, which must be answered within 30 days.

Depositions:

In a deposition, a lawyer sits down in a conference room with a party or a witness, in front of a court reporter, and asks questions. All the questions and answers are taken down by the court reporter. Depositions give attorneys the opportunity to see how witnesses behave and to gauge their credibility prior to trial. They frequently provide useful information for trial.

The Choices in Resolving Legal Disputes

Mediation is voluntary. Even if you have previously agreed to mediate before arbitrating or litigating, a judge can’t order you to mediate if you change your mind. On the other hand, if your agreement gives attorney fees to the winner in arbitration or a lawsuit, the Judge may also take the fees away if the winner has refused to mediate first. A mediator does not decide a case and make a ruling. Instead mediators help parties resolve their differences peacefully by mutual agreement.

If the parties have a written agreement to arbitrate, a judge can order them to arbitration, which can be binding or non-binding. The arbitrator does decide the case and does make a ruling, called an Award. If the parties have agreed to binding arbitration, the winner can easily turn the Award into an enforceable court judgment, which cannot be appealed. But if they have agreed only to non-binding arbitration and one party refuses to abide by the Award, it’s unenforceable and useless. Most arbitration is therefore binding.

Court Litigation

If the parties cannot agree to arbitrate, their only recourse is the courts and lawsuits.

Contract Law and Civil Law

Contract law generally deals with broken agreements and the resulting monetary loss. The court first determines whether the agreement has been broken. If it has, the court then determines the amount of monetary loss and renders a judgment in that amount against the party who broke the agreement. Breaking a contract is not a crime.

Personal injury is known as a tort. It involves conduct that resulted in hurting someone physically. Damages in personal injury cases include reimbursement for medical bills and compensation for pain and suffering. Liability depends on proof of negligence, otherwise known as carelessness. Tort law also covers property rights, including title disputes, easement disputes, boundary line disputes, and simple trespass.

And then there is something called Equity, where the objective is not money, but making somebody do something or refrain from doing something, such as maintaining a nuisance. In this case a judgment comes in the form of an injunction. Therefore, equity is not a third variety of civil law, but an alternative remedy available in contract law or tort law when a money judgment can’t resolve the dispute satisfactorily.

There are two sources of civil law. The first is published decisions of judges based on long standing and commonly accepted customs and practices combined with long standing and commonly accepted ideas of right and wrong. This source traces its development back to medieval England, and the rules stated in such decisions are called common law.

The other source of civil law is the legislative enactment and publication of rules not defining criminal conduct. These rules are called civil statutes, and taken together constitute civil statutory law. You might think of civil cases involving civil statutory law as contract cases.