Filing a lawsuit can be a scary and overwhelming process. Every lawsuit is slightly different and unique. Yet, certain terminology remains constant. In this article, you will find the language that is typically used as a lawsuit progresses. This article is NOT extensive, but it will give you an outline to follow if you find yourself involved in a lawsuit.
A lawsuit begins by filing a complaint or petition. This initial pleading contains allegations, a description of the legal claims, and a request for relief.
After served with the initial pleading, the defendant must respond to it. A defendant has a couple of options at this stage. Typically, the defendant files an answer. This answer responds to each allegation of the complaint and may set forth one or more defenses. Under the rules of civil procedure, “affirmative defenses” must be asserted in a responsive pleading or a motion to dismiss. Otherwise, they will be waived.
A defendant may move to “dismiss” the complaint/lawsuit on certain grounds. A defendant also may move for “a more definite statement.”
Discovery makes up a large part of most lawsuits in Florida because courts do not like a trial “by ambush.” Thus, complete discovery is encouraged and mandated. In practice, discovery disputes occupy a large amount of attorney and judge time. Generally, discovery allows “any matter, not privileged, that is relevant to the subject matter of the pending action ….” In this context, “relevance” has a very broad meaning. Information is discoverable if it “appears reasonably calculated to lead to the discovery of admissible evidence.”
The goals of discovery are several and include:
Knowing what the other party will present at trial (to avoid any nasty surprises).
Obtaining evidence to support your claims and/or defenses or to rebut the opposing party’s claims and/or defenses.
Discovery allows a party to obtain information about documents the other side intends to introduce. Discovery also helps find what that party’s experts and other witnesses will say and how that party intends to prove its claims and/or defenses.
A “deposition” is a videotaped or audiotaped oral examination of a person under oath. The person being deposed may need to produce documents during the examination. The other side may use depositions of parties for any purpose.
may be used by the other side for any purpose;
may be taken by telephone;
can impeach later testimony;
can be taken before the filing of a civil action or during an appeal to preserve testimony; and
may or may not be transcribed, depending upon the wishes of the parties.
“Interrogatories” are another common discovery method. Interrogatories are questions served on a party who must respond within thirty days. Although the rules allow the deposition of anyone, interrogatories for admission may be directed only to parties.
See Fla. R. Civ. P. 1.340(a) for more information about interrogatories.
Production of Documents and Things by Parties
Production of Documents and Things by Nonparties
Request for Admissions
Important Motion: Summary Judgment
After filing the lawsuit, either party may move for summary judgment, which is subject to certain time restrictions. A motion for summary judgment can challenge the legal sufficiency of the claim for relief and can also attack the factual support for the claim, but only if nothing else is an issue.
A summary judgment motion may be directed to any pleading, including the complaint, counterclaim, crossclaim, etc. To win summary judgment, the moving party must show that the nonmoving party cannot present enough evidence to prove a “genuine issue on any material fact."
Affidavits can support or oppose summary judgments, so long as they are made on personal knowledge and set forth admissible facts. The parties also may rely upon depositions and answers to interrogatories. However, in evaluating a motion for summary judgment, a trial judge may not weigh the evidence or assess credibility. The factfinder of the trial weighs these issues.
Mediation is “a process whereby a mediator acts to encourage and help the resolution of a dispute between two or more parties.” It is an informal process to help the disputing parties reach an acceptable and voluntary agreement. The parties may mediate a case, whether by order of the court or by agreement of the parties.
Offers of Judgment, Proposals for Settlement, and Demands for Judgment
A party also may submit a written “offer of judgment” that offers to settle a claim on specific terms. An offer or a demand may be withdrawn in writing at any time before its acceptance. The recipient has thirty days to accept the offer in writing. This decision is not without risk. A plaintiff who does not get at least 75 percent will be responsible for the defendant’s costs and fees.
Similarly, a defendant handles the costs and fees of a plaintiff who receives one at least 25 percent greater. In both situations, the fees and costs are calculated from the date the offer was served. Given the possibility of extra costs, offers for judgment provide a reason to think about settlement offers seriously.
Although the majority of civil cases are resolved without a trial, many still proceed to trial. Once all motions directed to the last pleading have been resolved or, at least, within twenty days of the last pleading, the party is ready for court. If the parties have not mediated the case, the court may order mediation. Otherwise, if the court concludes that the case is ready for trial, a trial date will be scheduled.
See Fla. R. Civ. P. 1.440(a), (b), (c) for more information about Setting Action for Trial.
This article offers a general overview of the route of a civil lawsuit. Of course, every lawsuit is different and the steps often vary dramatically. Although various components of the pretrial process are beyond the scope of this article, proceedings are a valuable tool. Hopefully, this article will help demystify the civil process.
If you have additional questions about the civil litigation process, call us at (407) 500-EZPZ (3979) today.
Disclaimer: This column does not create a client-attorney relationship and is not intended as legal advice. Should you need any legal advice, speak to an attorney who is skilled in the area and jurisdiction you require.