Overview of Pretrial Procedures
At the outset, it is important to note that most lawsuits are settled before they every make it to trial. Because so many suits are filed, courts encourage settlement of issues by alternative means; some require mediation between the parties. If a lawsuit is the only option, the following is an overview of the pretrial procedures required.
The first thing the plaintiff (the person suing) must do is to file a COMPLAINT, the document that describes the reason for the suit, including alleged facts and the law on which the suit is based. The complaint involves allegations only, so proof is not required in this document. The complaint is organized as follows:
- Caption Name of court, including division if applicable, followed by the parties (plaintiff v. defendant); also include 'Case No.' followed by a space for the court clerk to fill in the number assigned to the case
- Cause of Action factual and legal basis for the claim; title the document "COMPLAINT"; follow this with 'The plaintiff alleges as follows: and numbered paragraphs, each setting out one fact or piece of information, including:
o Damages description of losses (monetary or otherwise)
o Who identification of the party who allegedly caused the damages (for the defendant, the 'who' is the plaintiff bringing the suit)
o Where and When location and time (as specific as possible, including date and hour) when the damages occurred
o Theory of Law explanation of what law you believe supports your claim
- Prayer Wherefore, plaintiff respectfully prays the court followed by the damages requested (how you would like the court to resolve the matter)
- Certificate of Service signed acknowledgment that a copy of the document was delivered to the defendant
The complaint is filed with the clerk of the court. The clerk will be able to tell you how many copies are necessary, the amount of the filing fee, and any other requirements.
The clerk will also provide a SUMMONS form. A summons is a document informing the defendant (the person being sued) that a suit is being brought against him/her. The clerk will stamp the form and a copy of your complaint, and you are required to provide the defendant with the stamped documents.
The documents should be mailed via registered mail as proof that they were sent; with this proof, if the defendant fails to respond or appear in court, he/she automatically loses and the plaintiff prevails.
The defendant (the person being sued) files an ANSWER within the time indicated by the summons. In the answer, the defendant answers each numbered allegation by admitting or denying each. If the defendant fails to deny an allegation, the court will deem the statement true. An answer need not be formally filed with the court; it is sufficient to return the answer to the plaintiff or his/her attorney.
An answer is organized as follows:
- Caption same as caption on the original complaint
- Response each allegation set out in the complaint should be addressed with an admission, denial, and explanation if necessary
- Certificate of Service signed acknowledgment that the answer was returned to the plaintiff or his/her attorney
The defendant also has the option of filing a MOTION challenging the plaintiff's suit. Common motions include challenges to the court in which the complaint was filed or the manner in which the complaint and summons were served. Motions may be filed without first providing an answer to the plaintiff's complaint.
Additionally, a defendant may file a COUNTERCLAIM within the answer, which is an allegation that the plaintiff was in fact at fault.
Amending a Complaint
If it is necessary to amend a complaint, a new document must be filed in the same manner the initial complaint. This should be titled 'Amended Complaint' and incorporate the necessary changes. Courts have time limits for how long a party has to file an amended complaint; consult the clerk of the court.
Discovery is the process of gathering facts and evidence related to your position in the case. Even seemingly trivial information may be prove to be important, so it is necessary to collect everything that may be helpful to your case. Note that some information is 'privileged' meaning it cannot be disclosed to the opposing party. Non-privileged information can be gathered from the other party through a variety of methods, including Request for Production of Documents, Request for Admissions, Interrogatories, Depositions, and Independent Medical Examinations.
Various motions may be filed prior to the beginning of a trial. Examples include a Motion for Summary Judgment, Motion to Dismiss, and Motion to Compel (used during the discovery process when one party is unresponsive or uncooperative). Another useful motion that you could file is the Motion in Limine which is a pre-trial motion to keep certain evidence out or certain evidence in.
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