• Process of a Lawsuit
  • The Civil Process
  • The Criminal Process
  • The Trial
  • Recovering Fees
  • Settling Out of Court

The American legal system uses an adversary model to settle disputes. This model pits parties against one another in a contest to persuade an impartial third party (a judge or jury) to accept their version of the dispute. Ideally, by comparing the two versions, a judge or jury is able to discern the truth and make a just decision.

One of the fundamental distinctions in the American legal system is the difference between civil and criminal matters. Civil cases resolve private conflicts between people, business, or government, often by determining money damages for some harm. Criminal cases entail the enforcement of law by government and may involve fines, incarceration, or -- in states such as Florida -- death.

Despite their differences, civil and criminal lawsuits do share some of the same procedural rules. For example, both types of suits must conform to applicable statutes of limitation. A statute of limitation is a law setting the period of time during which a lawsuit must be filed. The time period varies depending on the legal claim. If a case is not filed within the period set by law, the right to file that lawsuit is lost.

Both civil and criminal cases also have to meet certain jurisdictional requirements. Jurisdiction refers to rules governing which court has authority to hear a particular case. Florida's circuit courts, for example, hear civil disputes involving over $15,000 and all felony criminal prosecutions. Florida's county courts hear civil disputes involving less than $15,000 and misdemeanor criminal prosecutions. This is what is known as subject matter jurisdiction. Also, a court must have personal jurisdiction over the parties in the case. Usually, either the parties must reside in the geographic region in which the court is located, or the act which is the subject of the dispute must have occurred there. Otherwise, people could be sued anywhere in the nation.

What follows is a discussion of how a lawsuit moves through either the civil or criminal court system. The state and federal court systems are discussed in the Florida's Legal & Judicial System Chapter.

Civil cases make up the majority of cases filed. The parties in a civil lawsuit are known as the plaintiff and the defendant. The plaintiff brings the lawsuit against the defendant by having his or her attorney file a complaint with a court. The complaint states what the dispute is about, why the defendant should be made responsible, and the remedy sought by the plaintiff, usually money damages. Another common form of remedy is an injunction, which bars a person from doing a specific act, either temporarily or on a permanent basis. The plaintiff is responsible for serving -- or having someone else serve -- a copy of the complaint, together with a summons, on the defendant. A summons is an official court document notifying the defendant that he or she must answer the complaint in writing within a specified period of time. In Florida, that period is 20 days. If the defendant does not answer in time, the plaintiff wins by default.

The defendant's written response to the complaint is known as the answer. The answer admits or denies the allegations in the complaint. It also states any defenses to the complaint, such as if there is a lack of subject matter jurisdiction or the statute of limitations has already expired. The answer can also contain any counterclaims that the defendant has against the plaintiff. The counterclaims must relate to the plaintiff's complaint. The defendant cannot counterclaim about entirely unrelated issues -- that would be a different lawsuit.

As any lawyer would say, an uncomplicated lawsuit is a rarity. Plaintiffs may sue additional defendants and bring them into the original lawsuit. Outside parties with a related claim may intervene under certain circumstances. Defendants may make counterclaims against the plaintiff, sue other third parties and bring them into the original suit, or even sue other co-defendants.

For situations in which there is a large group of plaintiffs with similar claims against one or more defendants, plaintiffs can seek to file a class action lawsuit. For example, investors from around the country who have been injured by securities fraud may sue the issuer in one single action.

The rationale behind such suits is that plaintiffs, defendants, and the court system benefit by having one large lawsuit rather than hundreds -- or even thousands -- of individual ones.

In preparation for trial, parties often gather information from one another and from other sources. This process of information gathering is known as discovery. Discovery can take a number of different forms. Parties can request copies of documents from one another; they can submit interrogatories, which are written questions the other party must answer under oath; they can request the other party to admit to certain aspects of the case, so as to reduce the number of issues to be litigated; or, they can conduct depositions, which are sworn statements by witnesses conducted in question and answer form.

The vast majority of cases settle before the parties reach the courthouse steps. Sometimes the cost and effort required to prepare for trial persuades parties to reevaluate their positions and agree to settle. Parties may negotiate their own settlement or use some means of alternative dispute resolution to bridge their differences (see the Alternative Dispute Resolution Chapter).

Another way a lawsuit can be concluded before reaching trial is through a summary judgment. If, after the complaint and answer have been filed, it is clear that there is no dispute concerning the facts, only the parties' interpretation of the facts, then the judge will make a decision by applying the facts to the law and grant summary judgment. However, if there is a genuine dispute about the facts in the case, and the parties are not interested in settling, they proceed to trial. An outline of how a trial is conducted follows a discussion of the criminal process.

In the criminal process, either the state or federal government seeks to detain and punish a person whom the government believes is guilty of committing a crime. The United States Constitution guarantees certain rights and protections to persons being prosecuted by the government, such as protection from unreasonable search and seizure, a right to counsel, a right to a jury trial, a right to a speedy trial, and a right to confront witnesses. How people are treated in the criminal process is largely a matter of federal and state constitutional law. What kinds of acts or omissions are considered crimes and how they are punished is largely governed by state law. (For a discussion of Florida criminal law see the Criminal Law: White Collar Defense Chapter.)

The criminal process begins when a person is arrested. The police are authorized to arrest someone if they have probable cause to believe the person has or is in the process of committing a felony, or if the person commits a misdemeanor in the presence of an officer. The police usually obtain a warrant before arresting someone. A warrant is a court order charging that there is probable cause to believe a person has committed a crime and should be brought into court.

A person has the right to appear before a judge within 24 hours of his or her arrest. At this initial appearance, the judge informs the person of the charges against him or her and determines whether pretrial release is permissible. A person in custody for the alleged commission of a crime usually is entitled to pretrial release, unless the crime for which he or she is charged is a capital offense (a crime punishable by death) or an offense punishable by life imprisonment and the proof of guilt is "evident or the presumption great." Depending upon the situation, the accused may be released on his or her own recognizance, may be placed in the custody of a designated person or organization agreeing to supervise the accused, or may have to execute a bail bond. In any case, the accused must agree to return to court for further proceedings. If the government believes the accused may flee or will place the community at risk, it can file a motion for pretrial detention.

If the attorneys for the government believe that the arrest was justified and the available evidence supports the arrest, the government will charge the accused person with a crime. Charging can be made directly by a document known as an information, or a grand jury can issue an indictment. A grand jury is a panel of citizens that determines whether there is sufficient evidence to charge a person with a crime. A grand jury does not determine guilt or innocence of a defendant; that task is given to a petit jury during the trial portion of the criminal process. Both an information and an indictment are formal charging instruments that specify the crime, the accused or defendant, and give a court jurisdiction to try the case. Capital felonies can only be charged by indictment.

The arraignment is the accused's formal response to the charges filed by the government. The defendant may plead guilty, not guilty, or nolo contendere A plea of nolo contendere means that, without admitting guilt, the accused will not contend the charges made by the government. Judges will not always permit a nolo contendere plea.

If the defendant enters a plea of guilty or of nolo contendere, there is no need for a trial and the next step is sentencing. If the defendant enters a plea of not guilty, the parties will proceed to trial. Along the way to trial, and sometimes during trial, plea bargaining may occur: the defendant agrees to plead guilty to a lesser charge if the prosecution agrees to drop the more serious charge. In the interest of expediency, plea bargaining is typically encouraged.

Whether a case is civil or criminal, the basic process of a trial is similar. The decision maker in a trial can be either a judge or a jury. In civil cases, the parties may have a right to a jury, depending on the subject matter. Juries in civil cases are usually made up of six people, plus alternates. All defendants facing serious criminal charges have an absolute right to a jury trial. Criminal juries consist of six jurors, except for capital cases, which require 12 jurors.

The first step in a jury trial is jury selection, otherwise known as voir dire. During voir dire the attorneys, and sometimes the judge, ask questions of potential jurors in an attempt to gauge their capacity to be fair and impartial. Persons who demonstrate bias or whom the attorney believes will not be sympathetic to his or her client's case can be removed from the jury pool. This is known as a peremptory challenge. Each attorney has a limited number of peremptory challenges and cannot remove a prospective juror for reasons such as gender or race. After a jury is selected, the members are sworn in.

Next come the opening statements. The attorneys for both sides tell the jurors their version of the case and what they intend to prove. The plaintiff in a civil case gives its opening statement first, and the prosecution goes first in a criminal case. Following opening statements, the plaintiff or prosecution proceeds with the evidence of their case. One form of evidence is witness testimony. The plaintiff or prosecution asks a witness questions under oath. This is known as direct examination. After the plaintiff or prosecution is finished, the defense is then permitted to ask the witness some questions. This is called cross-examination. After cross-examination, the plaintiff or prosecution may question the witness again. This is known as redirect examination. Evidence takes other forms such as documents, charts, pictures, audio or video recordings, depositions, and business documents such as contracts. After the plaintiff or prosecution has finished presenting its case, it is the defendant's turn. This time, the defense calls witnesses for direct examination and the plaintiff or prosecution conducts cross-examination.

During presentation of both sides' cases, attorneys will make objections about what questions can be asked of the witnesses and what evidence can be introduced into the record. There are very specific rules governing what evidence is admissible. After both sides have concluded presenting their cases, the attorneys give closing arguments. In closing, an attorney summarizes the evidence presented and explains why his or her side should prevail. If a judge is deciding the case, he or she will render a decision within a certain period of time, usually 90 days. If a jury is deciding the case, the judge will instruct the jury as to what law must be applied to the evidence of the case.

One area in which the civil and criminal trial processes differ is the standard of proof. In a civil trial, the plaintiff generally must prove his or her case by a "preponderance of the evidence." In other words, the plaintiff must show that it is "more likely than not" that his or her version of the facts is true. In a criminal trial, the prosecution must prove its case "beyond a reasonable doubt." The criminal standard is higher because in a criminal case, a person's liberty, perhaps even his or her life, usually is at stake. Also, the parties in a civil case decide beforehand whether the jury must be unanimous in its decision. In a criminal trial, the jury must be unanimous. If it is not, a hung jury is declared and the case may be tried again.

Both parties in a civil trial and the defendant in a criminal trial have the right to appeal a decision if they believe some error was made. Prosecutors, however, cannot appeal a not guilty verdict

In the American legal system, usually each side is responsible for its own legal costs. This means that in business litigation, the prevailing party generally pays its own legal fees. Exceptions to this rule sometimes are provided by statute or by agreement between the parties. For example, some civil rights laws provide that legal fees may be awarded to a prevailing party who sues an employer for illegal discrimination.

Occasionally, business contracts will include provisions requiring the losing party to pay the prevailing party's legal fees in any dispute arising under the contract. Such legal fee provisions generate a great deal of disagreement in the legal profession. Some lawyers insist upon including such a clause in every contract they draft, while other lawyers counsel their clients never to sign a contract that contains one. Legal fee provisions are a sword that can cut both ways. The loser winds up paying the winner's legal fees, but there is no way to know who will be the winner in an disagreement. However one feels about them, legal fee provisions are now included in most printed leases, promissory notes, and other business contracts. Because legal fees can be very expensive, it is worth considering carefully the possible effect of such a provision before signing an agreement that contains a legal fee provision.

A businessperson should never lose sight of one option that remains open throughout the civil litigation process -- settlement. Often it is the client who needs to keep settlement in mind because most lawyers are trained to solve problems in court rather than out of court. The client may need to remind his or her lawyer that the primary objective is a quick and satisfactory resolution of the dispute, not total victory at any cost.

It is a wise idea to include settlement strategies and the possibility for using alternative dispute resolution in early discussions with the attorney one hires to handle a matter. As time passes and legal fees amount, settlement often becomes an increasingly attractive option to proceeding to court. If clear goals are set from the start, and those goals are periodically reviewed, it will often be easier to settle later. If the parties do reach a settlement agreement, each side's attorney should be involved in drafting and reviewing the settlement papers before signing. It is possible for a party to agree to settle a matter without admitting fault and without compromising its position in any future disputes.