• Process of a Lawsuit
  • Civil Process
    • Civil Pretrial Process
  • Criminal Process
    • Criminal Pretrial Process
  • Trial Process
  • Small Claims Court
  • Recovering Fees
  • Settling Out of Court
  • Resources

There are two kinds of cases: civil and criminal. Civil cases resolve private conflicts between people, businesses, and the government. Criminal cases involve the enforcement of a law by the government. Most disputes are resolved before trial. Disputes may be resolved before any legal action is filed, after legal action is filed in court, or while a trial is in process but before the judge or jury renders a decision. Most cases have to be filed within the time limits set by law. These limits are known as the statutes of limitations. The time limitations vary depending on the type of legal claim filed. If a case is not filed within the time period set by law, one loses the right to file the legal claim.

This chapter will outline the process of a case through the civil and criminal circuit court system. It will also outline the trial process. Finally, it will discuss the use of small claims court. The Illinois Legal & Judicial System Chapter discusses the state and federal court systems in Illinois and the Civil Appellate Law Chapter describes the civil appeals process. Also see the specific subject matter chapters for more information, including the Criminal Law: White Collar Defense Chapter and the Personal Injury Defense Law Chapter. The Alternative Dispute Resolution Chapter discusses options that exist outside the courtroom.

On rare occasions, civil cases may be filed as class actions. Class actions arise when there is a common question of law and fact for a large number of persons. There is a special process to go through to establish a class action. This certification process can be lengthy. Recent examples of class actions include breast implant cases and real estate dual agency cases.

The burden of proof in a civil case is on the party who initiates the case (the plaintiff). The plaintiff must prove the case by a preponderance of evidence. This means that the party in a case who presents the more convincing evidence wins the case. The plaintiff's evidence must be more convincing than the evidence presented by the opposing party (the defendant).

Civil jury trials usually include only 6 jurors when the claim for damages is less than $15,000, although either party may demand a jury of 12. All other civil trials have 12 jurors. Civil juries are not required to reach a unanimous verdict. If 11 of the 12 jurors agree on a case resolution, it may be enough for a verdict. A person is limited to bringing one legal action for damages arising from the same circumstances.

Civil Pretrial Process

There are several steps before a case goes to trial. To assist the parties in preparing their cases and learning about the other side's case, a process called discovery occurs. During discovery, each side may ask the other to answer written questions (interrogatories), provide copies of documents, or answer questions orally under oath (deposition). A deposition is usually held in an attorney's office and is recorded by a stenographer. A deposition can be used to impeach a witness during the trial if testimony at trial is different from the testimony given at the deposition. Each side also may make motions to the court asking it to settle legal questions that arise. During the pretrial process, a settlement might be arranged. Six circuit courts, including the Cook County Circuit Court, require mandatory arbitration in cases in which the sole claim is for an amount of money not in excess of $50,000. This is an effort to settle cases before they go to trial. A party who is dissatisfied with the results of the arbitration process may proceed to trial in the circuit court. For more information on the arbitration process, see the Alternative Dispute Resolution Chapter. If a settlement is not arranged during the pretrial process, the parties proceed to trial. An outline of the trial process follows the Criminal Pretrial Process section.

The next level of crime is called a misdemeanor. Like felonies, misdemeanors also are classified to reflect the seriousness of the crime. A person convicted of a misdemeanor may be sent to jail for up to a year and also may be required to pay a fine. Other violations, such as parking tickets and moving violations, are called petty offenses. A person guilty of one of these offenses cannot be sent to jail but can be required to pay a fine of up to $500.

The burden of proving a case against a person in a criminal proceeding (the defendant) is on the party bringing the charges (the prosecutor). A criminal defendant does not have to prove his or her innocence; the prosecutor must prove that the defendant is guilty. Decisions in a criminal proceeding are based upon a different standard than civil cases. In order for a person to be found guilty of a crime, the prosecution must prove the defendant is guilty beyond a reasonable doubt. There are 12 jurors in a criminal case, and unlike a civil proceeding, all jurors must reach a guilty or not guilty verdict. If a jury fails to reach a unanimous verdict, it is a hung jury and a mistrial is declared. If a mistrial is declared, a new trial may be held.

Criminal Pretrial Process

Soon after an arrest, a defendant must be taken before a judge, where the judge informs the defendant of the charge against the defendant. The judge again informs the defendant of the right to an attorney. At that time, if the defendant cannot afford an attorney, a public defender is appointed. Although a defendant has the right to represent himself or herself in court, most defendants prefer to be represented by an attorney. Finally, at this initial hearing, the judge determines whether the defendant should be released on bail or kept in custody.

A defendant will be released on bail only if the judge determines that the defendant does not pose a threat to any person or the community. The amount of bail set depends on many factors including the likelihood that the defendant will return for future proceedings and the nature and circumstances of the charged offense. If a defendant fails to report for a subsequent court appearance, the defendant forfeits the amount of the bail, and also may be punished with contempt of court or with criminal sanctions.

At the next court appearance, the judge reviews the evidence against the defendant to make sure there is probable cause to believe the defendant committed the offense. The next step is the defendant's arraignment. At the arraignment, the judge reads the charges to the defendant, and the defendant must make a plea. In Illinois, the only pleas available are guilty, not guilty, or guilty but mentally ill. If the defendant pleads guilty, the court will not accept the plea until the judge fully explains to the defendant the consequences of such a plea and the maximum penalty provided by law. If the defendant persists in the guilty plea after the explanation, the plea is accepted, and the next step is sentencing. If the defendant pleads guilty but mentally ill, the court will not accept the plea until the defendant has undergone an examination by a clinical psychologist or psychiatrist. If the defendant pleads not guilty, the case proceeds to trial.

At any stage in the proceeding, the defendant and prosecutor can engage in plea bargaining. During plea bargaining, a defendant may agree to plead guilty to a lesser criminal charge in exchange for dropping the more serious charge.

Before a defendant is sentenced, there is a pre-sentence investigation. This investigation examines may factors, such as the defendant's criminal history, physical and mental condition, and family situation and background. At the sentencing hearing, the court considers the pre-sentence report, any trial evidence, evidence of aggravating or mitigating circumstances, and statements of the defendant and the defendant's victim(s), if any. Depending on the crime, a sentence may consist of a fine, a term of imprisonment, probation, or some combination thereof. The possible sentencing alternatives for a particular crime are defined by statute, but the judge is free to impose a sentence any length of time within the statutory range, depending on the evidence presented. If a defendant does not plead guilty along the way and charges are not dropped by the prosecutor, the next step is a trial.

If a jury trial is requested, the first step is selecting a jury. A group of persons selected for jury duty is brought into the courtroom and asked questions by the judge and attorneys for both sides. The questioning is to determine whether a person can be a fair and impartial juror. A person who cannot be fair may be removed for cause. Others may be eliminated from the jury by the attorneys without reason. This is known as a peremptory challenge. Each attorney has a limited number of peremptory challenges that he or she may make. When a jury is selected, the members are sworn in.

The next step is the opening statement. The opening statement allows each side to tell the jurors about the case, what to expect, and what they intend to prove. The plaintiff in a civil case and the prosecutor in a criminal case give their opening statements first.

After the opening statements, testimony begins. The plaintiff or prosecutor, whichever the case may be, calls witnesses to the stand and begins questioning them. The questioning of a witness by the party who asked that person to testify is called direct examination. The opposing side also has the opportunity to question the witnesses; this questioning is called cross-examination. After cross-examination, the first party may question the witness again in rebuttal.

After the plaintiff or prosecution is done presenting its case, it is the defendant's turn. This time, the defense calls and questions witnesses, and the other side cross-examines them. Attorneys for either side may make objections to questions that the opposing side asks or evidence the opposing side wants to introduce. There are rules about what information is admissible in court, and the judge follows these rules when resolving any objections.

After both sides have presented their cases, attorneys give closing arguments. In closing, each attorney summarizes the facts of the case and states why his or her side should prevail. Finally, the judge gives instructions to the jury on the law to be applied in the case. After receiving the judge's instructions, the jury retires to decide the issues in the case. As mentioned before, a unanimous decision is not required in a civil case, but is required in a criminal case. If a party believes that there was an error at trial, he or she can appeal the decision to a higher appeals court. However, a prosecutor cannot appeal a not guilty verdict. Discussion of the appellate process is contained in the Civil Appellate Law Chapter.

A person who wishes to file a claim in small claims court, the plaintiff, must fill out a standard small claims court form in the county where the defendant lives or where the claim arose. The filing fee must be paid at that time. The fee varies from county to county. If the plaintiff requests that the case be heard by a jury, rather than only a judge, the plaintiff must pay an additional fee. If the plaintiff wins the case, the plaintiff may request that the court require the defendant to reimburse the plaintiff for these fees.

After the form is filled out and the fee is paid, the small claims court clerk will mail notice of the hearing to the plaintiff and defendant. The defendant does not have to answer the complaint, but must appear in court at the appointed time. If a defendant fails to appear at the hearing, the plaintiff may win the case by default.

A party who wins a small claims court case must collect the money himself or herself. The court does not force the defendant to pay the prevailing party. If the losing party does not pay what is owed, the prevailing party may need to garnish the other party's wages through the small claims court, or may need to commence other legal action to collect the money due. A party who is dissatisfied with the judge's decision may appeal the decision.

Occasionally, business contracts will include provisions requiring the losing party to pay the prevailing party's legal fees in any dispute arising out of the contract. Such legal fee provisions generate a great deal of disagreement in the legal profession. Some lawyers insist upon them in every contract they draft, while other lawyers counsel their clients never to sign a contract that contains one. It is important to realize that 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 whether the side that drafts the provision will be the winner in any 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.

It is a wise idea to include settlement strategies, including alternative dispute resolution, in early discussions with the attorney one hires to handle a matter. As time passes and legal fees mount, settlement may become 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(s) 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 other disputes.