Lawsuit
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In law a lawsuit is a civil action brought before a court in which the party commencing the action, the plaintiff, seeks a legal or equitable remedy. One or more defendants are required to respond to the plaintiff complaint. If the plaintiff is successful, judgment will be given in the plaintiff's favor, and a range of court orders may be issued to enforce a right, award damages, or impose an injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.
A lawsuit may involve dispute resolution of private law issues between individuals, business entities or non-profit organizations. A lawsuit may also enable the government to be treated as if it were a private party in a civil case, as plaintiff or defendant regarding an injury, or may provide the government with a civil cause of action to enforce certain laws.
The conduct of a lawsuit is called litigation.
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[edit] Rules of procedure and complications in lawsuits
Rules of criminal or civil procedure govern the conduct of a lawsuit in the common law adversarial system of dispute resolution. Procedural rules are additionally constrained/informed by separate statutory laws, case law, and constitutional provisions that define the rights of the parties to a lawsuit (see especially due process), though the rules will generally reflect this legal context on their face. The details of procedure will differ from jurisdiction to jurisdiction, and often from court to court within the same jurisdiction. The rules are very important for litigants to know, however, because they dictate the timing and progression of the lawsuit – what may be filed and when to get what result. Failure to comply with the procedural rules can result in serious limitations in conducting the trial or even dismissal of the lawsuit.
Though the majority of lawsuits are settled and never even get to trial[citation needed], they can expand into a very complicated process. This is particularly true in federal systems, where a federal court may be applying state law (e.g., the Erie doctrine in the United States) or vice versa, or one state applying the law of another, and where it additionally may not be clear which level (or location) of court actually has jurisdiction over the claim or personal jurisdiction over the defendant. Domestic courts are also often called upon to apply foreign law, or to act upon foreign defendants, over whom they may not, as a practical matter, even have the ability to enforce a judgment if the defendant's assets are outside their reach.
Lawsuits become additionally complicated as more parties become involved (see joinder). Within a "single" lawsuit, there can be any number of claims and defenses (all based on numerous laws) between any number of plaintiffs or defendants, who each can bring any number of cross-claims and counterclaims against each other, and even bring additional parties into the suit on either side after it progresses. However, courts typically have some power to separate out claims and parties into separate suits if it is more efficient to do so, such as if there is not a sufficient overlap of factual issues between the various claims.
[edit] The progress of a lawsuit
The following is a generalized description of how a lawsuit may proceed in a common law jurisdiction:
[edit] Pleading
A lawsuit begins when a complaint is filed with the court This complaint will state that one or more plaintiffs is seeking damages or equitable relief from one or more stated defendants, and will identify the legal and factual bases for doing so. The clerk of a court signs a summons, which is then served by the plaintiff upon the defendant, together with a copy of the complaint. This service notifies the defendants that they are being sued and that they have a specific time limit to file a response. By providing a copy of the complaint, the service also notifies the defendants of the nature of the claims. Once the defendants are served with the summons and complaint, they have a time limit to file an answer identifying their defenses to the plaintiff's claims, including any challenges to the court's jurisdiction, and any counterclaims they wish to assert against the plaintiff.
In many courts, a lawsuit begins when one or more plaintiffs properly serve a summons and complaint upon the defendant(s). In these states, the plaintiffs need not file the complaint with the district court clerk to commence the lawsuit. As in other court, the defendant(s) will have a specific time limit during which they may file their answer.
If the defendant chooses to file an answer within the time permitted, he/she must respond to each of the plaintiffs' allegations by admitting the allegation, denying it, or pleading a lack of sufficient information to admit or deny the allegation. At the time he files an answer, the defendant will also raise all "affirmative" defenses he may have. He may also assert any counterclaims for damages or equitable relief against the plaintiff, and in the case of "compulsory counterclaims," must do so or risk having the counterclaim barred in any subsequent proceeding. The defendant may also file a "third party complaint" in which he seeks to join another party or parties in the action if he believes those parties may be liable for some or all of the plaintiff's damages. Filing an answer "joins the cause" and moves the case into the pre-trial phase.
Instead of filing an answer within the time specified in the summons, the defendant can choose to dispute the validity of the complaint by filing one or more motions to dismiss. The motion must be filed within the time period specified in the summons for an answer. If all such motions are denied by the trial court, and the defendant loses on all appeals from such denials (if that option is available), then the defendant must file an answer.
Usually the pleadings are drafted by a lawyer, but in many courts persons can file papers and represent themselves, which is called appearing pro se. Many courts have a pro se clerk to assist people without lawyers.
[edit] Pre-trial
The early stages of the lawsuit may involve initial disclosures of evidence by each party and discovery, which is the ordered exchange of evidence and statements between the parties based on what they each expect to argue during the actual trial. Discovery is meant to eliminate surprises and clarify what the lawsuit is about, and perhaps to make a party realize they should settle or drop the claim, all before wasting court resources. At this point the parties may also engage in pretrial motion filing in order to exclude or include particular legal or factual issues before trial, by blocking the other party from presenting a particular witness or arguing a particular legal theory.
At the close of discovery, the parties may pick a jury and then have a trial by jury. Or, the case may proceed as a bench trial heard only by the judge, if the parties waive a jury trial, or if the right to a jury trial is not guaranteed for their particular claim (such as those under equity in the U.S.) or for any lawsuits within their jurisdiction.
[edit] Trial and judgment
The lawsuit may then proceed similarly to a criminal trial, with each side presenting witnesses and submitting evidence, at the close of which the judge or jury renders their decision. Generally speaking, the plaintiff has the burden of proof in making his claims, which means that it is up to him to produce enough evidence to persuade the judge or jury that his claim should succeed. The defendant may have the burden of proof on other issues, however, such as affirmative defenses.
There are numerous motions that either party can file throughout the lawsuit to terminate it "prematurely" – before submission to the judge or jury for final consideration. These motions attempt to persuade the judge, through legal argument and sometimes accompanying evidence, that because there is no reasonable way that the other party could legally win, there is no sense in continuing with the trial. Motions for summary judgment, for example, can usually be brought before, after, or during the actual presentation of the case. Motions can also be brought after the close of a trial to undo a jury verdict that is contrary to law or against the weight of the evidence, or to convince the judge that he should change his decision or grant a new trial.
Also, at any time during this process from the filing of the complaint to the final judgment, the plaintiff may withdraw his complaint and end the whole matter, or the defendant may agree to a settlement, which involves a negotiated award followed also by the plaintiff withdrawing his complaint and the settlement entered into the court record.
[edit] Appeal
After a final decision has been made, either party or both may appeal from the judgment if they are unhappy with it (and their jurisdiction grants the ability). Even the prevailing party may appeal, if, for example, they wanted an even larger award than was granted. The appellate court (which may be structured as an intermediate appellate court and a higher court will then affirm the judgment, refuse to hear it (which effectively affirms), reverse, or vacate and remand, which involves sending the lawsuit back to the lower trial court to address an unresolved issue, or possibly for a whole new trial. Some lawsuits go up and down the appeals ladder repeatedly before finally being resolved.
[edit] Enforcement
When a final judgment is entered, the plaintiff will likely be barred under res judicata from trying to bring the same or similar claim again against that defendant, or from relitigating any of the issues, even under different legal claims or theories. This prevents a new trial of the same case with a different result, or if the plaintiff won, a repeat trial that merely multiplies the judgment against the defendant.
If the judgment is for the plaintiff, then the defendant must comply under penalty of law with the judgment, which will usually be a monetary award. If the defendant fails to pay, the court has various powers to seize any of the defendant's assets located within its jurisdiction, such as:
If all assets are located elsewhere, the plaintiff must file another suit in the appropriate court to seek enforcement of the other court's previous judgment. This can be a difficult task when crossing from a court in one state or nation to another, though courts tend to grant each other respect when there is not a clear legal rule to the contrary. A defendant who has no assets in any jurisdiction is said to be "judgment-proof."[1] The term is generally a colloquialism to describe an impecunious defendant.
Indigent judgment-proof defendants are no longer imprisoned; debtor's prisons have been outlawed by statute, constitutional amendment, or international human rights treaties in the vast majority of common law jurisdictions.
[edit] History of the term "lawsuit"
During the 18th and 19th centuries, it was common for lawyers to speak of bringing an "action" at law and a "suit" in equity. The fusion of common law and equity in the Judicature Acts of 1873 and 1875 led to the collapse of that distinction, so it became possible to speak of a "lawsuit".
In England and Wales the term "claim" is far more common; the person initiating proceedings is called the claimant.
American terminology is slightly different, in that the term "claim" refers only to a particular count (or cause of action) in a lawsuit. Americans also use "claim" to describe a demand filed with an insurer or administrative agency. If the claim is denied, then the claimant (or policyholder or applicant) files a lawsuit with the courts and becomes a plaintiff.
In medieval times, both "action" and "suit" had the approximate meaning of some kind of legal proceeding, but an action terminated when a judgment was rendered, while a suit also included the execution of the judgment.
[edit] Notes and references
- ^ Dionne, Georges (1992). Foundations of Insurance Economics: Readings in Economics and Finance. Springer. ISBN 0792392043.
[edit] See also
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NRS 12.010 Assignment of thing in action not to prejudice defense.
NRS 12.015 Actions involving indigent persons.
NRS 12.020 Actions by married persons.
NRS 12.030 Defense of actions against husband and wife.
NRS 12.040 Deserted husband or wife as a party.
NRS 12.050 Appointment of guardian ad litem.
NRS 12.070 Parent or guardian may maintain action for seduction.
NRS 12.080 Parent or guardian may maintain action for injury of minor child.
NRS 12.100 Action not to abate by death of any party after verdict.
NRS 12.105 State and local governmental agencies may be sued without naming members of their governing bodies; service.
NRS 12.107 Limitation on commencement of lawsuit against manufacturer or distributor of firearm or ammunition or trade association related to firearms or ammunition; exception for breach of contract or warranty.
NRS 12.110 Associates may be sued by name of association; summons; judgment to bind joint property.
NRS 12.120 Unknown heirs to real property may be made parties; allegations and proof that names and residences of heirs are unknown.
NRS 12.130 Intervention: Right to intervene; procedure, determination and costs.
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NRS 12.010 Assignment of thing in action not to prejudice defense. Except as provided for secured transactions in chapter 104 of NRS, in the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any setoff or other defense existing at the time of, or before notice of, the assignment; but this section shall not apply to a negotiable promissory note, or bill of exchange, transferred in good faith and upon good consideration before due.
[1911 CPA § 46; RL § 4988; NCL § 8545]—(NRS A 1965, 913)
NRS 12.015 Actions involving indigent persons.
1. Any person who desires to prosecute or defend a civil action may:
(a) File an affidavit with the court setting forth with particularity facts concerning his income, property and other resources which establish that he is unable to prosecute or defend the action because he is unable to pay the costs of so doing; or
(b) Submit a statement or otherwise indicate to the court that he is a client of a program for legal aid.
2. If the court is satisfied that a person who files an affidavit pursuant to subsection 1 is unable to pay the costs of prosecuting or defending the action or if the court finds that a person is a client of a program for legal aid, the court shall order:
(a) The clerk of the court:
(1) To allow the person to commence or defend the action without costs; and
(2) To file or issue any necessary writ, process, pleading or paper without charge.
(b) The sheriff or other appropriate public officer within this State to make personal service of any necessary writ, process, pleading or paper without charge.
3. If the person is required to have proceedings reported or recorded, or if the court determines that the reporting, recording or transcription of proceedings would be helpful to the adjudication or appellate review of the case, the court shall order that the reporting, recording or transcription be performed at the expense of the county in which the action is pending but at a reduced rate as set by the county.
4. If the person prevails in the action, the court shall enter its order requiring the losing party to pay into court within 5 days the costs which would have been incurred by the prevailing party, and those costs must then be paid as provided by law.
5. Where the affidavit establishes that the person is unable to defend an action, the running of the time within which to appear and answer or otherwise defend is tolled during the period between the filing of the affidavit and the ruling of the court thereon.
6. An affidavit filed pursuant to this section, and any application or request for an order filed with the affidavit, does not constitute a general appearance before the court by the affiant or give the court personal jurisdiction over him.
7. The order of the court to which application is made pursuant to this section is not appealable.
8. As used in this section, “client of a program for legal aid” means a person:
(a) Who is represented by an attorney who is employed by or volunteering for a program for legal aid organized under the auspices of the State Bar of Nevada, a county or local bar association, a county or municipal program for legal services or other program funded by this State or the United States to provide legal assistance to indigent persons; and
(b) Whose eligibility for such representation is based upon indigency.
(Added to NRS by 1967, 1209; A 1989, 201; 1991, 455; 2005, 197)
NRS 12.020 Actions by married persons. A husband and wife may sue jointly on all causes of action belonging to either or both of them, except:
1. When the action is for personal injuries, the spouse having sustained personal injuries is a necessary party; and
2. When the action is for compensation for services rendered, the spouse having rendered the services is a necessary party.
[1911 CPA § 47; A 1937, 29; 1931 NCL § 8546]—(NRS A 1975, 557)
NRS 12.030 Defense of actions against husband and wife. If husband and wife are sued together, either or both may defend, and if either neglects to defend, the other may defend for both.
[1911 CPA § 48; RL § 4990; NCL § 8547]—(NRS A 1975, 558)
NRS 12.040 Deserted husband or wife as a party. When a husband has deserted his family, the wife may prosecute or defend in his name any action which he might have prosecuted or defended, and shall have the same powers and rights therein as he might have, and, under like circumstances, the husband shall have the same right.
[1911 CPA § 49; RL § 4991; NCL § 8548]
NRS 12.050 Appointment of guardian ad litem. When a guardian ad litem is appointed by the court, he must be appointed as follows:
1. When the infant is plaintiff, upon the application of the infant if he be of the age of 14 years, or, if under that age, upon the application of a relative or friend of the infant.
2. When the infant is defendant, upon the application of the infant if he be of the age of 14 years and apply within 10 days after the service of the summons, or, if under that age or if he neglect to so apply, then upon the application of a relative or friend of the infant, or any other party to the action.
3. When an insane or incompetent person is a party to an action or proceeding, upon the application of a relative or friend of such insane or incompetent person, or of any other party to the action or proceeding.
[1911 CPA § 51; RL § 4993; NCL § 8550]
NRS 12.070 Parent or guardian may maintain action for seduction. Either of the parents or the guardian of a male or female minor child under the age of 16 years may, on behalf of that child, bring an action for the seduction of that child, against a person 3 or more years older than the child. The parent or guardian, as plaintiff, need not show that the child was living with him or was in his service at the time of the seduction or later, or that the parent or guardian suffered a loss of service.
[1911 CPA § 53; A 1913, 27; NCL § 8552]—(NRS A 1979, 1171)
NRS 12.080 Parent or guardian may maintain action for injury of minor child. The father and mother jointly, or the father or the mother, without preference to either, may maintain an action for the injury of a minor child who has not been emancipated, if the injury is caused by the wrongful act or neglect of another. A guardian may maintain an action for the injury of his unemancipated ward, if the injury is caused by the wrongful act or neglect of another, the action by the guardian to be prosecuted for the benefit of the ward. Any such action may be maintained against the person causing the injury, or, if the person is employed by another person who is responsible for his conduct, also against that other person.
[1911 CPA § 54; A 1913, 27; NCL § 8553]—(NRS A 1960, 321; 1969, 891; 1971, 151; 1987, 1281)
NRS 12.100 Action not to abate by death of any party after verdict. After verdict shall have been rendered in any action for a wrong, such action shall not abate by the death of any party, but the case shall proceed thereafter in the same manner as in cases where the cause of action now survives by law.
[Part 1911 CPA § 62; RL § 5004; NCL § 8561]
NRS 12.105 State and local governmental agencies may be sued without naming members of their governing bodies; service. Any political subdivision, public corporation, special district, or other agency of state or local government which is capable of being sued in its own name may be sued by naming it as the party without naming the individual members of its governing body in their representative capacity. In addition to any other method which may be provided by statute or rule of court, service may be made upon the clerk or secretary of the political subdivision, corporation or agency.
(Added to NRS by 1979, 394)
NRS 12.107 Limitation on commencement of lawsuit against manufacturer or distributor of firearm or ammunition or trade association related to firearms or ammunition; exception for breach of contract or warranty.
1. Except as otherwise provided in subsection 2, the State of Nevada is the only governmental entity in this state that may commence a lawsuit against a manufacturer or distributor of a firearm or ammunition or a trade association related to firearms or ammunition for damages, abatement or injunctive relief resulting from or relating to the lawful design or manufacture of a firearm or ammunition or the marketing or sale of a firearm or ammunition to the public.
2. The provisions of this section do not prohibit a county, city, local government or other political subdivision of this state or an agency thereof from commencing a lawsuit against a manufacturer or distributor of a firearm or ammunition for breach of contract or warranty concerning a firearm or ammunition purchased by the county, city, local government or other political subdivision of this state or agency thereof.
(Added to NRS by 1999, 1411)
NRS 12.110 Associates may be sued by name of association; summons; judgment to bind joint property. When two or more persons, associated in any business, transact such business under a common name, whether it comprise the names of such persons or not, the associates may be sued by such common name, the summons in such cases being served on one or more of the associates; and the judgment in the action shall bind the joint property of all the associates, in the same manner as if all had been made defendants and had been sued upon their joint liability.
[1911 CPA § 65; RL § 5007; NCL § 8564]
NRS 12.120 Unknown heirs to real property may be made parties; allegations and proof that names and residences of heirs are unknown.
1. In any action in which the title to real property situate in this state is involved in which the heir or heirs, or any thereof, of a deceased person may be necessary or proper party or parties defendant and the name or names and place or places of residence of which heir or heirs are unknown to the plaintiff or plaintiffs, such heir or heirs may be made a party or parties defendant by being described in the complaint and summons as the unknown heir or heirs of such deceased person, giving the name and last place of residence of such deceased person, with any further description that may be necessary to reasonably identify him.
2. In any such action the plaintiff or plaintiffs shall allege in the complaint, and prove at the trial, that diligent search and inquiry have been made by or in behalf of the plaintiff or plaintiffs to ascertain the name or names, and place or places of residence of such heir or heirs, without success, and that the same are and remain unknown to the plaintiff or plaintiffs.
[1911 CPA § 67; RL § 5009; NCL § 8566] + [1911 CPA § 68; RL § 5010; NCL § 8567]
NRS 12.130 Intervention: Right to intervene; procedure, determination and costs.
1. Before the trial, any person may intervene in an action or proceeding, who has an interest in the matter in litigation, in the success of either of the parties, or an interest against both.
2. An intervention takes place when a third person is permitted to become a party to an action or proceeding between other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both the plaintiff and the defendant.
3. Intervention is made as provided by the Nevada Rules of Civil Procedure.
4. The court shall determine upon the intervention at the same time that the action is decided. If the claim of the party intervening is not sustained, he shall pay all costs incurred by the intervention.
[Part 1911 CPA § 64; RL § 5006; NCL § 8563]
