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Why is my Civil Lawsuit Taking so Long?

May 11

A question that sometimes arises in people’s minds when they are in the middle of a civil lawsuit is “why in the world is this taking so long?” Truthfully, a civil lawsuit can take years to resolve, whether by settlement or actual trial. Looking at the several steps involved in a typical civil action explains why.

The legal papers that are filed in court at the beginning of a lawsuit are called “pleadings.” Usually the first document filed in a lawsuit is the Complaint (or Petition), which provides an outline of the plaintiff’s case against the defendant. The Complaint is a document that identifies the parties involved, sets out the legal basis for the court’s jurisdiction over the controversy, states the plaintiff’s legal claims, and relates the facts giving rise to the claims.

After the Complaint is filed, the defendant must be served with the Complaint and a “Summons.”   The Summons is an order from the court where the lawsuit will be heard or “litigated.” It notifies the recipient that he or she has been sued, refers to the Complaint or Petition, and sets out the time limit within which the defendant must file an answer or seek to have the case dismissed. In many cases, it is difficult to serve a defendant, whether he or she is “dodging” the Complaint, or is just hard to find. The legal term for delivery of the Complaint and Summons to a person is “service of process.”

After a person is served, they have a certain number of days, depending on the case, to Answer or respond to the Complaint. If a defendant has his or her own claim against the plaintiff, one which arose out of the same circumstances as those that led to the Complaint, it should be raised in the Answer in a section titled “Counterclaims.” The Counterclaim will be written in a manner similar to the Complaint. If a defendant asserts a Counterclaim in the Answer, the plaintiff may respond by filing a “Reply.”

If there are two or more Defendants involved in a lawsuit, they may “Cross-claim” one another. Cross-claims arise when there are many parties to the lawsuit and two or more have their own dispute arising out of the transaction or occurrence. The person being sued in a Cross-claim will file an Answer similar to the one filed after the original Complaint.

After the initial “pleadings” phase is complete, many times “pre-discovery motions” are made by one or more parties. A motion to dismiss is sometimes filed in the very early stages of the litigation. The motion is brought when the defendant believes that the complaint is legally deficient in some way. In deciding a motion to dismiss, the court must view the facts set forth in the complaint, and cannot rely on any information outside of the Complaint. A motion to dismiss is usually based on one or more of the following: 1) Lack of subject matter jurisdiction, meaning that the court doesn’t have the power to rule on the controversy. 2) Lack of personal jurisdiction. This means that the court does not have power to make decisions affecting the defendant personally. 3) Improper venue. “Venue” refers to the particular location of the court. 3) Insufficiency of process or insufficient service of process. A case may be dismissed if there is a technical defect in the summons (which is rare), or if you were not properly served with the summons and complaint (which is more common).

Next week, we will look at some other pre-trial motions, and discuss the “discovery” phase, which usually is responsible for the largest portion of time in a civil lawsuit.

As always, this column is intended for general information purposes only.  It is not intended, nor should it be construed as personal legal advice.  The answers to most legal problems rely on the specific facts of your situation; therefore, it is very important that you personally see a lawyer when these situations arise.

Failure to state a claim upon which relief may be granted. In some cases, your lawyer may conclude that the facts set forth in the complaint do not state a legal claim for relief. For example, the complaint may allege that you did some negligent act that injured the plaintiff. The law may provide that you don’t have any responsibility to look out for the plaintiff under the circumstances described in the complaint. If you don’t have a legal responsibility, you cannot be held liable for the plaintiff’s injuries.

Summary Judgment Motion

In some cases, the key facts are not disputed and require that judgment be entered for one of the parties. This is known as a summary judgment, in that it summarily ends the case before trial. The purpose of a trial is to have somebody — the judge or the jury — decide what the facts are. If the facts are not in dispute, there is no need for a trial. Instead the party who believes that the undisputed facts compel a ruling in his or her favor will file a motion for summary judgment. The motion asks the court to consider the undisputed facts and apply the law to them, and argues that the law requires a judgment for the party bringing the motion.

Summary judgment is described as “a blunt instrument” that can abruptly terminate the litigation. To avoid a summary judgment, the other party must provide the court with evidence that would be permitted at trial that indicates that the key facts are disputable. If the court agrees with the party opposing the motion and finds that the key facts are in dispute, the court cannot enter judgment and must instead send the case to trial.

Motion for Default Judgment

If a defendant fails to answer the complaint or file a motion to dismiss within the time limit set forth in the summons, the defendant is in default. When a defendant is in default, the plaintiff can ask the court clerk to make a note of that fact in the file, a procedure called entry of default. Entry of default is serious: it means that because the defendant has failed to appear, he or she will not be permitted to contest whether he or she is liable to the plaintiff. Instead, the only question in dispute is how much the plaintiff should receive in damages. The court will send the defendant a notice stating that default has been entered against him or her.

If a defendant is in default, acts promptly, and has an adequate excuse, he or she may be able to convince the court to set aside or vacate (undo) the entry of default from the file. Courts very much prefer that cases be decided on the merits, which often influences them to grant a motion to vacate entry of default. But in some cases, a court will decide that the defendants reasons aren’t good enough and refuse to set aside or vacate the entry of default.

 These initial procedures can take several months in and of themselves. The majority of time spent in a civil lawsuit, however, takes place during the “discovery” process. An important aspect of the American legal system is the principle that there should be as few surprises as possible in the course of a lawsuit. Since the late 1940’s, the federal court system has required disclosure of all relevant facts and documents to the other side prior to trial, and virtually every state has followed its lead. That disclosure is accomplished through a methodical process called “discovery.” Next week we will go over the different stages of the discovery process, mediationDiscovery takes three basic forms: written discovery, document production and depositions.

Written Discovery: Interrogatories and Requests for Admission

Interrogatories are questions requiring your version of the facts and of your claims. They can be pre-printed “form” interrogatories, or specific questions asked just for your case called “special” interrogatories. Questions can range from the broad (“What happened on April 26, 2004?”) to the specific (“Is it your position that the defendant was wearing sunglasses at 2:30 p.m. on April 26, 2004?”). If the questions asked are not fair questions or are difficult to understand, your attorney will help you decide what you should object to.

Requests for admission are not often used, but can be a very powerful tool. They ask a party to admit or deny certain facts pertaining to the case, and they carry with them penalties for not answering, for answering falsely, or even answering late.

Document Production

Document production is fairly self-explanatory. Any party has a right to see most documents that even arguably relate to a case. Particularly in more complex medical malpractice or product defect cases, the documents involved can be voluminous. Increasingly, courts are allowing access to computer files as part of document discovery. In cases where enough is at stake to justify it, courts have even allowed litigants to reconstruct deleted files (like e-mail), although that practice has not yet become common.


Depositions are sworn statements, when a person will answer questions from an attorney, and a court reporter will make a transcript of all that is said. Depositions can range in length from an hour to a week or more. Although all attorneys have their own strategies for depositions, there are basically three reasons to do them: to lock people into their stories, to see what the other side has, and to do a “practice trial,” that is, to see how a witness will appear and conduct themselves before a judge or jury.

Your attorney will tell you what he or she wants from you if you are deposed, but there are two general things to remember. First, never guess. The purpose of a deposition is to give facts, not to speculate as to what might have happened. Even if it makes you self-conscious to say it, sometimes “I don’t know” is the right answer. Second, it is human nature to want to explain things so that your listener understands, but you should resist the impulse. It is your opponent’s job to get the answers. It is your job to answer only the question asked, not to offer additional information.

What is summary judgment?

Summary judgment may be appropriate if the relevant facts are not in dispute and the only question is how the law should be applied to those facts. In such cases, there is no need for a jury or judge to hear witnesses or view evidence regarding what happened. All that is left for the court to do is to apply the law to the undisputed facts, without a trial.

In considering whether to grant a party’s motion for summary judgment, the trial court will review the parties’ affidavits (written statements made under oath) and discovery materials to determine whether, when viewed in the light most favorable to the opponent to the motion, there is no genuine dispute regarding an important fact.

If the court is uncertain whether a genuine factual issue exists, it will deny the summary judgment motion and the case will proceed to trial. If, on the other hand, the court is convinced that there is no such factual dispute, it will consider the parties’ written arguments on the legal issues and then rule on the motion for summary judgment, disposing of the case in favor of one of the parties.

In a civil trial, a judge or jury examines the evidence to decide whether, by a “preponderance of the evidence,” the defendant should be held legally responsible for the damages alleged by the plaintiff. A trial is the plaintiff’s opportunity to argue his or her case, in the hope of obtaining a judgment against the defendant. A trial also represents the defendant’s chance to refute the plaintiff’s case, and to offer his or her own evidence related to the dispute at issue. After both sides have presented their arguments, the judge or jury considers whether to find the defendant liable for the plaintiff’s claimed damages, and if so, to what extent (i.e. the amount of money damages a defendant must pay, or some other remedy). Depending on the type of case being heard, a civil trial may not necessarily focus only on the plaintiff’s allegations and the defendant’s liability. For example, in most divorce cases a trial judge reaches a decision after hearing allegations from both sides of the dispute, and enters a judgment that may favor one spouse on one issue (child custody), and the other spouse as to another issue (alimony). The following overview discussion of a civil trial is presented mostly in the context of a typical “plaintiff vs. defendant” civil case.

(Note: Although a trial is the most high-profile phase of the civil lawsuit process, the vast majority of civil disputes are resolved well before trial — and in some cases before a lawsuit is even filed — via settlement between the parties, alternative dispute resolution (ADR) processes like arbitration and mediation, or through dismissal of the case.)