by Audrey Howitt

Created on: November 19, 2011

Civil litigation is war; the courtroom is a battlefield upon which such issues as rights, money, damages and the like are decided. Prior to the final battle of a courtroom trial, the parties engaged in civil litigation engage in months of pleading wars, discovery and discovery motions and mounting legal fees. Is it all worth it? The answer is, sometimes. However, before you engage in this process, you should have a clear understanding of it.

The rules of engagement in civil litigation are outlined in several codices within each jurisdiction. Each state and county has rules of procedure and court rules that must be followed. It is beyond the scope of this article to list them all, but they should be checked, understood and checked again by anyone engaging in civil litigation.

The initial pleadings, the plaintiff’s complaint and the defendant’s responsive pleading, usually an answer, govern all of the causes of action and defenses that will be argued within a case. In the complaint, the plaintiff will make allegations regarding each required element for each cause of action alleged. The complaint will allege that a defendant or defendants are legally responsible under the law for some type of damage to the plaintiff and that the defendant must recompense the plaintiff for the damages caused.

Let’s take an example.  Let’s look at a typical automobile rear-end collision case. Plaintiff Smith is rear-ended by Defendant Gorden while Smith is stopped at a stop light. Defendant Gorden owed a legal duty to all other drivers on the road to drive with reasonable care. Gorden breached or failed that duty when he hit Smith. Smith suffered damages consisting of physical damage to his vehicle and some medical bills which were proximately caused by Gorden’s negligence. All of these allegations, and many more, may be contained in Smith’s complaint against Gorden.

Once Smith files his complaint and serves Gorden with it, Gorden has a specified time period, usually 30 days, to file a responsive pleading. This responsive pleading is usually made in the form of an answer to the complaint, but it may be another type of pleading that asks the court to find in Gorden’s favor and to end the litigation at this juncture.

Once an answer to the complaint has been filed and served, the second phase of civil litigation begins. Discovery is the name given a number of tools that can be used by both plaintiffs and defendants

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