CAUSE OF ACTION.

Before litigation of any type can be initiated against anyone, the aggrieved party must first suffer some kind of loss or harm for which the law provides a remedy. This is known as a cause of action.

In most Tort claims the aggrieved party's cause of action typically arises automatically (i.e., by operation of law) as soon as the injury occurs (or has been discovered by the aggrieved party). Once a specific cause of action arises (i.e., accrues), the aggrieved party only has a limited period of time within which to investigate the claim and bring a lawsuit.

This time is typically referred to as a limitations period which is set by statute for each individual type of claim. In most jurisdictions, the statute of limitations for most types of Tort claims varies between one and three years. The aggrieved party will be barred from filing a cause of action in court after the period of time specified within the applicable statute of limitations has expired, even if the claim was otherwise legally valid. The purpose of these statutory limitations periods is to prevent the filing of "stale" claims.

Ordinarily, after an injury of some kind has occurred, the aggrieved party will consult initially with an attorney to determine if a valid cause of action exists. The attorney first investigates the facts and circumstances surrounding the aggrieved party's claim, obtaining any necessary additional information, and (when necessary) the attorney may also research the relevant law. If the attorney finds no legal basis for the aggrieved party's claim, rules governing the attorney's ethical and professional conduct prohibit the attorney from bringing a claim that is groundless and without merit. Thus, the attorney can only litigate those claims on behalf of an aggrieved party that are based upon at least some legitimate legal theory.

Initially, for purposes of this discussion, assume that the aggrieved party has consulted with an attorney who has investigated the alleged claim and determined that it is one for which some relief might properly be permitted under our existing body of Tort law. Assume further that the attorney next exhausts any appropriate alternatives to litigation by making reasonable efforts to resolve the aggrieved party's dispute through various informal processes. Assuming that all of these other available alternatives have failed, the attorney has then proceeded to present the aggrieved party's case to a court for adjudication. For purposes of this discussion, you may assume also that the aggrieved party's legal claim has been contested by the opposing party.

THE COMPLAINT.

The Complaint is a formal legal document stating the relevant factual and legal bases in support of the claim by one party (now designated as the plaintiff) for relief against another party alleged to be responsible for causing the legal harm about which the plaintiff is complaining (designated as the defendant). The purpose of the "Complaint" is to put the defendant on notice as to the specific facts and circumstances of the plaintiff's claim, as well as what type of relief the plaintiff is seeking to obtain from the court.

In a Tort case this relief usually takes the form of a demand for monetary damages. After the Complaint is officially filed with the clerk of the court in the jurisdiction where the lawsuit has been brought, a copy is also personally delivered to the defendant by the sheriff or some other authorized official of the court (in a procedure known as "service of process").

MOTION TO DISMISS.

The Motion to Dismiss (also referred to as a "Demurrer" in some jurisdictions) is a formal request for the court to dismiss the Complaint without the necessity for filing any further pleadings in the case. This motion is made when the moving party (usually the defendant at this stage of the litigation) believes that there is no legal basis for the case to continue.

Specifically, the Motion to Dismiss says that even if the facts as alleged in the Complaint are found to be true, the law simply does not recognize the asserted cause of action. Thus, the purpose of a Motion to Dismiss is to prevent the case from progressing any further when there is absolutely no legal possibility that it can ever succeed.

In a Motion to Dismiss, there can be no dispute about any facts that are deemed material to the outcome of the lawsuit, because the case has not yet proceeded to a trial (during which specific findings of fact are made either by the court or a jury). Thus, in order for the trial court to rule on a Motion to Dismiss, any disputed facts in the case must be assumed in favor of the movant's version of the facts.

If the Motion to Dismiss is granted, the court can either permit the plaintiff to amend the Complaint by adding additional allegations that would "cure" deficiencies in the Complaint and make it sufficient to state a proper legal claim (after which the plaintiff would be allowed to start the case all over again), or the court can simply grant the Motion to Dismiss without leave to amend. In the latter case, this typically occurs only when the court decides that there are simply no additional material facts whatsoever that even could be added to the Complaint to make it legally sufficient to state any cause of action.

If the Motion to Dismiss is denied by the trial court, then the case will proceed to the next step of the litigation. Depending upon the jurisdiction, sometimes the Motion to Dismiss may be filed by the defendant prior to the filing of a formal Answer. However, it is commonly filed by the defendant at the same time as the filing of the Answer and as a part of the Answer itself.

THE ANSWER.

After a Complaint has been served against the defendant, that party has a specified period of time within which to file a formal written response to the plaintiff's Complaint with the court. In most jurisdictions this period of time is about thirty days, as measured from the date of "service of process." The most typical form of written response to a Complaint in a Tort case is referred to as an Answer, whereby the defendant formally must either agree or disagree with each specific allegation asserted in the plaintiff's Complaint.

Rules in most jurisdictions also require that certain types of legal defenses be asserted in writing with the defendant's first responsive pleading. For example, if the plaintiff alleges in a Complaint that the defendant "kicked the plaintiff’s dog, causing injury to the animal," the defendant might file an Answer simply denying such allegations altogether. Conversely, the defendant's Answer might admit the allegations in the plaintiff's Complaint, but nevertheless assert some proper legal excuse or justification (typically referred to as a defense) for the challenged action.

In addition to any defensive pleadings, the defendant at this time may also wish to assert a Counterclaim (a separate Complaint against the plaintiff), or even a Cross Claim (a separate Complaint against some third party that arises out of the same factual occurrence). The allegations set forth in the plaintiff's Complaint, together with the responses to those allegations as contained in the defendant's Answer, allow both parties, as well as the court, to know precisely what specific issues (both factual and legal) will be involved in the litigation.

Taken together, the plaintiff's Complaint and the defendant's Answer and all other related filings are commonly referred to as the "pleadings" in the case.

DISCOVERY.

After the plaintiff's Complaint has been put "in issue" by the filing of the defendant's Answer or other responsive pleadings, both parties to the litigation have at least a general idea of the legal and factual issues that are likely to arise in the case. However, many specific details pertaining to those issues still remain uncertain.

In most jurisdictions, both parties are then permitted to engage in a series of procedures (known generally as the process of Discovery) during which they may seek further details about the opposing party's case. In "Discovery," each party may ask written questions (known as interrogatories) to which the other party must respond in writing and under oath. Each party is also permitted to ask questions in person to the other party and their witnesses to which the other party must also respond under oath. These questions and answers are often transcribed into documents called depositions that can then be used at the trial for a variety of different purposes.

A party during discovery may request from the opposing party an admission of certain specific facts, and any such fact that is not specifically admitted or denied from that point on in the proceedings will be treated as if it had been admitted by the opposing party. Finally, during discovery each party may also demand that the other party produce certain specified documents or other physical evidence prior to the trial.

The basic purpose of this period of "discovery" is to avoid situations where either party might be unfairly "surprised" at the actual trial by the introduction into evidence of some evidence or by the testimony of some “surprise” witness about which they were unaware. In theory, discovery allows the parties to narrow the issues that are in dispute in a trial, thus simplifying and shortening the actual trial itself. In practice, however, discovery in many cases is hotly contested by the parties, and it often results in additional pre-trial delays and expenses.

MOTION FOR SUMMARY JUDGMENT.

After all of the pleadings have been filed, and discovery conducted, by both parties, either party may then file a Motion for Summary Judgment. This motion, like the Motion to Dismiss, again asks the trial court to rule in favor of the movant as a matter of law, (i.e., without permitting the case to proceed to trial).

Unlike the Motion to Dismiss which merely assumes the truth of all disputed facts in favor of the moving party, the Motion for Summary Judgment specifically adds additional facts to the pleadings in order to establish that there are indeed no disputed material facts whatsoever. Hence, the Motion for Summary Judgment is made in an attempt to avoid the expense and delay of a trial, by merely asserting that there are no disputed factual issues to be resolved by a trial.

Since there has not yet been a trial, the additional facts necessary for the Motion for Summary Judgment are usually supplied through the discovery process. Thus, the Motion for Summary Judgment asserts that there is no need for a trial because there is no dispute as to any material fact issues in the case and the law is clear, demanding a judgment in favor of the moving party. If the trial court grants the Motion for Summary Judgment, the case ends at this point.

MOTIONS IN LIMINE.

Once it has been determined that a case will proceed to trial, the focus of both parties' motions usually shifts to specific questions regarding the admissibility of certain types of evidence and other legal questions that are expected to arise during the actual trial of the case.

Either party may file a Motion in Limine (i.e., a Motion "on the verge" of the trial) at any time prior to the actual trial in order to request an "advance ruling" by the trial judge on a variety of issues that are likely to arise in the upcoming trial. The purpose of this motion is to limit or otherwise control the direction that the trial will take in regard to a particular issue or evidentiary matter that is anticipated. For example, a party may wish to file a Motion in Limine asking the trial judge to rule on the admissibility of a certain piece of evidence, or to limit the scope of a particular witness' testimony, in order to reduce the potential for unfair prejudice or surprise that might otherwise arise during the actual trial.

Typically, these motions are presented to the trial judge, as well as any argument with respect thereto, entirely outside the presence of the jury and in advance of the start of the trial itself.

THE TRIAL.

It is sometimes difficult for beginning law students to understand exactly when the trial actually begins. In practice, however, it's a little easier. All Tort cases, whether they involve claims that will be presented before a jury or not, eventually get "set" for trial by the court's calendar (often referred to as a "docket.") Thus, the trial date actually becomes a fixed point in time that is known by the court, as well as all parties in any way involved with the litigation.

The trial date is also important because it usually marks the end of the formal pre-trial "discovery" period. All discovery must be concluded by this date. This means that both parties must have completed all of their depositions, interrogatories, requests for admissions, etc, as well as any other formal requests for information by this date. The trial date is usually also the deadline for making any motions or other formal requests for rulings from the court prior to the start of the trial.

JURY SELECTION.

The first step in any jury trial involves the selection of the jury. Prospective jurors are initially selected (usually by the clerk of the court) from a pool of local citizens. These persons are questioned first by the trial judge, and then usually questioned further by the attorneys on behalf of each of the respective parties to the litigation. The purpose of this questioning (a procedure known as voir dire) is to identify any potential jurors who might be disqualified from service because of some personal interest or bias with respect to the specific litigation or the parties, witnesses, or attorneys involved in it.

During the jury selection process, each party is also permitted to remove a limited number of potential jurors even without a showing of prejudice or other cause (by means of a procedure often referred to as "striking" the unwanted jurors).

Eventually, when the process of voir dire is concluded, the entire jury panel will consist of between six or eight and twelve persons. This group (now typically referred to as a petit jury) is given an oath. Once this process is complete (often known as empanelling the jury), the formal part of the trial begins.

OPENING STATEMENTS FROM BOTH PARTIES.

Initially, the plaintiff's attorney begins the formal part of the typical jury trial in a Tort case by presenting to the jury a brief summary or overview of what the case is all about. Known as an "Opening Statement," this oral presentation is intended to give the jury a brief preview of the plaintiff's case and to alert them as to what specific facts they should look for when the evidence is presented to them. Once the plaintiff's attorney has concluded with the opening statement, the opposing party's attorney is then given an opportunity to present a similar statement.

PLAINTIFF'S CASE.

Since the plaintiff initiated the lawsuit by the filing of the Complaint, it remains the plaintiff's ultimate responsibility to satisfy the burden of proof with respect to establishing each and every legal element of any claim(s) that are alleged. For this reason, the plaintiff is entitled to go first in the presentation of witnesses and other evidence necessary to establish all of the facts pertaining to each part of the plaintiff's allegations.

After each witness is questioned first by the attorney who called that particular witness (a process known as direct examination), the same witness is then subjected to further questioning by the attorney who represents the opposing party (in a process known as cross examination).

These detailed examinations of each and every witness in a trial by attorneys who represent both respective parties are intended to eliminate any factual inaccuracies in the witnesses' personal observations and recollections, as well as to reveal any personal biases and other factors that might inappropriately influence or prejudice the outcome of the trial in favor of one party or another.

DEFENDANT'S CASE.

After all of the plaintiff's witnesses (and other evidence) have been presented and subjected to thorough cross-examination, the defendant's attorney then has an opportunity to present the other side of the case. As the defendant's witnesses are presented, they too are subjected to cross-examination, this time by the plaintiff's attorney. In this manner each party continues, in turn, offering evidence in support of their respective claims until all of the witnesses and other evidence have been presented before the jury. Ultimately, it is the jury's responsibility to weigh the credibility of each witness and to determine which version of any disputed facts to accept.

MOTION FOR DIRECTED VERDICT (referred to in federal court as a Motion for "Judgment as a Matter of Law").

At the conclusion of each party's presentation of their evidence, a Motion for a Directed Verdict is often made on behalf of the opposing party. The purpose of this motion is to challenge the sufficiency of the evidence that has been presented in support of the non-moving party's claim.

Since the jury has not yet had an opportunity to evaluate the evidence from the trial, the trial judge must consider this motion in the light most favorable to the non-moving party. After doing so, the judge may grant such a motion only if it determines that "no reasonable juror" could interpret the evidence in favor of the non-moving party. If there is any doubt as to how a reasonable juror might resolve some conflict with regard to any material facts in the case, then the Motion for Directed Verdict will be denied and the case will then proceed for a final decision by the jury.

The Motion for Directed Verdict is quite similar to a Motion for Summary Judgment in its legal effect, but it can only be made at the end of the trial, after all of the parties' evidence has been presented.

CLOSING ARGUMENTS.

Finally, after all of the evidence has been presented to the jury, each party is given an opportunity to argue (largely uninterrupted) their version of the case to the jury in an attempt to persuade them in favor of one party's assertions or another. The plaintiff's closing argument is presented first, followed immediately by the defendant's argument.

JURY INSTRUCTIONS.

Before the jury is allowed to begin their deliberations in the case, they must be instructed (a process known as "charging" the jury) by the trial judge as to the relevant law which they are to apply in deciding the case. Although the jury is generally free to exercise their own judgment and discretion (subject only to review by the courts for abuse of that discretion) when determining each relevant fact in the case, they must follow the trial court's instructions when applying those facts to the applicable law in the case.

Each party is permitted to propose jury instructions (i.e., legal rules) that should be applied in the case. Ultimately, however, the trial judge must decide which of these legal rules should be included in the jury's instructions and which should be left out.

THE VERDICT.

Once the jury has been instructed by the trial judge, they then retire to deliberate their verdict. A foreman or forewoman (i.e., a leader) is chosen by the jury from among their own members and the jury's deliberations take place in secret. Neither party is permitted to present anything further to the jury, although in most jurisdictions the jury is given copies of all the pleadings in the case, as well as any documentary evidence that was presented during the trial. Individual jurors are also generally permitted to refer to their own personal "notes" that they may have taken during the course of the trial.

When the jury reaches their decision, they then report their verdict to the trial judge. This verdict may take the form of a general verdict (e.g., "We find in favor of the plaintiff on his claim of negligence against the defendant"), or it may be reported as a special verdict consisting of a series of answers to very specific questions that were submitted for determination (e.g., "We find that the defendant violated statute 1-101 by running the stop sign at the intersection of Fourth and Main").

MOTION FOR JUDGMENT, N.O.V. (referred to in federal court as a Renewed Motion for Judgment as a Matter of Law).

A Motion for Judgment, n.o.v. (non obstante verdicto, meaning in Latin, notwithstanding the verdict) is very similar to a Motion for a Directed Verdict, except that it is made only after the jury has returned a verdict that is unfavorable to the moving party. If the trial judge, for whatever reason, was unwilling to grant a party's Motion for a Directed Verdict at the end of the formal presentation of evidence in the case, this Motion gives the judge one last opportunity to do so now that the jury has rendered their verdict.

Most of the time if the trial judge denies the movant's Motion for a Directed Verdict it is very unlikely that the same judge will later grant a Motion for Judgment, N.O.V. made by that same party after the jury has returned a verdict in the case. However, this Motion does give the judge one last opportunity to change his or her mind.

Perhaps, for example, the trial judge simply chose to deny the earlier Motion for a Directed Verdict, believing (or even hoping) that the jury would return their verdict in favor of the movant. Likewise, the judge, although initially willing to allow the jury to return a small verdict against the movant, may be unwilling to support a verdict that was substantially higher than the judge thought appropriate for the case. In any event, the question presented by a Motion for Judgment, N.O.V. is whether the evidence at the trial was sufficient to support the jury's verdict. Obviously, a Motion for Judgment, N.O.V. can be made on behalf of either party.

MOTION FOR NEW TRIAL.

After the conclusion of the trial, either party may make a Motion for a New Trial. The purpose of this motion is to give the trial judge one last opportunity to correct any serious legal errors that may have occurred at any time during the trial. When the error originally occurred, the judge simply may have regarded it as harmless or insignificant under the circumstances as they were then perceived. However, upon further reflection after the outcome of the trial is now known, this Motion gives the judge a chance to correct such an error before the verdict becomes final.

Once a verdict becomes final, the parties' only procedural recourse is to appeal the decision of the trial court in denying the Motion for a New Trial.

FINAL JUDGMENT.

The verdict of the jury is not final until it has been formally approved by the trial judge. Typically, both parties are given at least a limited opportunity even after the verdict has been returned by the jury to review the case in order to decide whether any serious error has occurred at any point in the trial.

Whichever party has prevailed in the trial will usually be asked by the trial judge to draft a "Final Judgment Order" which is then signed by the trial judge and becomes the official document that records the outcome of the parties' litigation. Neither party can "Appeal" the results of the trial until the trial judge has entered a Final Judgment Order.

APPEAL.

After the judgment of the trial court has become final, the case may be sent to an appellate court for further review. This process is known as an appeal. Although either party may bring an appeal to challenge some ruling that was made by the trial court, usually an appeal is only brought by the party that actually lost in the trial court proceeding.

The party who brings the appeal is called an "appellant" and the party against whom the appeal is brought is referred to as the "appellee." In most jurisdictions, there is an intermediate (i.e., lower) appellate court to which appeals may be made as a matter of right for any claimed error in the trial court below, and also a supreme (i.e., highest) appellate court to which only selected cases are appealed from the intermediate appellate courts (and not always as a matter of right but subject to the discretion of the reviewing court).

The written decisions of most appellate courts are sequentially reported in official publications known as "Reports" or "Reporters." Edited versions of these decisions are sometimes collected and arranged into casebooks that are studied by law students. An appellate court decision can affirm (i.e., uphold), reverse (i.e., overrule) or modify the decision entered by any lower trial (or intermediate appellate) court. The decision of the appellate court is binding on all lower courts.