Step #1: The legal process begins once a “complaint” is filed in court. The complaint outlines the reasons why one person feels the court should award some remedy, typically making a party pay damages. Complaints are often “verified” which means the person bringing the lawsuit swears that the facts in the complaint are true. The “plaintiff” is the person bringing the lawsuit and the “defendant” is the person being sued. District Court is designed for cases less than $25,000 and Superior Court for cases in excess of $25,000.
Step #2: After filing the complaint, a copy of the complaint must be delivered to the defendant. This is called “service.” Service is usually by a sheriff’s deputy or through certified mail. Once served, the defendant must “answer,” or respond to the complaint within 30 days (an extension of 30 additional days is available and customarily taken). If the defendant doesn’t timely answer, the plaintiff may get a “default judgment.” A default judgement means the plaintiff wins because the other side didn’t respond. Other than small claims, when a suit is filed no court date is set. Many defendants who lose by default claim to have been waiting for a court date but that is not what the summons says.
Step #3: In the defendant’s answer, he or she could bring a counter-suit against plaintiff (“counterclaim”), bring a claim against a co-defendant (“crossclaim”) or bring a suit against a third party (“third-party complaint”). An answer might also include “affirmative defenses” or things that, if true, mean the plaintiff cannot win. An example of an affirmative defense would be if the time for bringing a lawsuit (the statute of limitations) has expired.
Step #4: After the answer is filed, discovery begins. Discovery is a period before trial where parties gather facts about the case. Discovery can take months and can last right up until a trial. Discovery includes depositions (taking the testimony of a witness or party), request for admissions (a set of statements for the other side to admit or deny), interrogatories (a set of written questions to the other side), and request for production (request for documents and exhibits). If you send discovery or the other party sends discovery to you, the response is due in 30 days although it is typical to obtain a 30 day extension on that deadline.
Step #5: Parties can also file motions during the discovery phase. A motion is simply a request for court action. An attorney might file a motion to compel if the other side has not responded to discovery, for example. A common type of motion is called “summary judgment.” Summary judgment is an attempt for a relatively quick end to the lawsuit without a trial available when the facts are not disputed and the judge can decide the case ruling only on legal issues.
Step #6: Prior to trial, cases are typically ordered into mediation (Superior Court) or arbitration (District Court). A mediation is a meeting for the parties to discuss the case with the assistance of a certified mediator and attempt to resolve it. The parties determine whether the case is settled or not; the mediator cannot force a decision. If the case does not settle, it goes on to trial. Court ordered arbitration, is essentially a mini-trial heard in front of an arbitrator (usually a local lawyer). The arbitration lasts only one hour and at the end, the arbitrator makes a decision. The decision is binding on the parties unless someone appeals it within 30 days. Your attendance at mediation or arbitration is required.
Step #7: Many cases are resolved before going to trial. However, if both sides have good arguments or are unable to find a middle ground, a trial is the next stage. Trials are decided by a judge unless either party requests a jury. Court dates can be set by the parties, once discovery is done, or by the clerk of court. District Court cases typically take around 6 months to get to the point of being ready for trial and Superior Court cases are closer to 1 year. Many cases are set on the same hearing date. If your case is not reached or one party is granted a continuance, a new trial date is necessary (you do not roll over to the next day or week). New trial dates for District Court usually mean a minimum 6-8 week delay and new trial dates for Superior Court cases may result in a 6-12 month delay.
Step #8: Once the trial is over, a judgment is issued. A judgment is the court’s decision in a matter. For these purposes, we will assume a plaintiff has won a money judgment. Before beginning the collection process, you have to wait 30 days for the appeal period to run.
Step #9: If you have a judgment against an individual, you must first serve the defendant with a Notice of Rights to Claim Exempt Property. Individuals have 20 days to fill out and file their response asking that certain property be excluded from the sheriff’s collection efforts. It is not unusual for people to ignore this paperwork and thereby waive any exemptions. After the 20 days, you submit a Writ of Execution, basically a paper for the court to calculate exactly what is due, to the clerk of court. If you have a judgment against a company, you do not have to deal with the Notice of Rights and you can submit a Writ of Execution without any further delay.
Step #10: Once filled out by the clerk, the Writ of Execution is delivered to the sheriff for collection. This process can take some time and some defendants have no property from which to collect the judgment. It does help to provide information to the sheriff regarding the location of debtor’s bank or any property the defendant may have. The sheriff will typically contact the defendant and will also search tax and DMV records to learn if there is any property to sell to obtain payment. If property is located, the sheriff will ask for a deposit to cover its costs in the sale. If property is not located, you can send a questionnaire to the defendant about his or her assets. Failure to answer the questions can eventually be punishable by contempt of court and the process can be used as leverage to obtain payment. Judgments are good for 10 years (and can be extended for another 10 years). You can go through the process as many times as needed to obtain full payment.
This article is meant as general knowledge and not meant to substitute for legal advice on specific issues. If you have a question, please call Doug McClanahan at (919) 861-0693.