How Lawsuits Work

by Lee Ann Obringer

You step in a puddle of spilled cooking oil in a grocery store and break three bones in your
hand. You're a concert pianist. How can you recover your lost income?
Your landlord claims you broke several things in your apartment that you didn't pay for.
You know they were broken when you moved in. The forms you signed when you moved
in don't specifically mention those items. How do you keep from having to replace
something you aren't responsible for?
Lawsuits are filed every day. In fact, according to an article on the Citizens for a Sound
Economy Web site, there are more than 15 million civil cases processed annually in state
courts alone, at a cost of over $1.8 billion. Although the number of product liability cases in
2000 was less than half of the number in 1997, the courts are still clogged with civil
lawsuits. Most courts are trying to encourage people to settle their disputes out of court, and
some require mediation at some point in the process before you can go to trial.
In this article, we'll talk about what you have to go through to take someone to court -- or,
what you might be able to do to avoid court and still get some satisfaction. Keep in mind
that the legal process differs from state to state so this may not always be exactly the way it
works in your area.

Civil vs. Criminal

First, let's start off by understanding that there is a difference in a civil trial and criminal
trial. When you sue someone and take him to court, it is usually based on a tort. When
someone breaks a criminal law, then the public prosecutor takes him to court for a criminal
trial.
Torts are different from criminal laws in that a person may not have broken a law, but may
have acted negligently (either intentionally or not) and as a result, someone else was injured
physically, emotionally, and/or monetarily. Torts provide grounds for the lawsuit. Specific
torts include trespassing, assault, battery, negligence, product liability, and intentional
infliction of emotional distress. There are also three general categories that torts fall into:
intentional torts (e.g., intentionally hitting someone), negligent torts (e.g., causing an
accident because you didn't follow traffic rules), and strict liability torts (e.g., being
responsible for damages caused by a product you manufacture and sell).
Damages
The original purpose of tort law was to compensate victims for their losses and also to help
prevent future losses by punishing the defendant (the person being sued). For these reasons,
there are compensatory damages, which require the defendant to pay back money the
plaintiff (the one who filed the lawsuit) lost as a result of the defendant's negligence, as
well as money to make up for money for pain and suffering. There are also punitive

damages. Punitive damages are what the defendant has to pay as his punishment for being
grossly negligent, malicious, reckless, or acting intentionally -- not just for making a
mistake or not being careful. In an effort to get a handle on rising punitive damages, a
decision was issued in July 2003 by the U.S. Supreme Court that limits the amount
someone can recover in punitive damages.
The Steps
If you are intent on a lawsuit, here is a quick list of the steps you'll go through before it's all
said and done.
Try to settle out of court
File the suit
Discovery
Pre-trial motions and discussion
Settlement discussions
Trial and judgment
Appeals
We'll walk through these steps one by one.
Trying to Settle Out of Court
Settling out of court is far less expensive than a trial. Unless you know for a fact that you
have an ironclad case, you stand the risk of spending large amounts of money and getting
nothing in return. No satisfaction, no restitution, nothing. The best first step of any potential
lawsuit is to try to work out your disagreement outside of court. The courts agree with this
wholeheartedly and in some states require some sort of dispute resolution before you can
even bring a case to trial. Even if you do have an ironclad case, you need to weigh the costs
of litigation with the potential award you might (or might not) get after a trial.
Here are some ways you can try to resolve your dispute without involving lawyers and
large sums of money. You have three general paths to take to avoid the court room.
Face-to-face Negotiation
First, you should try a good old-fashioned face-to-face conversation with your adversary. Is
he even aware of the problem? Does he acknowledge responsibility? Have you tried to
come to an agreement about how to remedy the problem? You may be surprised at how
reasonable the person is. If you do come to an agreement, you should probably have it
documented and each sign it with witnesses present. And it's best to have an attorney draft
it up to make sure you haven't left any loopholes.
Settling out of court is far less expensive than a trial.

Mediation

If you've tried your own negotiation and gotten nowhere, then you might consider
mediation. In mediation, you and your adversary come together with a neutral third party
who tries to help you work out an agreement. A mediator does not have any say in how the
mediation turns out, he only provides advice about your options and how you could come
to a fair agreement. He helps you arrive at a solution. In some courts, you are required to go
to mediation before you can bring a lawsuit to court. You don't have to come to an
agreement, but you have to go through the process and try. This requirement is an effort to
reduce the number of cases that go to court. Some contracts you sign may also require
mediation before you can file a lawsuit in the event of a dispute.
If you do arrive at a solution in mediation, you can make it legally binding by writing up a
mediation agreement that each party (and usually the mediator) signs. The agreement spells
out the decision that was made as well as intentions for future behaviors that both you and
your adversary are required to follow. By having a signed agreement, you can make the
outcome enforceable in court.
Mediation fees vary a lot. Depending on where you live and who your mediator is, you may
pay as little as $50 (or nothing) for mediation, or you may pay $200 to $300 per hour.
Mediator training varies a lot, too. Some may be volunteers who have backgrounds in
social work or similar fields, some may be specially trained for mediation in specific areas
like divorce, and some are lawyers who mediate on the side.
Arbitration
Another form of dispute resolution is arbitration. Arbitration is similar to mediation in that
you come together with your adversary and a third party to discuss a solution to your
problem. The difference is that the third party, known as the arbiter, makes a legally binding
decision on your case. Arbitration is more like litigation in this respect -- you lose control
of the decision. The arbiter's decision, called the "award," has to follow the law. If the
arbiter doesn't apply the correct laws to the decision, then a judge may overturn it. You are
also allowed to have counsel at an arbitration. If you know your adversary is bringing an
attorney, you should, too.
So when should you go to arbitration? Since arbitration is based more on the legal issues
and less on the personal issues of the case, it is usually recommended for cases that involve
money rather, as opposed to a case about a neighbor who keeps blocking your driveway.
Cases like that are best settled in mediation, if possible.
Arbitration does cost more than mediation, however it is still less than going to court. Like
anything else, it depends somewhat on where you are geographically. Typical half-day
arbitration may cost both you and your adversary anywhere from $500 to $1,000 each.
There are different types of mediation and arbitration. For instance, you can have
nonbinding arbitration, which means that if either party doesn't like the decision, it isn't
binding. You can opt for high-low arbitration, which means you and your adversary
establish upper and lower limits for the monetary award. (For instance, an insurance
company would suggest a low amount and the individual with the complaint would suggest
a higher amount.) The arbiter isn't told about the limits. If his or her decision is lower than

the low number, then the low number is used, and if it is higher than the high number, the
high number is used. If the decision falls within the limits, then it becomes the actual
amount of the award.
Many other variations are possible, as well. For more information, go to The WWW Virtual
Library: Private Dispute Resolution.
Looking for an Attorney
If neither mediation or arbitration works for you, then you begin your search for a good
attorney. The best bet is to get recommendations from friends, family, business associates,
or the local bar association. You should talk with several attorneys before you settle on
someone. Look for experience in the area of your dispute and litigation experience, as well
as interest in your case. If you need a very aggressive attorney, then watch the attorney in
the court room and get a feel for his style. How well you get along with the attorney is also
important because communication between the two of you is crucial. If you don't feel
comfortable with the person, you may not be able to communicate with him effectively.
Also remember that, in the event that you make a poor choice, you can always change
attorneys. You would still have to pay any fees and reimburse for costs, and the initial
attorney may have a right to part of any award you eventually earn.

Filing the Lawsuit

If you've determined that a lawsuit is your only option, and you've found the perfect
attorney to try your case, then you're ready to get those legal gears turning. In this first
stage of the lawsuit (known as the pleadings), your attorney writes a document (called the
complaint) that:
describes the basic facts of your case
names everyone involved
references the legal theory to back up your claim
states what you want as the outcome (money, an agreement of action, etc.)
You (the plaintiff) and the person you are suing (the defendant) are known as the parties of
the lawsuit. There can be more than one person on either side of the suit. In fact, there can
be many defendants and many plaintiffs. For example, you and some of your co-workers
might decide to sue the company you work for. If you all have the same complaint and seek
the same outcome, this will work fine, and you will all save money on legal expenses. If
not, you need to file separately. In cases where there are potentially hundreds of plaintiffs,
then a class action suit may be considered (see About Class Action Lawsuits).
Filing the Compliant
There are two court systems in the United States -- state court and federal court. If your
case involves someone from another state (known as a diversity case) and has a value over
$75,000, then it MAY go to federal court. If your case involves some sort of federal law or
right (known as federal question), it can also go to federal court. Federal question is more
fully defined as "jurisdiction given to federal courts in cases involving the interpretation

and application of the U.S. Constitution, acts of Congress, and treaties. Other than that,
you'll probably go to state court. Unless, of course, your case involves both federal and
state laws, in which case you can go to either state or federal court.
How do you determine where the suit will be filed? If you are seeking monetary
compensation of less than $5,000 (in many states), you can take your case to small claims
court. In small claims court, there is no jury, and you can't bring an attorney, although you
can meet with one prior to the court date. The process is quick and a lot less complicated
than in other courts. Since states differ in their rules on what qualifies for small claims
court, check with your local Clerk of Court to find out what the requirements are in your
area.
For larger cases, there are different levels of courts. These different courts have different
jurisdictions. The decision of where your case will be heard is either out of your hands,
because there is a legal requirement that the suit be brought to a particular court, or your
attorney gets to recommend one.
If the attorney has the choice of courts, then, in addition to considering where the case
should be heard (geographically), whether the case should be heard in state or federal court,
and at which level it should be heard, the attorney will also consider other aspects such as
how convenient the court is, who the judge is, how quickly the court can hear the case, how
complicated a court's process is, etc. It is here that the attorney's knowledge and experience
with local courts and judges can come in handy.
Once the complaint is completed, it is filed in the selected court. This really gets the ball
rolling -- and it gets the attention of your adversary, now known as the defendant. The filed
complaint has to be delivered to the defendant. This is called service of process. In addition
to the complaint, the defendant will also be served a summons. The summons explains what
the defendant needs to do as a result of the complaint. This whole process is usually
referred to as serving the defendant.
Sometimes it is difficult to track down the defendant. When this is the case, constructive
service is necessary. This means the documents can be mailed to the defendant's workplace,
last known home address, and/or posted in the newspaper under the "Legal Notices"
section.
The Defendant's Response
Once the defendant has been served, he must respond to your complaint within 20 to 30
days (depending on the jurisdiction) by filing responsive pleadings. One type of responsive
pleading is called an answer. In that document, the defendant might totally deny the
complaint, deny certain parts of it, point a finger at someone else not named in the
complaint, point out technical problems in the complaint itself, etc. In other words, an
answer's purpose is to somehow modify the complaint.
Motions
If the Defendant's responsive pleading isn't an answer, then it must be in the form of a
motion. A motion introduces some other question to the court that the judge must rule on.

Motions can be filed at any time during the trial up until the final judgement is made. The
party who initiates the motion is called the mover, and the other party is called the opposing
party. When one party files a motion, the opposing party can file a request for the judge to
deny the motion. For example, the defendant may file a motion to dismiss if:
There is no legally sufficient claim in the complaint that warrants the award the plaintiff is
requesting
The court lacks the subject matter jurisdiction or personal jurisdiction for the case
The court isn't of the proper venue
There has been a problem with the process itself
Countersuits
The defendant may also file a countersuit against the plaintiff, which makes the plaintiff the
counter-defendant. This begins a new complaint process; however, the two cases will be
heard as one lawsuit.
If the defendant's response isn't filed within the allowed time (usually 20 to 30 days, but can
be less in some courts), your attorney may ask the judge to enter a default judgement,
meaning that you will be awarded everything you requested in the complaint. However,
judges often allow the defendant additional time to file responsive pleadings if there is a
good reason for not getting it done on time.
Once the pleadings are filed, discovery begins.

Discovery
All of the legwork in gathering facts and evidence for a case is known as "discovery."
While each court may have different discovery rules, the basics are the same.
Discovery is the act and procedure of gathering every bit of evidence and information, no
matter how trivial it may appear, from both parties involved as well as others outside of the
suit. It can be information about the facts of the case, documents that may be important to
the case, background information on the parties involved, names of others who might know
more -- pretty much anything. Information from a conversation that would never be
admitted in court can be part of the discovery process. The justification for this is that it
might be possible to gain true evidence as a result of the knowledge gained from a
discussion among the defendant, witnesses, or others related to the case.
There are some things, however, that are protected (privileged). While these vary greatly
from state to state, here are some that might apply:
Conversations between spouses are sometimes privileged because of the importance of free
communication between a husband and wife.
Conversations between doctors and patients are sometimes privileged, unless the plaintiff is
suing for personal injury.
Conversations with religious counselors are sometimes privileged.
Certain financial information can be privileged.

How Does Discovery Work?

To save time and money, some judges may require that each side of the lawsuit turn over all
basic information it has regarding the case. In addition to this, attorneys gather information
through requests for production of documents, requests for admissions, depositions,
interrogatories, and requests for independent medical examination (IME). The judge will
often schedule conferences during the discovery stage. These can cover things like the
status of discovery (i.e., whether it is moving along as it should be), settlement potential
(i.e., whether there is a chance for settlement at this stage), or resolving any discovery
disputes that may be arising.
Motions also can be filed if any of the discovery requests are not being met. For example, a
motion for more responsive answers can be filed. This type of motion requires
documentation of each discovery request, the response, and the reason the response is
inadequate.
In the request for production of documents, each attorney requests documents that will help
him prove his case. These documents can include business records, traffic or police reports,
or anything else that might apply.
Requests for admissions are requests your attorney will make of those involved on the other
side of the suit to state under oath that certain facts are true or untrue. This is to save time
and money gathering evidence to back up facts that are either obvious or prove that
documents are authentic.
Interrogatories are questions the attorneys prepare to send to the other party to answer. The
answers to these questions can become part of the sworn testimony used in the case, so they
are very important. It's part of your attorney's job to help you answer these questions -- not
to tell you what to say, but to make sure you only answer the question being asked and that
you answer it fully.
Depositions are interviews the attorneys have with witnesses or anyone else who may be
able to provide information for the case. They are the most important part of discovery,
because here the attorneys find out what the opposition is going to say in his testimony, as
well as assess his ability as a witness. When someone is questioned (known as being
deposed), attorneys from both sides can attend and ask questions. A critical part of all
depositions is that the witnesses tell the truth -- untruths (even minor ones) can come back
to haunt them at the trial. Juries focus on those kinds of things. A witness's credibility can
be weakened when even minor discrepancies crop up.
Independent medical examinations (IMEs) are medical examinations by a physician who is
not involved with anyone in the case, and has not treated the person having the IME. While
fairly rare, IMEs are sometimes performed for cases involving some aspect of the physical
condition of the plaintiff or the defendant -- personal injury cases, for example.

Motions to quash may be filed if one party is trying to get protected information from the
other party during discovery. If the judge allows the information to be admitted, then
another motion (motion to seal matters produced upon discovery) can be filed.
If either party of the lawsuit doesn't provide information he is supposed to provide, then the
judge can also impose a sanction against him. This means he will fined for not providing
the information. The sanction can be against either the attorney or the client. It depends on
which person is refusing to provide the information.

Pre-trial Motions and Proceedings

The whole purpose of a trial is to resolve disputes about the facts of your case. If neither
party can dispute the facts, then a motion for summary judgement can be filed. A summary
judgement means the judge looks at the facts, applies the law, and makes a ruling -- saving
you both a lot of time, money, and anguish. If there is any dispute about the facts, then the
judge will deny the motion. In other words, there is no reason to bring a case to trial unless
there is evidence that should be heard by a jury.
Other motions include:
Motion to dismiss - The Defendant can request the case be thrown out because it doesn't
state any kind of claim that warrants an award; or, as we mentioned earlier, if the court
lacks the subject matter jurisdiction or personal jurisdiction for the case, isn't of the proper
venue, or there has been a problem with the process itself.
Motion for judgement - Even after the trial has started, the parties can request that the judge
make the ruling before the case is sent to the jury. Like the summary judgement, this
motion is used when there aren't any facts that are disputed in the case. If testimony in the
trial has resolved the disputes (at least to reasonable minds), then the motion for judgement
will probably be accepted and the judge will rule -- if not, the judge will deny the motion.
Motion for judgement notwithstanding verdict - This motion is filed when the case goes to
the jury but the jury's verdict isn't reasonable. (Note: This is rare.) In order to file a motion
for judgement notwithstanding verdict, your attorney first would have to have filed a
motion for judgement after all of the evidence had been heard. If the judge denied the
motion and sent the case to the jury, and the verdict the jury then came back with is totally
unreasonable, the motion for judgement notwithstanding verdict can be filed. If the judge
agrees, he will rule on the case.
Settlement Discussions
Before a case can go to trial, discussions take place for settlement out of court. This is by
far the most frequent resolution for civil lawsuits. This is often the stage when mediation
takes place. When you settle, it usually means that each side is giving in on something. For
example, maybe the defendant will admit to being negligent when he put in an inadequate
drainage system for his pond's overflow pipe after it washed away your driveway, but he
may not agree to drain the pond as you are demanding. You, on the other hand, may get

your driveway rebuilt along with a better drainage system to ensure it doesn't happen again.
Your demands for lost wages while you couldn't get your car out of your driveway to go to
work may have to be dropped, or could be a point to negotiate further.
Some of the things that have to be considered during this stage include:
Does the defendant have the money you are demanding for damages? If not, is there any
use in going to trial? Also, are your monetary demands reasonable for this type of dispute?
Do you (and your attorney) think you have a good chance of winning now that discovery
has produced more facts? If you aren't sure, then settling may be your best option.
What if the fees you pay your attorney end up being higher than what you are awarded by
the judge or jury? If there is a chance of that happening, then you certainly want to settle
(only if you're trying to get money rather than some other sort of action.) If you can reach
an agreement that would be beneficial without involving money, that too is a reason for
settling out of court.
Are you sure you are up for the emotional roller coaster of a trial (taking the stand to testify,
having your dirty laundry aired out in public...)?
Settlement discussions can actually happen at any time -- the earlier the better if you want
to save on attorney fees. Most often, settlement discussions take place when some big piece
of evidence turns up that will greatly affect the outcome of a trial one way or the other.
Other times, settlement discussions occur right before the trial or when the other party files
a motion that could affect what you might ultimately get out of the case.
Negotiating a Settlement
If you do decide to try to settle, you can either have your attorney draft a formal offer of
settlement strictly based on your terms, or you can sit down with the defendant and
negotiate.
By now, you and your attorney should know about all of the facts of the case as well as
have a good feel for how the defendant feels about the case and possible outcome. If you
decide to sit down and try to negotiate a settlement, you should first plan a strategy. Keep in
mind that if your offer is totally one-sided, it won't be accepted, just like in any type of
negotiation. Some of your strategy will, of course, depend on the facts of the case and how
strong your side of it is. Since you've gotten this far in the process without the case either
being decided by a judge or else totally dismissed, there must be some disputed facts that
require a trial. Sitting down and discussing those discrepancies with the defendant may or
may not get you anywhere.
Here are some pointers for the negotiation table:
Don't nitpick the small points. Go straight to the major issues and use the smaller ones only
as you need to.

Maintain a nonhostile (or mostly nonhostile) demeanor -- even if you don't think things are
going your way.
If you have anything that can be held back as negotiation ammunition later on, then do so.
It may come in handy. If, however, you may get more right off the bat by presenting this
ammunition early on, then do so.
What Will the Settlement Cover?
A settlement ends the lawsuit. In doing that, it also lays out the different points that the
plaintiff and the defendant have agreed on, such as how much money is going to paid by
whom to whom, how/when/where that money will be paid, what actions will be either
forced or prohibited, who is paying court costs, etc. It also will usually state that this case
cannot be resurrected with a new lawsuit based on related issues. These things all would be
specifically spelled out in the written document known as the dismissal with prejudice,
notice of dismissal, or sometimes the stipulation for dismissal. Once this document is
completed and signed, the defendant is "released" from the lawsuit.

Trial Preparation
If you've gone through all of the pre-trial requirements (discovery, motions, negotiations,
etc.) and still haven't settled your case, then it's time to accept that you're going to court. In
some states, at this point either your attorney or the defendant's attorney (if the defendant
has also reached this conclusion) files a memorandum to set trial date (this is also
sometimes called a motion to set trial date or an at-issue memorandum). This document can
include information like the details of the case, what your demands are, whether you want a
jury trial or bench trial (see below), any recent settlement offers you've had, and an estimate
of how long you think the trial will last. Note that these types of procedures vary a lot from
state to state. In some states there is simply a mandatory status conference at a specified
time after the suit is filed in order to set the date for trial.
Types of Trials
There are two types of trials -- trials that are heard by a judge (known as a bench trial) and
trials that are heard by a jury (known as a jury trial). Deciding which type you need may
take some thought. Having a jury trial can slow down the entire process, not only because
there is additional time needed for jury selection, but also because your attorney will need
additional time (and fees) to prepare. There is also the time the jury must take to decide the
case. A judge may (or may not) make a quicker decision. It's not unheard of for judges to
delay decisions for months, while a jury might have a decision in a few hours. You never
know.
There are pros and cons associated with both jury
and bench trials.

Regardless of the time issue, a jury trial may or may not be what you want. If your case
involves any emotional issues, then, depending on which side of those issues you're on, you
may or may not want a jury to hear it. If your case will stand only on a legal technicality,
then you probably don't want a jury. You could just be seen as greedy and unfeeling. If your
case could really go either way, then you stand the chance of a hung jury -- meaning the
trial is over but nothing is decided. Rely on your attorney's experience with the courts to
determine the best type of trial.
Once you know the type of trial you need, then the trial date can be set. Some courts
operate on a "direct calendar" and others on a "master calendar," and some on neither of
these systems. If the court your case will heard in is a direct calendar court, then the judge
you've been working with will schedule the trial and will also preside over it. If the court is
a master calendar court, then you may not have the same judge. Either way, there will
probably be a "trial setting conference" where both parties' attorneys meet with the judge to
schedule the court date. Jury trials often have to be scheduled at later dates than bench trials
because of the time involved in scheduling the jury. If scheduling conflicts later come up
for either party, then there can be a request for a continuance.
Preparation
Before the trial begins, pre-trial conferences are sometimes called to essentially lay out the
game plan for the entire trial. (These conferences may not be necessary for all trials.) At
these conferences, both attorneys go over what they will present, in what order they will
present it, and any issues that will need to be presented separately in order to prevent
predisposing the jury about any of the facts. In addition to the meetings, the attorneys
sometimes have to submit a pretrial brief that outlines all of the facts of the case with
indications of whether the facts are disputed or undisputed. The brief also has to detail their
exhibits and evidence and provide a list of witnesses. The judge will also request one of the
attorneys to submit a "pretrial order," which is a document that describes what will happen
in the trial -- a script of sorts. Just as with the other procedures we've talked about, these
vary from state to state and may not be the case in your area. In some areas, a witness list is
all that is necessary.
In addition to all of the documents the attorney's have to prepare for the court, they also
have to prepare for the trial itself. The attorney has to be intimately familiar with facts and
details of the case and present those through the series of questions they ask the witnesses.
Here are some of the things the attorney does to prepare for the trial:
Review all of the depositions and information gathered in discovery
Prepare questions for witnesses
Determine the most logical order to tell the story and present the evidence
Prepare the witnesses for cross examination (questions posed by the opposing attorney)
Prepare objections for evidence that should not be presented
Have visual aids and exhibits created
Write the opening statement
Jury Selection
If your trial will be heard by a jury, then the selection of that jury is very important. Jury
pools are pulled from the big list of registered voters in your area. In some courts, the judge

will ask the potential jurors all of the questions, but in others the attorneys will also be
allowed to ask questions. The jurors are questioned in order to screen out anyone who has
personal knowledge of the case, knows someone on either side of the case, or has had a
similar experience to the one presented in the case. If allowed, the attorneys may ask
additional questions in order to screen out potential jurors who may not support their side
of the case. The selected jurors are sworn to decide the case impartially.
At the Trial...
As most of us know from watching Law & Order or L.A. Law, the first thing that happens
in the trial is the plaintiff's attorney's opening statement (if it is a jury trial), followed by the
defendant's attorney's opening statement. The opening statement is like the preview for a
movie. You'll hear the highlights of the case and evidence that will be presented and get the
gist of the story.
Since evidence is usually introduced through the witnesses' testimony, the order in which
the witnesses take the stand and the questions they are asked must be set up with precision.
In civil cases, the plaintiff's attorney is allowed to call the defendant to the stand, as well.
Attorneys can also introduce evidence (if both sides have agreed that it can be introduced)
by stipulation.
Questioning the Witnesses
The questioning of witnesses is the main way in which the facts of the case are conveyed.
The questioning of each witness by the attorney who called that witness to the stand is
called direct examination. During the direct examination, the opposing attorney can object
to the question before the witness has a chance to answer it. The attorney may be objecting
to the question itself or to the way the question is being asked. For example, the way the
question is asked may be "leading" the witness to a specific answer. He may also object to
the question because the witness's answer would be hearsay (meaning the witness doesn't
know the information first-hand).
The judge decides if the attorney's objection is justified (sustained) or not justified
(overruled). If the witness answers a question before the judge has a chance to say whether
the question should be withdrawn, then the judge can instruct the jury to disregard the
witness's answer.
Once the plaintiff's attorney has asked a witness all of the questions he has prepared, then
the defendant's attorney gets an opportunity to ask questions, known as cross-examining the
witness. After the defendant's cross-examination, the plaintiff can redirect more questions.
These redirect questions have to relate to the information that was brought out in the
original questioning. The defendant can then recross-examine, with the same restriction that
these questions relate to the original questioning.
After the plaintiff's attorney has called all witnesses, the plaintiff's case rests. Then, the
defendant's attorney begins calling witnesses for the defense. The same rules apply for

cross-examination and redirects. When the defendant's attorney has questioned all
witnesses for the defense, then the defendant's case also rests.
Burden of Proof
In civil cases, the plaintiff has the "burden of proof," meaning, essentially, that the plaintiff
has to have greater evidence to prove his case than the defendant must have to prove his -hence the "scales of justice." If the plaintiff's evidence isn't great enough to tip the scales,
the defendant wins.

For punitive damages (in most states), the burden of proof is a step higher. There must be
"clear and convincing" evidence in order to win the case. This is a middle standard of
proof, falling between the "preponderance" standard of most civil cases, where one side
simply has to have more evidence in its favor, and the criminal standard of "beyond a
shadow of a doubt."
Closing Statements
Each attorney sums up the evidence and facts presented in the trial in their closing
statements (if there is a jury). No additional information can be introduced during these
statements. The plaintiff's attorney closes first, then the defendant's attorney, then the
plaintiff's attorney has an opportunity to make an additional statement, usually to clarify
something the opposing side said. This is called a rebuttal.
The Jury
In jury trials, the judge instructs the jury members on how they should go about deciding
the case (deliberating), which party has the burden of proof, how the law should be applied,
and whether they have to have a unanimous vote or not. Either the jury will select its own
foreman or the judge will assign one (the jury foreman takes charge of the process). The
jury then goes to a private room to discuss the facts of the case and vote on the outcome.
When the jury has voted and made its decision, the members return to the courtroom and
the foreman reads the verdict.
Sometimes, the jury just can't come to a decision. This is called a deadlocked jury or a hung
jury, and can lead to a mistrial. If there is a mistrial, the trial is over but no one has won. In
this case, the parties have to retry the case or find some other way to find a solution.

Post-trial Proceedings and Appeals

Even after the trial, there are some steps to go through. Let's say the plaintiff wins the case.
The plaintiff's attorney must evaluate the costs and come up with the totals in order to
formalize the judgement. The clerk of court then files a "notice of entry of judgement."

The plaintiff also has to determine how he's going to enforce the judgement. If the
defendant must pay the plaintiff money, then (depending on the state) the plaintiff may have
options on how to collect -- this may include garnishing wages, taking assets to cover the
dollar amount, or putting a lien on property.
And, while these decisions are being made, there is always the possibility that the defendant
is still trying to win the case. The defendant may try to get the judge to overturn the ruling,
or request a new trial based on some problem that occurred during the trial, or appeal the
case to a higher court. Remember the "motion for judgement notwithstanding verdict?" If
the jury's verdict was really off-base to most reasonable people, then the judge might agree
to the motion and change the verdict.
For more information on lawsuits and related topics, check out the links on the next page.

Lots More Information

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More Great Links

U.S. Courts: Educational Outreach for the Federal Judiciary

'Lectric Law Library's Dictionary of Legal Terms
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American Arbitration Association
Global Arbitration/Mediation Association