Among a civil attorney’s most important roles are:
Filing a petition and answer
Sending and responding to discovery
Pursuing an out-of-court settlement
Arguing the case at trial
Many clients, who are about to hire a civil attorney, wonder: What will my attorney do?
To understand what a civil attorney does, we must first understand what a civil case is.
A civil case is any case, other than a criminal case, that is filed in court. For further information about the difference between civil and criminal cases, click on my post here.
Civil cases include a vast array of cases, from family, to probate, to debt collection. In this post, I will not discuss the role of family and probate attorneys, as these types of cases are often quite different from other types of civil cases.
A civil attorney represents either the plaintiff (the person filing the suit) or the defendant (the person being sued.) If a civil attorney represents the plaintiff, the plaintiff usually hires the attorney before filing the case. If a civil attorney represents the defendant, the defendant often hires the attorney just after someone sues the defendant. If someone knows he is about to be sued, or if someone has threatened to sue him, the potential defendant will often hire a civil attorney in anticipation of the lawsuit.
The beginning: Petition, Summons, and Answer
If a potential plaintiff hires a civil attorney, the attorney’s first step is to file a petition in court. All that is required in a petition is “a short and plain statement of the claim showing that the pleader is entitled to relief.” The petition merely describes what the defendant has done, that led the plaintiff to sue the defendant. Sometimes, before a plaintiff’s attorney files a petition, the attorney will contact the defendant and see if anything can be settled without going to court.
After the petition is filed, the next step is to serve the petition, and the summons, on the defendant. A summons is a document that tells the defendant that if he does not respond to the petition within a set number of days (in Oklahoma, typically twenty days) then the judge will enter a default judgment against him. The U.S. Supreme Court has held that if the defendant is not served with notice of the lawsuit, it is unconstitutional for a court to enter any judgment against the defendant.
If the defendant does not respond, and the judge enters a default judgment, the judge will typically give the plaintiff whatever the plaintiff has asked for in the petition. For this reason, when a defendant, who has been sued, hires a civil attorney, the attorney’s first step is typically to file an answer in court. If the defendant’s attorney does not file an answer in time, and the judge grants a default judgment, that is grounds for the defendant to sue his lawyer for malpractice.
Sometimes, when a defendant (or his lawyer) files an answer, he will also file a counterclaim. A counterclaim is a petition, where the defendant sues the plaintiff. The plaintiff then has twenty days to answer the counterclaim. Often, both the plaintiff’s petition, and the defendant’s counterclaim, will be litigated in the same case.
Discovery
After the petition and response are filed, the next step in a civil case is often discovery. Discovery is a process where, each party can learn facts about the lawsuit from the other party, without going to court. Discovery has been a part of civil cases since medieval England. (We have records of William Shakespeare giving answers to discovery questions in an English lawsuit.) When the English settled America, they brought English court procedures with them, and discovery is one of those procedures that still exists today.
Types of discovery that may be used are:
Oral Depositions. In a deposition, one party, or his attorney, requires the other party, or a witness, to be present at a certain place and time, where the party or his attorney asks the other party questions, orally. If a party or witness refuses to give a deposition after being served with notice, the party requesting the deposition may ask the judge to order him to give the deposition. Unless the parties agree otherwise, a deposition may not last more than six hours, and may only be taken between 8:00 am and 5:00 pm on a weekday, and may not be taken on a holiday. At a deposition, the witness answering questions will be under oath to tell the truth. The questions and answers will be recorded. Usually, a certified shorthand reporter records the questions stenographically; however, if the parties agree or if a judge orders, the deposition may be recorded by other means. The party who takes the deposition (that is, the party asking the questions) must pay the costs of the deposition, including the shorthand reporter’s fees.
Written Interrogatories. “Interrogatory” is legalese for a written question. Each party may send to the other, up to thirty written questions. The party who receives the questions has thirty days to answer the questions. If the party does not answer the questions within thirty days, the party who sends the interrogatories may file a motion to compel, and ask the judge to order him to answer the questions. If the judge grants the motion to compel, the judge may order the party who has failed to answer, to pay the opposing party’s attorney’s fees.
Written Requests for Admission. Each party may send to the other, up to thirty “requests for admission.” A request for admission is simply a question that calls for a yes or no answer. (Example: Admit that you were driving over the speed limit when your car hit the plaintiff.) The rules that apply to a party who fails to answer interrogatories (thirty-day deadline, motion to compel, and a possible order to pay attorney’s fees) also apply to a party who fails to respond to requests for admission.
Requests for Production of Documents or Things. A party may also request the other party to send documents, or things that are relevant to the case. As with interrogatories, the thirty-day deadline, the motion to compel, and the attorney’s fees order, can also be used against a party who fails to produce documents or things.
Requests for Entry onto Land. A party may also send a request, to the other party, a request to enter onto the other party’s land, so that the party may inspect the land, if the condition of the land is relevant to the issue in the lawsuit. Again, the party receiving the request has thirty days to comply, and if he does not comply, the party sending the request may file a motion to compel and request attorney’s fees.
Requests for Physical and Mental Examination of Persons. If the physical or mental condition of a party is at issue, then the other party may require the party to submit to a physical or mental examination, by a licensed examiner. If the party does not comply, the other party may file a motion to compel and seek attorney’s fees.
Objections to Discovery
A party, who is required to respond to any type of discovery, may file an objection with the judge. If the judge decides that the objection is valid, the party does not have to answer the discovery. If the judge decides that the objection is invalid, the judge will order the party to answer the discovery.
Motions for Summary Judgment
Another common tactic, that a civil attorney uses, is a motion for summary judgment. If there is no genuine issue as to material fact, and one party is entitled to judgment as a matter of law, the judge may grant summary judgment, without a trial. In Anderson v. Liberty Lobby, the U.S. Supreme Court discussed when summary judgment is appropriate.
Out-of-court settlement
A study performed at Cornell Law School found that 66.9%, or over two-thirds, of civil cases, settled out of court. Therefore, one of the most important roles of a civil attorney is to pursue an out-of-court settlement with the other side. Typical means of pursuing an out-of-court settlement are:
Negotiation. This is where the parties and their lawyers negotiate with each other and see if they can come to an agreement. Negotiation is a part of almost all civil cases; for this reason, any good civil attorney needs to be a good negotiator.
Mediation. In mediation, the parties and their lawyers, will meet with a third-party neutral, called a mediator. The mediator is not like a judge, in that he cannot order anyone to do anything. However, a mediator will try to convince each party to come to an agreement. For more information on mediation, click here.
Arbitration. In arbitration, the parties and their lawyers will meet with a third-party neutral called an arbitrator. An arbitrator does not work for the government; arbitrators are employed by private corporations; the parties pay the arbitrator. However, an arbitrator is like a judge, in that he will hear both sides of the case, and then make a decision that is binding on all parties. When parties go to arbitration, they sign an agreement to be bound by whatever the arbitrator rules. Sometimes, when parties enter into a business transaction, they sign a contract agreeing that they will use arbitration to settle any dispute arising out of the transaction.
The trial.
If your case goes to trial, it will either be a jury trial (where a jury makes the decision) or a bench trial (where only a judge makes the decision.) Each party presents evidence, and the judge or jury makes a ruling. If you disagree with a ruling at trial, you may appeal the verdict.