Civil Procedure

Civil procedure consists of four fairly well-defined phases: (1) pleadings, (2) discovery, (3) trial and judgment, and (4) conclusion of litigation.

Phase 1: Pleadings

The general term pleadings refers to the series of written claims and defenses that establish what is in controversy or at issue, on what grounds the action is being based, and who is involved.


As the first step in a civil lawsuit, the plaintiff’s attorney files a complaint, which may also be known as a petition or a declaration, against the defendant. Where courts of equity exist, the first pleading in an equity action is called a bill of complaint or a bill in equity. The complaint states the specific injury suffered by the plaintiff, the acts of the defendant alleged to have caused that injury, and the remedy, as damages, being sought.


The defendant must be given positive notice that a complaint has been filed and that a response to the complaint must be made. This notice is called asummons, and in most states it must be served with a copy of the complaint. Once the action has been initiated by filing and serving the complaint and summons, it cannot be terminated unless specified legal steps are taken. Also, once notice is received, the defendant must make some response to the summons and complaint within a specified time in order to avoid a default judgment.


Rules of court procedure require that a complaint be clear, definite, and complete and that it be prepared in accordance with the law and the rules of the court. When the defense believes that the complaint is not in accordance with court rules or the law, the attorney may object to it by means of various documents such as a demurrer, a motion to strike, a motion to quash, or a motion for more definite statement. These documents, and others, attempt to invalidate the complaint on the ground that it is not supported by a cause of action recognized by law. As these documents are based on points of law, most courts require a supporting document to be prepared and attached. This document may be a brief, a legal memorandum, or a memorandum of points and authorities.


The next step in a civil action is the preparation of an answer, in which the defendant responds to the factual allegations in the complaint. The answer must state any affirmative defenses, as estoppel, that the defendant intends to use against the plaintiff’s claims or the defendant will not usually be allowed to assert them during the trial. Court rules in many jurisdictions permit the answer to contain a counterclaim against the plaintiff. The counterclaim does not reply to an allegation but states a cause of action that the defendant has against the plaintiff. The defendant may also make a cross-claim orcross-complaint against another defendant. The cross-claim may be filed and served as a document separate from the answer, or it may be combined with the answer into one document. Additional parties other than the original plaintiff and defendant may be joined and made subject to the counterclaims, cross-claims, and third-party claims during the exchange of pleadings.

Phase 2: Discovery

When the initial pleading stage of litigation is concluded, the attorneys will attempt to locate all witnesses and uncover all evidence while learning as much as possible about the issues. This process is known as discovery. Numerous discovery devices are available, and the attorney must decide which devices to use and when. Some of these devices are discussed below.


Information may be obtained by means of a written set of questions in a court document, usually entitled interrogatories, that require written answers. Testimony may also be taken by asking witnesses oral questions. This discovery activity is known as taking a deposition or using oral interrogatories. The manner in which the questioning can be conducted is precisely determined by the rules of civil procedure.


When witnesses are required to give testimony in court, they must receive official notice that they are to appear. This notice is called a subpoena. Some states require that witnesses who are to give depositions be subpoenaed. If an attorney knows that a witness may refer to certain documents or other evidence in the testimony — either in court or in a deposition — or if the attorney wants certain items admitted as evidence, a document called a subpoena duces tecum (“under penalty you shall bring with you”) is required. This document tells a person to appear at a specified time and place with those particular exhibits (documents, photographs, or other items) related to the suit.

Other discovery devices

The attorney may petition the court for the right to inspect evidence or documents and also for the right to order a physical or mental examination of a party.

Pretrial conference

After all preliminary work has been completed and the case has been set for trial, the attorneys of record may meet informally with the judge to discuss the issues involved in the lawsuit. These conferences are not required in all states. At a pretrial conference the attorneys discuss the issues, the allegations, and the facts involved in the case. As the issues are discussed, information is exchanged; and sometimes evidence is produced that results in a request to dismiss the litigation without trial. Sometimes certain aspects of the case can be settled by stipulation, or agreement, between the attorneys with the approval of the judge. Because trials are expensive in terms of time, emotion, and money, both parties may reevaluate the situation and decide to settle out of court.

Conclusion of litigation without trial

Many lawsuits never go to court. Sometimes the reason is personal, having to do with the attitude of the parties. On the other hand, a high percentage of lawsuits are terminated before trial for legal reasons. Sometimes the pleadings and evidence gathered during discovery show that there is no factual issue to be tried, and so the judge enters a summary judgment upon motion by one of the parties. Sometimes one of the parties or the attorney deliberately does not respond within the time specified and a default judgment is entered. At other times the parties mutually agree to terminate the suit. There may also be a discontinuance or dismissal for a variety of reasons. The plaintiff may voluntarily discontinue the case, or the case may be involuntarily dismissed upon motion by the defendant because the statute of limitations has run out or the plaintiff has failed to prosecute — that is, has not taken steps to bring the case finally to trial. A dismissal without prejudice allows the plaintiff to act on the cause of action again later on; a dismissal with prejudice bars later action. Whatever the reason for concluding a case without trial, the attorneys of record must prepare, file, and serve certain documents, as motions and supporting briefs, in order to bring the case to a conclusion.


When a case is dismissed as the result of a settlement out of court, the party who is to make restitution usually will not do so unless given a properly executed agreement most often called release or release of all claims. In this document, the person who receives the settlement agrees never again to bring suit for additional costs on the matter in dispute.

Phase 3: Trial and judgment

If a case cannot be settled by mutual agreement and if there are no grounds for dismissal or default, the case must go to trial for a decision on the merits. Rules have been developed which carefully prescribe the procedures to be followed for setting the matter for trial, conducting the trial, and entering the judgment of the court.


When either attorney feels that the case is ready for trial, the clerk of the court is notified through the filing of a memorandum setting for trial or anotice of trial. The calendar clerk places the trial on the calendar, meaning that it is added to the list of cases that are going to be tried. The clerk notifies the parties to the action when and where the trial will be held. For the customary sequence of a trial, refer to the preceding section on steps in a criminal proceeding. In civil cases the plaintiff’s attorney rather than a prosecutor argues the case, and in most jurisdictions the plaintiff’s attorney is permitted a rebuttal immediately following the defense lawyer’s final argument. After the plaintiff has presented evidence, and before presentation of the defense, the defendant may move for a dismissal for failure to state a claim for which relief may be granted.


Not all civil actions are entitled to be adjudicated by jury trial. The U.S. Constitution preserves the right to jury trial for common-law actions, but actions originally brought in equity courts do not enjoy this right. Where there is a right to a jury trial, the plaintiff may waive this right. When there is no jury, the judge hears the case, applies the law, and issues a judgment in favor of one party or the other based on the facts and the merits of the case. When a case is heard before a jury, the jury decides in favor of one of the parties on the basis of the facts presented and sets the amount of damages. In civil cases the judgment or decree is issued in favor of the party judged to have met its burden of proof. The party in whose favor judgment is made is the prevailing party.

Phase 4: Conclusion of litigation

After the court hands down a judgment, the losing party has several options: (1) to satisfy the judgment (as by paying the damages); (2) to fail to perform satisfaction, in which case the prevailing party may have to take measures to enforce the judgment (as by attaching the losing party’s property); or (3) to appeal the case to a higher court. If the losing party chooses to appeal, no payment is made to the prevailing party. The attorney for the losing party must make the appeal within the time limit prescribed by law or lose the right to appeal.


The judgment is a court order requiring the losing party to provide satisfaction in some manner to the prevailing party. Satisfaction may take several forms: the losing party may be required to pay court costs and monetary damages to the prevailing party, to perform a specified action requested by the other party, or to stop a certain action to which the other party objects. Once satisfaction has been made, the court must be given a document indicating that the judgment has been satisfactorily carried out.

In settling court costs the prevailing party must submit for the court’s approval a statement of all recoverable expenses incurred in the course of litigation. The appropriate motion is filed and served on opposing counsel. The opposing party may object to the costs indicated and file a motion to that effect. The court will rule on both motions. If the court allows all costs, the order signed by the judge is filed, and official copies are served on opposing counsel. Normally each side pays its own attorneys’ fees. However, in some limited circumstances the losing party may have to pay the prevailing party’s attorneys’ fees in addition to the court costs.

When the prevailing party has been paid all money owed, both damages and costs, the prevailing attorney files a document stating the amount of money received and declaring that full satisfaction of claims has been made. It also shows that judgment was entered into the official records. The document must be signed by the prevailing party, filed, and served on opposing counsel.

If the losing party fails to provide satisfaction as adjudged, various special proceedings may take place that could result in the seizure of person or property by the court.

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