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Anatomy of Litigation�

Criminal Litigation

In a criminal case, the plaintiff is the government. It is crucial to understand that it is the state that is vindicating its rights when a criminal case is filed. Sometimes a victim may not wish for prosecution to go forward, but the state may decide to proceed anyway in order to vindicate the rights of the public at large. The anatomy of a criminal case is beyond the scope of this article. Back to Top

Civil Litigation

In a civil case, the plaintiff is an individual against another individual or company.

Courts disfavor claims with little merit and punish claims brought only to harass. However, the unfortunate practical reality is that an unscrupulous plaintiff can file a claim with very little merit and force the defendant to expend time, energy and resources to defend himself against the suit. Only with the assistance of a skilled and knowledgeable attorney can you properly assess the issues and relative risks, rewards, and costs. Back to Top

Commencement of Litigation

Litigation begins with the filing of a complaint in the correct court of law. Filing a complaint in the wrong court could result in dismissal of the case, which could have disastrous consequences for the plaintiff if the plaintiff is prevented from filing a new complaint. For example, a claim might be barred if the deadline for filing a type of claim (a statute of limitation) has passed. In selecting the proper forum, it is important to remember that the court must have power over the subject over the legal issues raised in the complaint (subject matter jurisdiction) and power over the named defendant (personal jurisdiction). Venue, or the administrative assignment of location within the local court system, also must be proper.

Statutory rules of civil procedure establish when a court has jurisdiction, as well as proper venue. However, there often are complex factors involved if the named defendant does not reside within the geographic boundaries of the state in which the court sits.

The complaint basically establishes one or more causes of action, or legal claims. The claims are sets forth as numbered counts, which are different legal theories of liability based on applicable law. Within each count, the complaint should set forth allegations of fact that, if proven, would satisfy each component or element of the legal theory. For example, if one were seeking to prove the crime of larceny, which is the movement of personal property of another with the intent to permanently deprive the owner of that property, then the plaintiff would need to allege facts showing that the defendant (1) moved the plaintiff's personal property and (2) that the defendant possessed the mental intent of permanently depriving the owner of the property. Obviously, finding facts that would prove the mental state of an individual can be difficult. In fact, it is impossible, which is why mental intent often is inferred from objective circumstantial evidence. Thus, defendants when faced with facts that require an inference often assert that the facts alone are insufficient to establish a necessary element of the claim. Obviously, the arguments on both sides can get very philosophical, which is one reason why courts tend to let the case go forward. Courts tend to prefer to give a full hearing on the merits of the case after all evidence has been gathered.

The complaint is where the plaintiff also would demand a jury trial, if one is available to him. Absent a jury demand, a judge will try the case. Whether a jury trial is available to a party is based on the facts of the case and the type of claim being asserted. Without getting into too many details, courts have ruled that when the seventh amendment to the U.S. Constitution states that the right to a trial by jury shall be preserved,means that one has a right to a trial by jury for any matter that would have been heard by a jury in 1789, when the Constitution was ratified. As absurd as it may seem, if the party desires a jury trial, the lawyer in some civil cases must perform a historical analysis in order to determine whether a jury trial is available to a client. Back to Top

Adding the Defendant to the Case

As you might have guessed, filing of the complaint in the proper court is only the first of many steps in the case. Next, the defendant must be added to the case. This is accomplished by serving the complaint, a summons and any court notices on the defendant. Together, these papers are called the process. In a worst-case scenario, defective process or improper service can result in dismissal of the case. An adult not involved in the litigation generally can accomplish service by personally serving the defendant. Rules also provide for service by first class mail or certified mail, but these methods are useful only if the defendant cooperates and returns the acknowledgment-of-service form. Back to Top

Defendant's Answer

Assuming the defendant has been served properly (which can be difficult, particularly if the defendant evades service), the defendant generally has twenty days from the date of service to file an answer to the complaint or to file a pre-answer motion to dismiss. By rule, the defendant's answer must set forth certain affirmative defenses, or those defenses are waived and are forever unavailable to him. Other defenses can be raised later, even at trial. Typically, the defendant also can demand a jury trial in his answer. Back to Top

Motion to Dismiss

A motion to dismiss can be filed before an answer to demonstrate such things as the lack of the court's jurisdiction or a failure to state a claim. In addition, most jurisdictions permit the motion to dismiss to be included in the answer. A motion to dismiss, which sometimes is referred to as a demurrer, essentially asserts that there is no legal claim because an essential element of the claim is missing in the facts alleged. In other words, even if one were to assume that all the facts alleged in the plaintiff's complaint were entirely true, the plaintiff still has failed to assert a valid legal claim. The way courts and lawyers express it is that even if one were to view all the facts in the light most favorable to the non-moving party, there is no dispute of material fact and, therefore, the case must be dismissed as a matter of law. There are additional arguments that can be made, such as failure to plead a particular type of claim with particularity. If a motion to dismiss is granted, the court usually will allow the plaintiff to amend the complaint to fix the defect, but only if it believes that the complaint can be fixed. If the court believes that there are no facts that could cure the problem, it may dismiss the case outright. If the motion is denied, the case proceeds to the next stage. Back to Top

Procedural Issues

Before moving to the next stage, there are several aspects of the answer worth noting. First, any allegation not specifically denied usually is deemed admitted. Second, the answer can contain any counterclaim that the defendant wishes to bring against the plaintiff. In the context of a counterclaim, the defendant is known as a counter-plaintiff and the plaintiff is known as a counter-defendant. Third, the defendant also can bring a claim against another defendant named in the plaintiff's complaint (cross claim), or identify a third party as a new defendant that the current defendant believes is responsible to answer to plaintiff (impleader).

If the defendant does not answer the complaint by the deadline, the plaintiff can move for entry of default judgment. Essentially, this is the first step in obtaining default judgment against the defendant. This occurs only very rarely because courts strongly favor adjudicating cases according to the merits of the controversy. In fact, defendants have been known to answer a complaint months late, with no reason given for their dilatoriness, and still some courts have allowed them into the case. Of course, intentional delay is not an advisable strategy for a defendant because failing to answer a complaint is a violation of a court order (the summons) and risks incurring the wrath of the judge in the form of a default judgment. At a minimum, the defendant will have made a very unfavorable initial impression with the judge. Back to Top

Status Conference

After the defendant answers the complaint, and any motions have been resolved, the next step in the case typically is an initial status conference. At this hearing, the court establishes a general timeline for the next major phases of the litigation: pr-trial discovery, motions, and trial.

Discovery is the process by which the parties to the litigation exchange information that may be used as evidence. Literally, it is the process of discovering information that may or may not become evidence in the case. Information that is discoverable is any information that might lead to discovery of admissible evidence. In other words, information does not need to be admissible in order to be obtained. It is relevant if it could lead one to admissible evidence. It is a very broad standard. Back to Top


The discovery process is governed by rules setting forth required initial disclosures and responses to investigative devices. Major investigative devices include formal questions posed to an opposing party (requests for admissions) by the opposing party, requests for production of documents, and recorded live questioning of the opposing party and witnesses under oath (deposition). Of course, one may use other methods outside the discover rules such as private investigators, requests for information under the Freedom of Information Act, online research, and searches of public records available at the courthouse.

The scheduling order typically will set forth a deadline for the end of all discovery. After the close of discovery, many courts will require the parties to attend mediation, a process in which a neutral arbitrator, sometimes a magistrate, will assess the relative merits of the case and attempt to push the parties toward settlement. If mediation is unsuccessful, the next steps in the case are pre-trial motions and trial. Back to Top

PreTrial Motions

Pre-trial motions, among other things, can seek to exclude certain types of evidence (through a motion in limine) or seek to dismiss the case (through a �motion for summary judgment, which is evaluated under the same standard as a motion to dismiss for failure to state a claim discussed above). Once these motions are addressed, and assuming there is no summary judgment, the case will proceed to trial. Back to Top


Trial is uncommon. Most cases settle before trial. However, if the case proceeds to trial, the process will begin by examination of jurors, if there has been a jury request. This process is known as voir dire. Whether it is a jury or a judge, the entity deciding the case, or parts of the case is known as the trier of fact. In other words, the role of the trier of fact is to determine what the facts in the case where. For example, a plaintiff in an auto accident case might claim that a traffic light was green. The defendant may claim that the light was red. Obviously, someone is wrong (or perhaps both are wrong, and the light was yellow!). The trier of fact's determination of facts often is based on issues of credibility of testimony. Which facts the trier of fact selects can determine the outcome of the case. For example, if a defendant in a traffic-accident case entered an intersection under a red light, that fact might be dispositive in determining whether he operated his automobile in a negligent manner. If the relevant law were to state, hypothetically, that anyone who is involved in an accident is liable for negligence if he ran a red light, then the application of that law to the facts would mean that the defendant is liable for negligence (essentially, the application of law to facts often, but not always, reduces to the most basic of logical syllogisms: (1) If A then B. (2) A exists, therefore B). In many cases involving a jury, the jury will determine the facts of a case and the judge will determine the law that should be applied to the facts.

The trial consists of the following phases: opening statements; plaintiff's presentation of his case; defendant's presentation of his case; closing arguments; jury instructions (if any); verdict; final judgment; and appeal, if any. Back to Top

Opening Statement

An opening statement essentially is a verbal outline of what facts the plaintiff will seek to prove, what evidence the plaintiff will present to establish those facts, and an explication of how the applicable law should be applied to those facts. The opening statement properly utilized is a persuasive roadmap of the case. After the plaintiff's attorney has concluded his opening statement, the opposing party's attorney generally is allowed to present a similar statement. Back to Top

Case Presentation

Each party will present his case, which consists of seeking to persuade the trier of fact to select his version of the facts through presentation of evidence and framing that evidence in a way that most persuasively supports the party's claim. The plaintiff generally is allowed to proceed first because the plaintiff bears the burden of proof in demonstrating the facts that support each element of his legal claim. The burden of proof consists of two component burdens: the requirement that the plaintiff produce evidence that is sufficiently relevant to a given element of a legal claim to avoid dismissal (burden of production) and the obligation to persuade the trier of fact that the evidence produced is sufficient under the applicable standard of proof to establish that element of a legal claim has been satisfied (burden of persuasion). The burden of production and associated legal presumptions may shift between the parties throughout the litigation like a tennis match.

With regard to witness testimony, direct examination occurs when the attorney who called that witness asks the witness questions under oath. The opposing party usually is then provided an opportunity to question the same witness (cross examination). There are many evidentiary rules concerning how a question must be asked in order to prevent bias and other disadvantages to the opposing party. For example, most people are familiar with the leading question, which is a question that suggests the answer (for example, You have never owned a car, right?). The rules generally allow for leading questions on cross examination, or where a witness is deemed to be hostile, but generally not on direct examination. As suggested above, there also are many rules about how one may impeach the credibility of a witness or rehabilitate the credibility of a witness.

After the plaintiff rests his case, the defense will be allowed to present his version of the case. Defense witnesses also are subject to cross examination. 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. Back to Top

Evidentiary Considerations

Trials are very complex. There are many rules of evidence that apply to trials. Evidentiary issues often arise regarding the use of extrinsic and circumstantial evidence, the use of prior testimony and deposition transcripts (to, for example, impeach a witness's credibility), using evidence about a person's character, the use of business records, the use of an out-of-court statement or writing offered to prove the truth of the factual assertion in the statement or writing (hearsay), authentication of records, who may be called as a witness, the use of expert testimony, the assertion of attorney-client privilege, and so forth. One runs a high probability of compromising his rights if he were to proceed with a civil trial without the advice of legal counsel (it is precisely the hazard that the process could prejudice a defendant's rights that a court in a criminal trial will appoint counsel if the defendant cannot afford a lawyer. Such a right to counsel is unavailable in civil cases). Back to Top

Directed Verdict Motions

When both parties have concluded their presentations of their cases, one or motions for directed verdicts often are filed. These are similar to the motion for summary judgment in that the standard of review is that even if the facts as alleged by the non-moving party were assumed to be true, there would be no genuine dispute of material fact. The major difference between a directed verdict and a motion for summary judgment is that the directed verdict is filed after the close or the presentation of all of the evidence to the trier to fact. Because the trier of fact has not be afforded an opportunity to examine and weigh the evidence, courts are reluctant to grant these motions. Again, courts prefer to dispose of cases on the merits of the claim. Back to Top

Jury Instructions

Jury instructions are directions that the judge in the case provides to the jury as to the proper law to apply (through a charging order). The charging order will explain to the jury how it must find if certain facts are determined. A purpose of the charging order is to help ensure that the jury bases its ruling on the facts as applied to the law, rather than irrelevant or emotional factors that could constitute a reversible abuse of discretion. Courts typically permit each party to submit proposed jury instructions, but the trial judge decides the final contents of the charging order. After being charged, the jury will retire for deliberations. Back to Top

Closing Statement

A closing statement is a summation of the case and a plea for the trier of fact to rule in favor of the lawyer's client. The summation should recap the facts proven, how the evidence presented proved those facts, and how the law should be applied to those facts. Although the trier of fact is supposed to render a decision dispassionately and objectively based solely on the facts and the law, lawyers recognize that jurors, in particularly, are human and often base decisions on irrelevant emotional factors. Therefore, some attorneys seek to capitalize on emotions when delivering their closing arguments. Back to Top


The verdict is the trier of fact's decision in the case. The verdict determines which party prevails. If the plaintiff prevails, liability will be assessed against the defendant. The verdict can establish liability very broadly (general verdict) or can establish specific facts related to each component of a legal claim (specific verdict). For example, a general verdict might be: ;We, the jury, find the defendant liable to defendant for the offense of civil battery. Examples of specific verdicts in a civil battery case might be: We, the jury, find that the defendant did intentionally touch plaintiff in an offensive manner and We, the jury, find that defendant's offensive touching of plaintiff occurred without plaintiff&'s consent. The verdict does not always establish the amount of liability, and that may be determined by the judge at a second stage. After liability and the amount of liability are established, the judge will issue a final order in the case. Some effects of a final order are that it triggers certain rules prohibiting re-litigation of cases or certain issues previously decided. It also is the triggering event for an appeal (a case may not be appealed before entry of a final order, except for certain types of interlocutory matters). Back to Top


Appeal is accomplished by through the filing of a notice of appeal and a request that the trial court transfer the record of the case to the court of appeals. Except for rare cases, the court of appeals will decide the case solely on the record from the trial court and will not second-guess the factual findings of the lower court. The court of appeals generally has the power to send a case back to the lower court for a new ruling based on a clarification of the applicable law (remand), to find the opposite of what the lower court determined (reversal), to erase the ruling of the lower court (vacatur), or to uphold the lower court's determination (affirm). The court of appeals even can render a decision that is a combination of any of these options. Back to Top