ANATOMY OF A LAWSUIT – Part I
Every lawsuit has the same basic parts: A Summons and Complaint by the Plaintiff (the party bringing the lawsuit) and an Answer to the claims in the Complaint by the Defendant (the party being sued).
The lawsuit is commenced with a Summons (also called a “Writ”) and Complaint being served upon the Defendant usually by a Marshal. The Summons is the form that, when signed by a proper officer such as an Attorney, is a directive notifying the Defendant of the existence of the lawsuit and the need to take action in order to protect his or her rights. The Complaint which accompanies the Summons contains the factual allegations that the Plaintiff relies on to support claims against the Defendant. The Defendant is advised in the Summons to file an “appearance” with the court by a specified date known as the “Return Date” on a form that provides the court with the address where the Defendant wants court notices regarding the lawsuit to be delivered. The “appearance” can be filed by the Defendant “pro se” (that is by himself or herself) or by an Attorney admitted to practice before the court. If the Defendant fails to file an appearance by the second day following the Return Date, the Plaintiff can move to default the Defendant for the failure to appear which, if granted, will be taken as an admission by the Defendant that the facts alleged by the Plaintiff in the Complaint are true. If the court grants the default against the Defendant, the Plaintiff is then allowed to proceed to a “hearing in damages”. A hearing in damages is a hearing in which the court will hear the Plaintiff’s claim of injuries, damages or monetary losses and enter a judgment for a dollar amount it feels is appropriate under the circumstances. If the Defendant files a timely appearance or is able to set aside a default and files an appearance before a judgment enters, then the case will continue to a trial.
After having appeared in the action, the Defendant must file an answer or some other pleading which challenges the claims of the Complaint or run the risk of being defaulted for failing to plead, in which case the Plaintiff may again be able to proceed to a hearing in damages. Once an answer is filed by the Defendant, and any defenses raised in the answer are responded to by the Plaintiff, the pleadings will be considered closed and the court will schedule a trial where both the Plaintiff and Defendant can present their evidence for the judge or jury to make a decision on who is right or wrong, and entitled to compensation or other relief.
This is a very basic explanation of a lawsuit which will be expanded upon in future blogs.