ANATOMY OF A LAWSUIT – Part II

Now that we covered the basics of a lawsuit from my prior blog (Anatomy of a Lawsuit-Part I) we can expand on that knowledge. In addition to filing an Answer, a Defendant can also file Counterclaims, Special Defenses and claims of Setoff.  A Counterclaim is similar to the Plaintiff’s original complaint.  It asserts claims by the Defendant against the Plaintiff alleging that some conduct by the Plaintiff entitles the Defendant to recover damages in the lawsuit. A Special Defense is a claim that even if the Plaintiff can prove the allegations in its complaint, the Plaintiff is not entitled to recover damages due to some rule of law. The perfect example of a Special Defense is the Statute of Limitations. Under a written contract someone may owe you money, but if you do not bring a lawsuit within the six year statute of limitations for contracts, you may not be able to recover the money owed to you. Finally, a Defendant can assert a claim of “Setoff” in response to the Plaintiff’s lawsuit. An example of how a setoff works is as follows: A landlord sues a former tenant for $1,000.00 in unpaid rent. The tenant had on deposit but did not receive credit for a $750.00 security deposit upon vacating the premises. The Tenant can claim a Setoff against the claims of the Landlord, thereby reducing the amount owed to $250.00. Special Defenses and claims of Setoff can also be asserted by The Plaintiff in response to Counterclaims. In addition to these basic pleadings, there are a variety of motions that can be filed by the parties throughout the litigation process. They include “Motions to Dismiss”; “Requests to Revise”; Motions to Strike”; and “Motion for Summary Judgment”  all of which are complicated legal pleadings that can only be used in certain circumstances, and are more appropriately the subjects of a law school course than this blog.

Once the lawsuit has been commenced and the Defendant has filed an appearance, the parties can also start the “Discovery” process. This is the process of obtaining and documenting evidence that may or may not be used at trial. Normally, the Plaintiffs and the Defendants will file “Interrogatories and Requests for Production” directed to each other, which request answers to written questions as well as production of documents relevant to the claims in the Lawsuit. In certain types of lawsuits the court has adopted standard forms that must be used, and if a party wants to request information beyond the standard forms, he or she must seek the court’s permission. Interrogatories are a series of written questions from one party (Plaintiff or Defendant) to the other in an effort to obtain more information about a claim, setoff or defense of the other. Requests for production are requests for documents or physical items that may substantiate a claim, setoff or defense.

Finally, any party can take a deposition of the parties or any other person who might have any information that relates to a claim or defense, or might lead to more information to substantiate a claim or defense.  Once discovery is complete, the parties usually engage in informal and sometimes formal negotiations to try and resolve the lawsuit. These settlement negotiations will be addressed in my next blog.

2 Comments

  1. avatar paul beisler
    Posted February 1, 2018 at 12:54 pm | Permalink

    thanks very informative

    • avatar Gesmonde, Pietrosimone & Sgrignari, LLC
      Posted February 9, 2018 at 2:39 pm | Permalink

      Our pleasure Paul – Glad you are enjoying our posts!

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