Litigation FAQs

Understanding the Initial Court Papers

Understanding the Initial Court Papers

Pleadings are the legal papers that are exchanged at the beginning of a lawsuit. Your attorney will explain the pleadings to you in the particular context of your case, but the summary that follows will give you a head start in understanding some of the many documents that may become a part of your lawsuit. Please note that some states have different names for some of these documents. The pleadings below are explained from the perspective of the person being sued.

Summons and Service of Process

The Summons is an order from the court in which the lawsuit is to be litigated. It notifies you that you have been sued, refers to the Complaint or Petition, and tells you how long you have to file an answer or seek to have the case dismissed. It will also tell you the consequences of failing to respond in a timely manner: the case may be decided without you and you may be bound by the result even if you didn't participate. Failing to respond on time will cause you to be in default.

The Summons is usually a form document. It will have a preprinted caption that sets forth the name of the court, the names of the parties and a docket number (that's the court identification number). The body of the document will tell you that you have been sued. This language is called the Notice. The Summons will be served on you along with the Complaint, either when somebody actually confirms you are who you are and gives you the documents or places them on or near your person, or when they are mailed to you. The legal term for this is service of process. The Summons, properly served, gives the court jurisdiction over your case and over you. That means the court has the power to make decisions about the controversy set forth in the Complaint and the power to make decisions affecting you with respect to the controversy.

When you are personally served, somebody personally places the Summons and Complaint in your hands, or some reasonably similar act. You also may be properly served if the person gives the papers to a responsible person residing in your home and asks that person to give them to you. A child or teenager may, depending on the circumstances, be deemed a responsible person. If you are served by mail, the rules anticipate that you will return a card or form to the plaintiff's lawyer acknowledging that you have received the court papers. Other kinds of service of process are also permissible, and special rules apply to certain situations.

When you consult your lawyer, be sure to tell him or her how you were served, where you were served, at what time you were served, and any odd circumstances. This information may provide the basis for a motion to dismiss for insufficient service of process. Note that in some states a lawsuit may proceed without the Complaint actually being filed. It is vital that you act promptly.

Complaint/Petition

The Complaint or Petition is a document that sets forth the parties, the legal basis for the court's jurisdiction over the controversy, a statement of the plaintiff's legal claims against you, and the facts giving rise to the claims. The Complaint will also contain a section called a demand for judgment or prayer for relief, or the like. Here the plaintiff will set forth what he or she wants the court to require you to do you, such as pay damages.

The purpose of the Complaint is to give you notice of the factual and legal bases of the plaintiff's claims. Generally, the facts set forth in the Complaint are based on the plaintiff's own knowledge. Sometimes the plaintiff will use the phrase, "upon information and belief" before setting forth some facts. That means that the plaintiff has heard about those facts from someone else, or has formed the belief that the events described in the paragraph happened as described. Most states require the Complaint set forth a short and plain statement of the plaintiff's claims, so don't be surprised if the facts are sketchy, or if they don't seem to tell the whole story.

In some cases, your lawyer may conclude that the facts set forth in the Complaint do not state a legal claim for relief. For example, the Complaint may allege that you did some negligent act that injured the plaintiff but the law provides that you don't have any responsibility to look out for the plaintiff under the circumstances described in the Complaint. Another example is that the facts provide dates when certain transactions or events occurred, but under state law they occurred too long ago for the courts to grant the plaintiff relief.

When this occurs, your lawyer may suggest that you respond with a motion to dismiss for failure to state a claim, a demurrer, or something like that. If this response is made in a timely manner, you will avoid having a default entered against you. Your lawyer may have other suggestions as to why a motion to dismiss should be made:

  1. Lack of subject matter jurisdiction, meaning that the court doesn't have the power to rule on the controversy.

  2. Lack of personal jurisdiction. This means that the court does not have power to make decisions affecting you personally. The court lacks jurisdiction over you if you do not have sufficient minimum contacts with the place where the lawsuit has been filed. For example, if you were involved in an automobile accident at Yellowstone National Park, but you live in Florida and you're being sued in Vermont, it is very possible that the Vermont court does not have jurisdiction over you.

  3. Improper venue. "Venue" refers to the particular location of the court. States have statutes setting forth the places within the state where you can be sued. If you are not sued in one of those places, the site of the lawsuit is inappropriate. A venue may be legally improper even if the court has personal jurisdiction over you.

  4. Insufficiency of process or insufficient service of process. A case may be dismissed if there is a technical defect in the summons (which is rare), or if you were not properly served with the summons and complaint (which is common). Service may be improper for a number of reasons; be sure to tell your lawyer about how you were served so your lawyer can determine whether it could lead to the case being dismissed.

  5. Failure to join a necessary party. Sometimes the plaintiff doesn't sue the right people, or sues only some of them. When a transaction or occurrence involves multiple parties, they should all be made part of the lawsuit. While a court may dismiss the action, the more usual thing courts do is to tell the plaintiff to bring in the other people involved and make them plaintiffs or defendants.

Answer

Your response to the Complaint is called an Answer. Some states use a different word for it. Your answers will address each paragraph in the Complaint and take three different forms: "admitted," "denied," "insufficient knowledge to admit or deny." Your lawyer will review the Complaint with you to determine which facts in the Complaint you know are true, which you believe are not true, and those you have no way of knowing one way or the other.

Your answer may also set forth various affirmative defenses, which are legal reasons why you should not be held liable for the plaintiff's damages. Some of these defenses may also be the basis of a motion to dismiss.

Counterclaim

If you have your own claim against the plaintiff, arising out of the same transaction or occurrence, it should be raised in the Answer in a section titled "Counterclaims." The Counterclaim will be written in a manner similar to the Complaint. Be sure to talk to your lawyer about any claims you think you have against the plaintiff.

Reply to Counterclaim

If you assert a Counterclaim in your Answer, the plaintiff may respond by filing a "Reply." The Reply will "admit," "deny," or assert that the plaintiff lacks information, just as your answer did. The Reply also may assert defenses, just as your Answer did.

Cross-claim

Cross-claims arise when there are many parties to the lawsuit and two or more, who are "aligned" as plaintiffs or as defendants, have their own dispute arising out of the transaction or occurrence. For example, you and another driver have been sued as a result of a multiple-vehicle accident, and you were injured as a result of something the other defendant did. If you want to recover damages for your injuries you must make a claim within the same lawsuit. A Cross-claim (sometimes called a Cross-complaint) is the document you file to bring your own claim into the lawsuit.

Answer to Cross-claim

The person being sued in a Cross-claim will file an Answer similar to the one you filed after you were sued.

Third-party Complaint

Sometimes you will have a legal reason for passing your liability off to another person. A common example is a contract in which the third party promises to pay if you are found liable in a case like the one you're involved in. Another example is when there is no contract between you and the third party, but simple justice requires the third party to cover your liability to the plaintiff. This person may be brought into the lawsuit if you file a Third-party Complaint. Like the regular Complaint, it will set forth the relevant facts giving rise to your claim against the third party and set forth your request for relief.

Answer to Third-party Complaint

The person being sued through a Third-party Complaint must file an Answer, similar to the one you filed, and he or she also may assert Counterclaims against you.

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