THE CIVIL LAWSUIT: A BASIC GLOSSARY

By W. Russell Congleton

                 Following are some common words and phrases that you will hear during the course of your civil lawsuit.  First, though, it is important to bear in kind the essential difference between a criminal lawsuit and a civil lawsuit.  A civil lawsuit most often involves at least one person suing another person for money damages.  In a criminal lawsuit, the state acts as the plaintiff and seeks to have someone pay a fine, spend time in jail, or both. In a civil lawsuit, a private person or company is the plaintiff and seeks only to recover money damages or property as a result of some act or omission by the defendant.  With that simple distinction between a civil lawsuit and a criminal case in mind, we can turn our attention to the nuts and bolts of a civil lawsuit and some of the common words and phrases you will encounter in the lawsuit. 

1.                  Complaint.  The Complaint is one of the two documents that begin most lawsuits.  In the Complaint, the plaintiff sets out the basic facts that she believes entitles her to recover money damages or property from the defendant.  The Complaint identifies the parties to the lawsuit and announces the nature and purpose of the lawsuit.

2.                  Summons.  The Summons is the second document that appears at the beginning of the lawsuit.  The Summons is the official announcement from the Clerk of the Court to the Defendant that a lawsuit has been filed against him, identifying the Plaintiff’s lawyer, if any, and letting the Defendant know in general terms what eh has to do to respond to the lawsuit. Typically the Summons is prepared by the Plaintiff’s lawyer, but is issued by the Clerk of Court of the County in which the lawsuit is filed.

3.                  Service.  Once the plaintiff has filed her Complaint and obtained the Summons from the Clerk of Court, she must serve the Summons and Complaint on the defendant.  The Rules of Civil Procedure provide a number of ways that service can be accomplished.  Traditionally, service is accomplished by the delivery of a copy of the Summons and Complaint to the defendant by the Sheriff of the county in which the defendant resides.  Other possible methods of service include certified mail with a return receipt requested, an overnight delivery service such as Fed Ex or UPS Next Day Air.  If the defendant is a corporation rather than an individual, the Summons and Complaint can be served on any officer of the corporation, on the “registered agent” of the corporation, or upon a person “who is apparently in charge of the office” at the corporation’s principal place of business.

4.                  Answer.  As the name implies, the Answer is a formal response to the Complaint.  In it, the defendant responds to the allegations of the Complaint and brings to the attention of the court any “affirmative defenses” he may have.  The defendant normally has 30 days from the date he was served with the Summons and Complaint in which to file his Answer, but the Rules of Civil Procedure allow for an extension of time which gives the defendant an additional 30 days in which to file his Answer if he so desires.  If the defendant fails to answer, the plaintiff can ask the Court to enter a default and a default judgment against the defendant.  The defendant can also raise any claims for damages that he believes he may have against the plaintiff.  Such claims are known as “Counterclaims.”  Counterclaims are expressed in the same way as allegations in the Complaint; the defendant alleges a set of facts that give rise to a claim for money damages in his favor against the plaintiff.  In addition, the circumstances may be such that the defendant can shift his liability for the plaintiff’s damages to a third party.  In that case, the defendant can file a “Third Party Complaint” in which he is the plaintiff and a new defendant is added.  [Note: Lawyers often refer to the Complaint and the Answer together as the “pleadings” in the case.]

5.                  Discovery.  If you were a fan of “Matlock” or “Perry Mason” or enjoy John Grisham novels involving civil lawsuits, it’s easy to get the impression that trial is a matter of hiding information in order to ambush the opposition at the appropriate time.  Thankfully, that is not the case.  The Rules of Civil Procedure create a system that requires the exchange of information between the parties.  These rules are known as the “rules of discovery.  The courts and legislative bodies in the United States strongly agree that the parties to a lawsuit should share information.  Sharing information can result in the settlement of lawsuits without the expense and time required to resolve disputes through trials.  Therefore, you will be asked by your attorney to supply information that she can share with the other side in the case.  There are several methods of discovery provided in the court rules.  The method chosen by your attorney will largely depend on the kind of case it is and the kind of information that is needed.  For example, if you believe that the other side is in possession of important documents, your attorney will probably serve a “Request for Production of Documents.”  Such a request can include requests to produce traditional paper documents, but can also include emails and other electronic documents as well.  Your attorney may also send the opposing party “Written Interrogatories.”  As the name implies, “Interrogatories” are written questions that the other party is required to answer.  The answering party then verifies the answers by an affidavit attesting that the answers are true to the best of her knowledge.  Another useful tool in discovery is the “Request for Admission.”  Again, as the name implies, when your attorney uses this discovery tool, she is asking the other side to admit certain important facts.  If, for example, you and the other party were partners and the other party was the managing partner, he may have all the company records.  Your attorney may ask him to admit that he was the managing partner and admit that he had sole possession of the company books and records.  The main purpose for requests for admissions is to reduce the number of facts that have to be proved to the jury at trial.  In some situations, the admissions may go straight to the heart of the case and help bring it to a speedy conclusion.  The final, and most heavily utilized, means of discovery is the “deposition.”

6.                  Depositions.  The deposition is at its simplest a formal question and answer session.  Your attorney may ask the defendant, or any potential witness in the case, to submit to a deposition.  The party or witness then appears at an appointed time and place to answer your attorney’s questions.  The party or witness is placed under oath, just as she would be at a trial, and the questions and her answers are recorded by a court reporter.  While this process is often a simple rehearsal for the trial, it often yields very important information and underscores the strengths and weaknesses of your case.  If the deposition involves an officer of a corporation, the notice of deposition may also require the individual to bring corporate books and records with her as specified in the notice of deposition.  Depositions require a substantial amount of attorney time and the party requesting the deposition is responsible for paying the court reporter for her time as well.  In addition, the party also has to pay the court reporter to prepare a transcription of the deposition.  Depositions are a powerful tool in a civil lawsuit.  They often result in the discovery of new and important information not previously available, and consequently can result in changed attitudes toward settlement of the dispute. 

7.                  Summary Judgment.  This procedure is an increasingly important facet of civil lawsuits in current legal practice.  The Rules of Civil Procedure include a rule allowing a court to issue a “Summary Judgment.”  According to Rule 56, a judge may render a final judgment in the case “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  What that legalese boils down to is this: if the judge is convinced that the real issues of fact are all resolved, there is no point in holding a trial, the purpose of which is to find the facts.  In effect the judge rules without a trial at all, that, as a matter of law, one of the parties has won the case.  Courts throughout the United States have ruled that the procedure does not violate the Constitutional guarantee of the right to trial by jury (found in the Seventh Amendment of the United States Constitution and Article I, Section 17 of the North Carolina Constitution).  The rationale for those decisions upholding the summary judgment procedure is that the judicial system as a whole benefits when cases that have no real factual issues in controversy are removed from court dockets by summary judgment. 

8.                  Mediation.  Unless the court grants a motion to dispense with mediation, a mediated settlement conference is held in every civil case filed in the Superior Court Division in North Carolina.  Mediation is an informal process in which the two sides (the parties and their lawyers) sit down with an impartial third party who has been trained in negotiating resolutions to civil disputes.  The mediator may be a retired judge, or an experienced attorney who has received special training in dispute resolution.  The parties have an opportunity to select a mediator, but if they fail to agree on someone, the court will select a mediator.  At the mediation, the mediator will first convene the session with everyone present in the same room (the plaintiff, the defendant, and their lawyers).  The mediator will briefly explain the process and then allow each lawyer to make a brief presentation of the case.  After those presentations are concluded, the mediator will usually put the parties in separate rooms and move back and forth between them discussing the possibilities of settlement with the two sides.  If the parties reach an agreement, the mediator will put the basic terms of the agreement in writing and report the settlement to the court.  If the parties do not reach a settlement, the mediator will report to the court that the parties reached an impasse, and the case will continue toward trial.  Generally the parties share the cost of the mediator, which involves compensating her for her time and travel expenses.  If the parties reach a settlement, they may agree that one or the other of them will pay the entire cost of the mediation as part of the settlement. 

9.                  Arbitration.  Arbitration is another method of “alternative dispute resolution” that can be used to resolve a civil dispute without the necessity of a trial.  Some contracts contain provisions that require disputes to be arbitrated rather than tried in a court of law.  That procedure is often referred to as “binding arbitration,” meaning that the parties are “bound” by the outcome of the arbitration and have no right to appeal.  More common under North Carolina law is Court-Ordered arbitration.  Court-Ordered arbitration is the focus of the remainder of this paragraph.  With certain specific exceptions, cases proceeding in the District Court Division are subject to Court-Ordered arbitration.  Arbitration is similar to mediation in that the dispute is resolved by a neutral third party with special training.  Even more often than with mediators, arbitrators are often retired judges.  The primary difference between mediation and arbitration is that arbitration is more like a trial.  The arbitrator listens to testimony from the parties and other witnesses and has the power to require the witnesses and the parties to testify under oath, just as they would in a trial.  The arbitrator also views and evaluates all other forms of evidence (documents, for example) that the parties present.  At the conclusion of the testimony, the arbitrator issues an award which becomes a judgment of the Court unless the case is settled, dismissed or there is a demand for “trial de novo.”  The party who loses in the Court-Ordered arbitration, has a right to file a demand for “trial de novo” within 30 days after service of the arbitrator’s award.  “Trial de novo” simply means that the District Court will conduct a full trial of the case as if the arbitration never happened.  In fact, the arbitration cannot be mentioned in the presence of the jury unless the parties agree and the Court approves. 

10.              Motions.  Your lawyer will speak to you with some frequency about motions.  In many cases, the Answer will contain a number of motions.  In the simplest sense, a motion is a formal request asking the judge to order someone to do something, or to stop doing something.  Motions that are to be decided before trial are made in writing and can range from motions to dismiss the case to motions to compel a party to respond to discovery.  The courts schedule regular sessions for the judge to make decisions on motions.  It is also common for attorneys to make oral motions during trial, usually concerning some piece of evidence or the testimony of a witness.  The judge will often decide the oral motion on the spot, but may take the motion “under advisement,” meaning that the judge wants to give the matter additional thought before making a decision. 

       These are just a few of the most common terms that you will encounter in a civil lawsuit.  Of course there are many other matters that will come up.  To try and capture all of those words and phrases here is beyond the scope of this simple compendium of basic information.  Similarly, nothing here should be regarded as specific legal advice.  Each case takes on its own rhythm and develops issues unique to it.  The purpose of this glossary is simply to demystify a few of the terms that come up in nearly every case.  Having a basic understanding of these terms should help you better to communicate with your lawyer.  In addition, it can help you feel less intimidated by the legal process itself.  The terminology may not always be familiar, but the processes defined by the terms are orderly and logical.  The processes are designed to ensure that fair, equitable and just results are reached through a logical progression of steps rather than by random chance.