What is the Lawsuit Procedure?
It is vital for a litigant or their representative to be thoroughly familiar with lawsuit procedure
prior to filing a claim, or they risk losing their case on a technicality.
Lawsuit procedure starts when a civil action is commenced.
A civil action in connection to an injury case must be commenced within two (2) years of the date of the incident, otherwise the plaintiff may have his or her complaint dismissed pursuant to the Statute of Limitations on their claim.
A civil action is commenced by filing a complaint with the court in the proper jurisdiction because the court must have jurisdiction over the subject matter and the defendant to be vested with authority to hear the case.
The subject matter is not so much a problem because the Superior Court is granted subject matter jurisdiction over almost any matter presented before it.
Jurisdiction over defendant (personal jurisdiction) however is a bit more complicated.
New Jersey courts have jurisdiction over defendants generally when the defendant has contact with the state and compelling defendant to defend a suit in New Jersey would not offend traditional notions of fairness and justice.
For example, a driver from another state who causes a motor vehicle accident while driving in New Jersey is subject to New Jersey State Court jurisdiction for purposes of a lawsuit filed for injuries against that driver who caused the accident.
Once subject matter and personal jurisdiction is established the complaint should contain a statement of the facts on which the claim is based.
If the plaintiff is an infant then a guardian must represent him or her.
What is a plaintiff and a defendant?
In lawsuit procedure, a plaintiff is the party filing the complaint and the defendant is the person being sued.
Once a complaint is filed it then must be served on the defendant by way of a summons.
A summons and complaint may be served on a defendant by delivering the summons and complaint to the defendant's residence or place of business, etc...
Often such service is performed by the County Sheriff's office where the defendant resides or works.
Once the complaint is served the defendant has 35 days to answer it by filing papers with the court where at this stage of the process the defendant can also counterclaim.
If the defendant fails to answer within the allotted time period then the defendant is risking being found in default by the court.
A default is essentially a forfeit whereby the Court may enter Judgment against the defendant.
Assuming that the defendant does file an answer with the court, then the discovery period begins.
The discovery period is an important process in lawsuit procedure.
This is where the vast majority of a lawyer's time is spent.
Discovery is the process where a party discovers the facts underlying the litigation.
A critical part of the discovery process are the interrogatories which are written questions that are served upon parties.
A lawyer's answers to interrogatories are generally designed to answer as little as possible so follow your attorney's counsel very carefully when completing interrogatories.
Failure to answer interrogatories may mean that the court will dismiss your case.
In addition to interrogatories parties must comply with each others request to produce certain documentation.
A complaint may be dismissed for failure to comply with a document request as well.
Part of discovery may also entail the inspection of property or other things and even undergoing physical and medical examinations.
In a claim for personal injuries, for example, the plaintiff is expected to submit to a physical examination arranged by the defense.
Plaintiff who refuse to submit to such an examination risk having the case dismissed against them.
Depositions are the most important method of discovery.
A deposition permits a lawyer to question a witness under oath to obtain facts.
A deposition offers a preview to the attorney as to how the deponent will appear at trial.
Failure to comply with a request for a deposition exposes a litigant to the dismissal of his case.
Depositions may be videotaped if the witness resides out of state, for example.
The party requesting a deposition pays for the cost of same.
Depositions can be used as evidence when filing motions or at trial.
What is a motion?
A motion is a request that the court enter an order.
A motion is an important part of lawsuit procedure.
The most common motions filed with the court are motions to dismiss the complaint and motion to compel discovery.
Once the discovery period is over but before the trial, attorneys decide if there are any motions that they should file on behalf of their respective clients.
So for example if a defense attorney believes that the plaintiff's case would fail at trial he may want to strongly consider filing a motion to dismiss the case at this stage of the process in order to spare his client and the court the time and expense of a trial (Motion for Summary Judgment).
An important element of lawsuit procedure is the Courts concern about what they term as "judicial economy" and courts are eager to dismiss a claim if they feel that it is a waste of everyone's time or in other words is unfounded or without merit.
A motion for summary judgment is the most common motion to dismiss filed with the court.
A summary judgment motion is an assertion sought by a party that there is no dispute of fact and that given the undisputed facts and the law as it relates to the case at hand compels the court to dismiss the case.
Other motions that may be filed are motions for reconsideration if a party believes that the Judge erred in his ruling and should reconsider his prior decision.
Once discovery is complete and all motions if any have been filed and decided with the court, the matter moves forward towards a trial.
The trial is the last part of lawsuit procedure.
At trial the plaintiff must prove his case by the "preponderance of the evidence."
In New Jersey this means that the juror must believe that the defendant is at least 60% at fault for the subject of the lawsuit.
However, the vast majority of cases are resolved by way of settlement prior to arriving at the trial phase of the process.
In truth, if every case before the court had to be resolved by way of trial, the entire system would collapse because there would not be enough time and public resources to achieve that aim.
Lawsuit procedure encourages parties to settle their differences without a trial because outcomes of trials are notoriously unpredictable.