PARTIES IN A CIVIL LAWSUIT
A civil lawsuit is an adversary proceeding
between (or among) two or more parties who have competing interests. Let's
start with the basics. The party who brings the suit to court is called the plaintiff. The party
sued by the plaintiff is called the defendant.
A defendant who has a claim
against the plaintiff can bring what is known as a counterclaim, and at
that point the defendant becomes what is known as the
"counter-plaintiff" with respect to the counterclaim against the
plaintiff (who is now also known as the "counter-defendant").
If that's not confusing
enough, when the defendant or counter-defendant believes that a third party may
be legally responsible for the claim asserted against them by the plaintiff,
the defendant may bring that third party into the lawsuit as a third-party defendant.
Ideally, each civil lawsuit will include all parties who may potentially be
needed to award complete relief, so that multiple proceedings are avoided.
(Learn more about Pleadings and Motions in a Civil Case.)
Courts require that civil
lawsuits be brought by "the real party in interest", which means that
the party bringing suit is legally entitled to seek the relief requested.
Are the Proper Parties Named?
It is important to have the
proper parties named in a civil lawsuit. Courts require that civil lawsuits be
brought by "the real party in interest", which means that the party
bringing suit is legally entitled to seek the relief requested. In the case of
a minor, suit must be brought by someone of legal age who has the authority to
sue on the minor's behalf; this is typically a person who serves as the minor's
guardian or "next friend." In the case of an incompetent person, suit
must be brought by that person's court-appointed guardian. If the person
bringing suit cannot establish his or her legal capacity to do so, the suit
will be dismissed.
Issues may arise with
respect to the naming of the proper party or parties when a plaintiff sues a company
as opposed to an individual. For example, a company may be doing business under
a certain name, but that name may not be the same as the entity responsible for
the claim (e.g., ABC Corporation, doing business as Acme Auto Parts). In these
cases, the plaintiff must research the local and state company registration
databases to determine the name of the entity that is legally liable, because a
suit brought against an entity that bears no legal liability will be dismissed.
Parties and the "Burden of Proof"
Once all of the necessary
parties are joined in the lawsuit, the case proceeds with pre-trial discovery and other proceedings preliminary to
the trial itself.
The plaintiff, as the
moving party, bears the "burden of proof" on all of the elements of
its claims. In a civil case, this burden of proof requires the plaintiff to
establish its case by a "preponderance of the evidence," which means
that the finder of fact (i.e., the jury, or the judge in a non-jury trial) must
conclude that the scales tip more than 50-50 in the plaintiff's favor.
The defendant has no burden
of proof (except as it pertains to any affirmative defenses raised in response
to the plaintiff's claims) but as a practical matter the defendant must
persuade the finder of fact that the plaintiff's claim lacks merit. If it fails
to do so, the plaintiff can be expected to prevail.
Parties and Trial Procedure
At trial, the plaintiff
proceeds first in the presentation of evidence by way of witness testimony and
the introduction of exhibits. When the plaintiff rests its case, the defendant
is afforded the opportunity to offer its own witnesses and exhibits. The
plaintiff then has the chance to put in its rebuttal to the defendant's case,
and in that way the plaintiff is said to have the "last word" at
trial.
When all the evidence has
been received, the attorneys for both the plaintiff and defendant are allowed
to present closing arguments that summarize the evidence and argue for a
verdict in their client's favor. The ultimate decision as to who wins and who
loses is then placed in the hands of the jury or the judge.
If
the trial court verdict is appealed, the party who files the appeal is known as
the "appellant" and the opposing party is known as the
"appellee." Learn more about Appeals and Standards of Review.
Class action
A class
action, class suit, or representative action is a type of lawsuit where one of the parties is a group of
people who are represented collectively by a member of that group. The class
action originated in the United States and is still predominantly a U.S.
phenomenon, but several European countries with civil law
have made changes in recent years to allow consumer organizations to bring
claims on behalf of consumers.
Types Of Cases
Learn about civil cases – the standard of
proof the court uses, common types of civil cases filed, and the stages of a
civil case.
Criminal Cases
Civil Cases
Standard of Proof in a Civil Case
Types of Cases in Civil Court
Stages of a Civil Case
Civil Cases
Standard of Proof in a Civil Case
Types of Cases in Civil Court
Stages of a Civil Case
Criminal Cases
Criminal cases involve
enforcing public codes of behavior, which are codified in the laws of the
state. In criminal cases, the government prosecutes individuals for
violating those laws (in other words, for allegedly committing a crime).
Punishment in criminal cases can include fines, community service,
probation, prison, and the like.
CAUTION!
The Civil Law Self-Help Center does not provide information or forms for
criminal cases. You should not use the information on this website if you are
involved in a criminal matter. To learn more about criminal matters, visit your
local law library. Click to visit our LAW LIBRARY page to learn more.
Civil Cases
Civil cases involve
conflicts between people or institutions such as businesses, typically over
money. A civil case usually begins when one person or business (the
"plaintiff") claims to have been harmed by the actions of another
person or business (the "defendant") and asks the court for relief by
filing a "complaint" and starting a court case. The plaintiff
may ask the court to award "damages" (money to compensate the
plaintiff for any harm suffered), or may ask for an "injunction" to prevent
the defendant from doing something or to require the defendant to do something,
or may seek a "declaratory judgment" in which the court determines
the parties' rights under a contract or statute.
Eventually, to resolve the
case, the court (by way of a judge or jury) will determine the facts of the
case (in other words, figure out what really happened) and will apply the
appropriate law to those facts. Based on this application of the law to
the facts, the court or jury will decide what legal consequences ultimately
flow from the parties' actions.
A case also might be
resolved by the parties themselves. At any time during the course of a
case, the parties can agree to resolve their disputes and reach a compromise to
avoid the expense of trial or the risk of losing at trial. Settlement often
involves the payment of money and can even be structured to result in an
enforceable judgment.
In most civil cases,
the judge or jury has to make a decision about which side wins based on a
standard called "preponderance of the evidence." This means
that the winner's side of the story is more probably true than not true. It
does not mean that one side brought in more evidence than the other side.
It means that one side's evidence was more convincing than the other's.
In some cases, the standard
for reaching a decision is "clear and convincing evidence."
This means that the winner needs to prove that his version of the facts
is highly likely. It is an intermediate degree of proof, more than
"preponderance of the evidence" but less than the certainty required
to prove an issue "beyond a reasonable doubt" (the standard in
criminal cases).
Civil courts handle a wide
variety of cases involving numerous legal issues. Very broadly, civil
cases may involve such things as, for example,
- Tort claims. A "tort" is a wrongful act (sometimes called a "tortious" act), other than a breach of contract, that results in injury to someone's person, property, reputation, or the like, for which the injured person is entitled to compensation. Cases involving claims for such things as personal injury, battery, negligence, defamation, medical malpractice, fraud, and many others, are all examples.
- Breach of contract claims. A breach of contract case typically results from a person's failure to perform some term of a contract, whether the contract is written or oral, without some legitimate legal excuse. Cases involving claims for such things as not completing a job, not paying in full or on time, failing to deliver goods sold or promised, and many others, are all examples.
- Equitable claims. An "equitable claim" asks the court to order a party to take some action or stop some action. It may or may not be joined with a claim for monetary damages. Cases where a party is seeking a temporary restraining order or injunction to stop something (perhaps the destruction of property, the improper transfer of land, the solicitation of a business' customers) are examples.
- Landlord/tenant issues. Civil courts handle disputes arising between landlords and tenants. Cases where a landlord is trying to evict a tenant from a rental property or a tenant has moved out and is suing a landlord for the return of a security deposit are examples.
Most civil lawsuits can be
divided into the stages listed below:
- Pre-filing. During the pre-filing stage, the dispute arises and the parties make demands, try to negotiate a resolution, and prepare for the possibility of a court action.
- Initial pleading. During this stage, one party files papers (called a "complaint") to start the court action, and the other party files some type of response (an "answer" or maybe a "motion").
- Discovery. During the discovery stage, both sides exchange information and learn about the strengths and weaknesses of the other side's case.
- Post discovery/pre-trial. In this stage, the parties start preparing for trial; they get their evidence and witnesses in order, they might engage in some type of settlement conference, and they may file motions with the court to resolve the case or limit the issues for trial.
- Trial. During this stage, the case is actually heard by the judge or a jury (which could last for a couple of hours or a couple of months, depending on the complexity of the case); witnesses are examined, evidence is presented, and the case is eventually decided and a judgment entered.
- Post-trial. During the post-trial stage, one or both of the parties might appeal the judgment that was entered at trial, or the winning party might try to collect the judgment that was entered.
But not every civil case
follows these stages. Some cases (summary eviction cases, for example) have
unique procedures that are set out in the court's rules or in the governing
statutes. To learn about the stages involved in a particular type of
case, you can visit your local law library.
Parties in a Civil Case
Before
we discuss the steps (or stages) in a civil case (in chapter 9), we first need
to define and discuss the parties involved. Some of these parties also are
involved in criminal cases, although we will not specifically address them in
that context here. The parties involved in a civil case are plaintiffs, defendants, attorneys, judges,and juries.
Plaintiffs
As discussed in chapter 4 at 4.2, a plaintiff is a party who brings a civil case claiming to have been injured by the wrongful conduct of a defendant. A plaintiff brings a civil case by filing a lawsuit (i.e., suing) in the appropriate court, which we will discuss in chapter 9. In some cases and courts, a plaintiff may be called a petitioner.
Plaintiffs
As discussed in chapter 4 at 4.2, a plaintiff is a party who brings a civil case claiming to have been injured by the wrongful conduct of a defendant. A plaintiff brings a civil case by filing a lawsuit (i.e., suing) in the appropriate court, which we will discuss in chapter 9. In some cases and courts, a plaintiff may be called a petitioner.
A plaintiff must have standing to
bring a suit. Standing refers to a party’s right to assert a legal claim in a
case. The general rule is that only a party who is directly injured by another
may file a lawsuit. Therefore, Party A may not sue on behalf of his friend
Party B who was injured in an automobile accident with Party C (unless, of
course, Party A was involved in the accident as well). Other types of standing
arise in class
actions and derivative
actions. We will briefly discuss derivative actions in chapter
20.
A class action (or representative action) is
a type of lawsuit in which a group of plaintiffs bring claims collectively
against a defendant or group of defendants (or, less frequently, where a
diverse group of defendants demand to be treated as a class against a single or
group of plaintiffs). Modern class action law was developed in the United
States; it may have its antecedent, however, in the medieval English phenomenon
of “group litigation,” which allowed social groups such as villages or guilds
to sue or be sued.[1] A
class action suit may be brought for virtually any reason, but is most common
(and most widely publicized) in two areas: (1) mass tort, where a
defendant or defendants is alleged to have caused tortious harm to a large body
of persons or organizations; and (2)
shareholder rights, where shareholders of a corporation or
equity holders of another type of business entity file a joint suit to protect
certain rights under corporate (or analogous business entity) law. We will
discuss shareholder rights in chapter 20.
A related type of
litigation is multidistrict
litigation (MDL), which is designed to handle multiple
complex cases (usually tort actions) filed in different federal district courts
that arise out of the same claims and facts.[2] Often
the cases consolidated in MDL are themselves class action suits. An MDL may
involve only a few or hundreds of cases. The disposition of the MDL cases is
determined by the Judicial Panel on Multidistrict Litigation (JPML), which is a
committee of seven federal district and appellate judges appointed by the Chief
Justice of the US Supreme Court. In many instances, all of the cases are
consolidated by transfer to a single district court. This can lead to
extraordinarily complex situations where judges are forced to consider the laws
of multiple states and apply them to different defendants and plaintiffs. In
some other cases, the individual actions are heard in their separate districts
but are coordinated for pretrial purposes (for example, for motion practice and
discovery, which we will discuss in chapter 9 at 9.2 and 9.4, respectively).[3]
Defendants
A defendant is a party being sued by a plaintiff in a civil case. In a lawsuit, a plaintiff claims to have been injured by the wrongful conduct of a defendant. In some cases and courts, a defendant may be called a respondent.
Attorneys
An attorney is a person who practices law and acts as an advocate for a party. In the United States, the term attorney, counselor, and lawyer are synonyms. Also, sometimes an attorney may be referred to as an “esquire,” designated as “Esq.” after the attorney’s name. An attorney must be admitted to practice law in a particular state or federal jurisdiction to represent parties in that state. If admitted to practice law in a state, an attorney is said to be a member of the state’s bar. In most states, an attorney may become a member of the bar by graduating from a law school accredited by the American Bar Association (ABA) and passing the state’s bar exam. In some states, there are other ways to become a member of the bar (e.g., practicing law for a certain period of time in another state and then “waiving” into the bar).
Attorneys have a fiduciary relationship with their clients. This means that an attorney has a duty to act for the benefit of a client. In fact, the ABA Model Rules of Professional Conduct (on which most state rules for attorneys are based) provide that an attorney (as an advocate) must zealously assert the client’s position under the rules of the court system. Another aspect of the fiduciary relationship is the attorney-client privilege. Under the attorney-client privilege, an attorney must not divulge the substance of confidential communications between the attorney and client, unless authorized by the client. The attorney-client privilege is primarily for the benefit of the client.
A defendant is a party being sued by a plaintiff in a civil case. In a lawsuit, a plaintiff claims to have been injured by the wrongful conduct of a defendant. In some cases and courts, a defendant may be called a respondent.
Attorneys
An attorney is a person who practices law and acts as an advocate for a party. In the United States, the term attorney, counselor, and lawyer are synonyms. Also, sometimes an attorney may be referred to as an “esquire,” designated as “Esq.” after the attorney’s name. An attorney must be admitted to practice law in a particular state or federal jurisdiction to represent parties in that state. If admitted to practice law in a state, an attorney is said to be a member of the state’s bar. In most states, an attorney may become a member of the bar by graduating from a law school accredited by the American Bar Association (ABA) and passing the state’s bar exam. In some states, there are other ways to become a member of the bar (e.g., practicing law for a certain period of time in another state and then “waiving” into the bar).
Attorneys have a fiduciary relationship with their clients. This means that an attorney has a duty to act for the benefit of a client. In fact, the ABA Model Rules of Professional Conduct (on which most state rules for attorneys are based) provide that an attorney (as an advocate) must zealously assert the client’s position under the rules of the court system. Another aspect of the fiduciary relationship is the attorney-client privilege. Under the attorney-client privilege, an attorney must not divulge the substance of confidential communications between the attorney and client, unless authorized by the client. The attorney-client privilege is primarily for the benefit of the client.
Judges
A judge is a public official who presides over a case and resolves disputes by issuing judgments. Trial court judges hear and decide legal issues (and factual issues in bench trials). Legal issues are questions that must be answered by applying and interpreting the law, whether it derives from the Constitution, a statute, the common law, or a rule or regulation.
In his Senate confirmation hearings in 2005, US Supreme Court Chief Justice Roberts likened judges to umpires at a baseball game:
A judge is a public official who presides over a case and resolves disputes by issuing judgments. Trial court judges hear and decide legal issues (and factual issues in bench trials). Legal issues are questions that must be answered by applying and interpreting the law, whether it derives from the Constitution, a statute, the common law, or a rule or regulation.
In his Senate confirmation hearings in 2005, US Supreme Court Chief Justice Roberts likened judges to umpires at a baseball game:
Judges
are like umpires. Umpires don’t make the rules; they apply them. The role of an
umpire and a judge is critical. They make sure everybody plays by the rules.
But it is a limited role. Nobody ever went to a ball game to see the
umpire. Chief Justice Roberts’s judges as umpires analogy is a helpful way
to remember the role of judges. Not all judges agree with the analogy, however,
including recently-appointed US Supreme Court Justice Kagan. In her Senate
confirmation hearings in 2010, Justice Kagan stated:
The
metaphor might suggest to some people that law is a kind of robotic enterprise,
that there’s a kind of automatic quality to it, that it’s easy, that we just
sort of stand there and, you know, we go ball and strike, and everything is
clear-cut, and that there is no judgment in the process. And I do think that
that’s not right . .We should be asking ourselves what the proper role of
judges is—and whether the positions of Chief Justice Roberts and Justice Kagan
are mutually exclusive. After all, in baseball, batters get three strikes and
four balls (an umpire giving more strikes or balls would be “making the
rules”), but the strike zone may vary depending on which umpire is behind home
plate. Some umpires have a tight strike zone, while others have a wide one.
Also, sometimes the strike zone may vary depending on the game situation, which
is why savvy hitters know to guard the plate with two strikes—and to swing if
the ball is anywhere close!
In some courts, judges may be called justices (e.g., the US Supreme Court) or chancellors (e.g., the Delaware Court of Chancery). And public officials in inferior courts are sometimes referred to as magistrates or justices of the peace.
In some courts, judges may be called justices (e.g., the US Supreme Court) or chancellors (e.g., the Delaware Court of Chancery). And public officials in inferior courts are sometimes referred to as magistrates or justices of the peace.
Juries
A jury is a group of persons selected to decide factual issues. Persons who serve on juries are called jurors. In most cases, either party may demand a jury trial. There are cases and courts, however, where jury trials are not available for civil cases. In a jury trial, the jury decides the factual issues and the judge decides the legal issues. That is why a jury is referred to as the “fact-finder.” This means that juries hear testimony and review documents and other physical evidence to determine what, when, and how events took place.
A jury is a group of persons selected to decide factual issues. Persons who serve on juries are called jurors. In most cases, either party may demand a jury trial. There are cases and courts, however, where jury trials are not available for civil cases. In a jury trial, the jury decides the factual issues and the judge decides the legal issues. That is why a jury is referred to as the “fact-finder.” This means that juries hear testimony and review documents and other physical evidence to determine what, when, and how events took place.
Deborah R. Hensler, Nicholas M. Pace, Bonita
Dombey-Moore, Beth Giddens, Jennifer Gross, Erik K. Moller, Class Action
Dilemmas: Pursuing Public Goals for Private Gain (Santa Monica: RAND,
2000), 10–11.
Giles M. (2005). Opting Out of Liability.Michigan
Law Review.Foreman C. Supreme Court: AT&T can force arbitration, block
class-action suits. ArsTechnica.
Stephen
C. Yeazell, From Medieval Group Litigation to the Modern Class Action (Yale
Univ. Press 1987).
Yeazell,
Stephen C. (1987). From Medieval Group Litigation to the Modern Class Action.
New Haven: Yale University Press.
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