Civil Litigation and Procedure

Civil Litigation Process and Documentation

An extensive process takes place following an accident, breach of contract, or some other dispute between parties. When it comes to civil procedure, the Federal Rules of Civil Procedure (FRCP) govern the rules on what steps must be taken during the various stages of civil litigation. Depending on the state, the rules may be different. 

The first thing that occurs is the initial client interview that is conducted by the attorney, so as to decide whether the attorney should take the case in the first place and make fee arrangements. Afterwards, an informal investigation takes place where as much information regarding the case is collected, such as medical records, employment data, and eyewitness accounts. After the Plaintiff's attorney files the complaint, the defendant is notified of the lawsuit, and the defendant's attorney responds to the complain or requests a motion to dismiss or a motion for judgment on the pleadings. If the motions by the defendant are dismissed, then an official discovery process is pursued. Usually a motion for summary judgment is requested, which is a request to determine a case, based on the available information, before the official trial. Afterwards, further discovery is pursued, as well a pretrial conference and a jury selection. Finally, the official trial takes place, followed by the post trial motions, appeal, and steps to enforce and collect judgment.

The primary document that the plaintiff uses to claim a case against a defendant, is called the complaint. A lawsuit is officially initiated by filing a complaint with the proper court. There are several aspects of the complaint that must be included such as, "a caption, jurisdictional allegations, general allegations (body of the complaint) detailing the cause of action, a prayer for relief, a signature, and, if appropriate, a demand for a jury trial." When a complaint is ready to be filed there are usually a couple ways to do so. One way would be to file it as a physical copy by allowing a personal delivery person to leave it with the court clerk. Another common way to file a complaint would be through an e-file. However, only certain states allow this, and each state typically has their set of rules for e-filing.

Key Concepts

An important step in the civil litigation process is the discovery process. Obviously, the attorney is going to need vital information to help his client win the case, so that is what discovery is for. During discovery a variety of different mediums of information is obtained. One of these mediums are the interrogatories, which are questions that must be answered by the parties involved that are written and under oath. Depositions are similar to interrogatories, but the questions asked can extend to witnesses, as well as parties involved. Requests for production and physical examination can be initiated if an attorney wishes to study a specific document, supplied by the opposing party, or if a physical or mental examination of a member of the party is needed. Lastly, there are also requests for admission, which are simply a request to the opposing party to admit their guilt, so that a full-on trial can be avoided.

A pre-trial motion is exactly what it sounds like, which is a motion or request for summary judgment. This means that any party can ask the court to make a final decision before the trial using the information and evidence gathered by the discovery process.

Client Interview and Investigation

A major responsibility that a paralegal typically undertakes involves interviewing clients. Before an interview takes place, a few key points should be referenced to make sure the interview goes well. Knowing what information is needed beforehand, standardizing questions and preparing a questioning outline, and deciding whether or not an interview should be recorded are all things that should be taken into consideration. Interpersonal, questioning, and listening skills should all be sufficient enough to allow the client to feel at ease and to allow the interviewing process to run smoothly. Since the initial interview is conducted by the attorney themselves, paralegals need to communicate with the client by telling them which documents to prepare, as well as setting up a schedule time and place. Sometimes an informational interview is conducted to bring the client up to date with legal matters and next steps. After a paralegal has completed an interview, it is time to summarize the interview, which involves preparing a summary in the form of a written memorandum the information that was gathered, as well as the impressions of the client's statements and nonverbal mannerisms.

Just because a client makes a claim in an interview this doesn't automatically make the claim factual. Sometimes paralegals need to conduct investigations to make sure all facts, are indeed, facts. Of course, before conducting any procedure, preparations should be made in the form of an outline, so that it known what sources to use to obtain information. Keeping in contact with the supervising attorney is important to make sure the investigation plan has been given clearance. If witnesses are needed for interviewing, they can typically be found through court records, media outlets, or governmental agencies. Access to governmental information is largely free to acquire, however, some records may need to be disclosed upon request, and some information is purely confidential. Once proper evidence has been acquired, then a paralegal should summarize the results by including an overall summary, a source-by-source summary, and a conclusion with any recommendations.