You’re in litigation but not quite sure what to file. In fact, you don’t even know what’s available. You’ve heard about the motion to dismiss, but that’s all. Everything else sounds like mumbo jumbo. As a defendant, can you win the case at every stage simply by filing a motion to dismiss? No. Is it proper for a plaintiff to move for summary judgment before the defendant has a chance to answer the complaint? No. In short, file the right documents at the right point. It matters.
In our post, Simple Strategies For Each Stage Of Litigation, I discuss litigation strategies without going into detail about filings. Here, I discuss common filings at each stage of litigation, including the complaint, answer, discovery, trial, and appeal stages.
Common Filings at the Complaint Stage
At this stage, the plaintiff brings legal action against the defendant.
Complaint—Filed by the plaintiff, this pleading gets the ball rolling on litigation. In the complaint, the plaintiff should plead all the elements of a claim so as to avoid dismissal. When the complaint is filed, the defendant has been sued.
Motion for Extension of Time—Upon receiving the complaint, the defendant would be wise to move for an extension of time to respond to the complaint. That way, he has time to launch a strong offense.
Motion for Default Judgment—If the defendant does not respond to the complaint in a timely manner, the plaintiff may move for a default judgment.
Motion to Vacate Default/Motion to Open Default—With a good excuse, or a fee, a defendant may set aside a default judgment by filing a Motion to Vacate Judgment or Motion to Open Default.
Motion to Dismiss—Filed by the defendant, this is the biggest threat to the plaintiff. The defendant uses the Motion to Dismiss to challenge the complaint or summons. It’s a hurdle for which the plaintiff must prepare before the complaint is even filed. If you’re a defendant, this motion is your friend. Become familiar with it and use it to strike back. The motion to dismiss is all about procedure. That is, it should be based on something wrong with the complaint, summons, or service of the complaint and summons. At this stage, the judge doesn’t yet care who hit whom.
Motion for Costs—The Motion for Costs is a request for court costs related to the case. During the complaint stage, it is typically based on a default judgment or a dismissal with prejudice. The Motion for Costs must be timely and specific regarding the amounts owed.
Motion to Strike—If a pleading, such as a complaint or counterclaim, contains any matter that is immaterial, impertinent, scandalous or is in some other way improper, a party may move to strike the pleading.
Common Filings at the Answer Stage
Now, the defendant has to respond to or answer the complaint.
Answer—For the answer, some jurisdictions allow the defendant to respond with a general denial. Others require a formal answer. A general denial doesn’t address specific allegations in the complaint but denies all allegations. A sample general denial might be, “The defendant denies each and every allegation of the complaint.” A formal answer responds to every factual allegation in the complaint.
Demurrer—In some states, you can respond to a complaint with a demurrer. Similar to a motion to dismiss, a demurrer asserts that even if the allegations in the complaint are true, they don’t rise to a cause of action. You don’t have to answer each allegation in the complaint. Be sure to check the rules in your jurisdiction to see if a demurrer is allowed. Some states prohibit them.
Affirmative Defenses—Affirmative defenses are based on facts other than those alleged by the plaintiff which could mitigate the defendant’s behavior if proven. Sample affirmative defenses include fraud and contributory negligence. There are many others. The defendant should number and list each affirmative defense and file them with the answer.
Counterclaim—Just as a plaintiff can file a complaint, the defendant can file a complaint in the form of a counterclaim. A counterclaim alleges that the plaintiff has injured the defendant in some way and should pay damages. The counterclaim must arise out of the same incident as the complaint.
Common Filings at the Discovery Stage
At this stage, the plaintiff and defendant collect evidence to support their case and defeat the case of their opponent.
The Request for Admissions—A request for admissions is a list of statements asking an opponent to admit or deny certain facts. The sender should think hard about the questions to ask and make each request full and clear. The recipient should always respond, even if the response is an objection. Courts deem non-responses as “admitted”. You can lose quickly if you’ve admitted to facts favorable to your opponent.
The Request for Production—A request for production is a list of documents one side wants the other to produce. The sender should request from the other side any document that may hold the evidence s/he needs to prove or disprove a claim, counterclaim or affirmative defenses. The recipient should respond with either a document, a statement that the document is not in the recipient’s possession, or an objection.
The Request for Interrogatories—Interrogatories are written request for answers from one party to the other. The sender should develop a numbered list of questions or requests and send them to the recipient. Some jurisdictions limit the number of interrogatories, so ask your questions strategically. The questions don’t need to be relevant as long as they are reasonably calculated to lead to the discovery of relevant information. The recipient should answer or object separately and in writing to each numbered question.
Deposition—Depositions are recorded interviews of witnesses under oath and before a trial. As with written discovery, a deponent can object to questions. Unlike written discovery, depositions have few limitations on the number of questions asked (although time limits exist). Parties can pause the interview upon an objection and call the judge to sustain or overrule the objection. Alternatively, the judge can decide the matter later on a motion to compel.
Motion to Compel—A party may object to discovery on the basis of relevance, ambiguity, claim of privilege or other grounds. However, in dealing with objections or inadequate responses, the party requesting discovery may move to compel a response. The motion to compel seeks a court order to make a party comply with a discovery request.
Motion for Protective Order—A party may seek a protective order to cease discovery of information when that information is privileged. Privilege allows a witness to refuse to disclose evidence on a particular subject or bar such evidence from being disclosed. Work product privilege, for example, bars discovery of materials prepared by a lawyer in anticipation of litigation. As a pro se litigant, you may be able to claim privilege on the same grounds.
Subpoena—A subpoena is a court order requiring a person to appear as a witness either in court or at a deposition. The person seeking the subpoena must give the recipient adequate notice and time to prepare. The recipient must appear at the appointed time or move for a protective order.
Notices—During discovery, several notices may be necessary. These include notices of taking deposition, serving subpoenas, and filing transcripts.
Common Filings at the Pre-Trial and Trial Stage
A judge or jury must now settle the dispute by weighing the evidence presented by the parties.
Motion for Continuance—A continuance is the postponement of a hearing or trial to a later date. It’s not uncommon for courts to give litigants additional time to prepare by delaying a trial. Courts do this in the event of unforeseen circumstances or for other acceptable reasons.
Motion for Nonsuit—A motion for nonsuit is one in which a defendant, after the plaintiff’s opening statement or presentation of evidence, asks the court to conclude that there won’t be sufficient evidence to support a judgment for the plaintiff. Typically, the plaintiff can correct defects if the court grants the defendant the motion.
Motion for Judgment Notwithstanding the Verdict, Motion for Directed Verdict, Motion for Judgment as a Matter of Law—A judgment notwithstanding the verdict, a directed verdict, and a judgment as a matter of law are three similar procedures. The movant in each must prove to a court that no reasonable jury could have returned a particular result, and therefore the result should be overturned.
- A Motion for a Directed Verdict is made before a case is submitted to the jury and argues that the evidence up to that point is legally insufficient to present to a jury.
- A Judgment Notwithstanding the Verdict (JNOV or judgment non obstante verdicto) is entered by a court after a jury has returned a verdict. The movant asks the court to throw out the jury’s verdict and enter one in favor of the movant because the evidence doesn’t support the verdict.
- A Judgment as a Matter of Law (JMOL) has replaced the directed verdict and JNOV in federal courts. A party makes this motion during a trial when a court determines the evidence is insufficient to support a decision in favor of the non-movant.
Motion for a New Trial—A party may move for a new trial for a number of reasons, including: (1) a judgment rendered in the case conflicts with evidence and testimony presented; (2) a jury award is excessive or inadequate; (3) a clerical error or mistake was made; (4) the opposing party committed fraud, misrepresentation, or other misconduct; (5) the judgment is void; (6) the judgment was satisfied, released, or discharged, or a prior judgment upon which it is based was reversed or vacated; or (7) new evidence was discovered after trial.
Motion in Limine—A motion in limine requests at the start of trial that the court bar certain evidence or testimony from the trial. A party may call for the barring of evidence if it is irrelevant to the case, unreliable, prejudicial, immaterial or contradictory to trial rules.
Motion to Strike—At trial, the motion to strike moves the court to eliminate all or part of a party’s pleading or evidence. If the movant prevails, the court removes the evidence or pleading from the record and, if necessary, instructs the jury to disregard it. To support a motion to strike, the movant may assert that evidence, a pleading or testimony is immaterial, redundant, impertinent, scandalous or false.
Common Filings at the Appeal Stage
The person who lost in the lower court seeks review of the lower court’s order.
Notice of Appeal—The notice of appeal is a formal announcement to an appellate court, the parties, and the trial court that an appellant is seeking review of a lower court’s order. An appeal usually requires a fee. The date of the filing of the notice of appeal determines the due dates for all other appeals documents. These are strict dates. If you need more time for anything ask for an extension of time. Do not simply ignore the due dates.
The Petition for Writ of Certiorari—A petition for writ of certiorari is a document filed by the party on the losing end of a judge’s decision and in the middle of a case. Since the decision of the lower court is not final, the higher court can choose not to review it.
Appellant’s or Initial Brief—An initial brief is a formal document filed on appeal by the appellant, the person who did not prevail in the lower court. The initial brief sets out the appellant’s argument and lays the groundwork for issues to discuss on appeal. The layout of briefs is different from lower court pleadings and motions. So, follow the rules of civil procedure carefully. Also adhere to deadlines. Again, they are concrete.
Appellee’s Brief—The Appellee’s brief is filed by the appellee, the person who prevailed in the lower court. The good appellee’s brief persuades judges that the lower court made the right decision.
Reply Brief—Filed by the appellant, the reply brief is the last in the series of briefs. It gives the appellant the last word. The job of the reply brief is to respond to the appellee’s arguments. It’s not a time to bring up new issues.
I’ve done my job here. Litigation is fluid, and you can file many documents at any stage. However, this list will make you aware of available litigation documents and when they are most commonly filed.