This page covers the civil litigation process. Topics covered are:
Commencement of civil litigation
Discovery procedures
Trial of civil lawsuits
Appeals in civil cases
Conclusion
Commencement of civil litigation
Civil litigation is begun by filing with the clerk of the appropriate court a legal document called a “petition” in state court (a “complaint” in federal court) and paying the filing fee required by the court for the particular type of case. The filing fee is an advance deposit toward court costs. Court costs are usually assessed against the losing party in a lawsuit, so if the plaintiff wins, the filing fee can be recovered.
Once a lawsuit has been filed, a copy of the lawsuit must be “served” on the defendant along with a legal document issued by the court clerk called a “summons.” This requirement is based on fundamental concepts of fair play and due process – that is, it would be unfair for the court to allow the plaintiff to proceed against the defendant without the defendant having notice that the lawsuit has been filed and an opportunity to defend. Service of the summons and petition on the defendant is usually accomplished by personal delivery by the sheriff or a private process server. In some situations, the documents can be sent to the defendant by mail. More rarely, usually when the whereabouts of the defendant are unknown, it is legal to accomplish service by publishing a notice in a newspaper.
After the summons and petition have been served on the defendant, the defendant has a period of time within which to respond to the petition. The summons advises the defendant of the time allowed, which can vary with the type of case and the court in which it was filed. Depending on the type of case and the court, the defendant must either file a written response with the court, appear in court personally, or have an attorney appear personally.
If a defendant fails to respond to a petition after proper service, the court can enter what is known as a “default judgment” against the defendant, granting the relief requested by the plaintiff. In this situation, the defendant is deemed to have waived the opportunity to present evidence, but the court may require the plaintiff to present some evidence in support of the petition.
Sometimes a defendant will admit the allegations of the petition to the court, in which case the court can enter what is called a “consent judgment” against the defendant.
If the defendant disputes some or all of the allegations of the petition and/or asserts affirmative legal defenses to the petition, the case is considered to be “contested” and will ultimately have to be tried (unless the parties can voluntarily settle the dispute or the lawsuit is dismissed for some reason).
If the defendant has a claim against the plaintiff, the defendant can file a “counterclaim” against the plaintiff in the same lawsuit so all issues between the plaintiff and defendant can be decided at the same time. When a counterclaim arises out of the same basic set of facts as the plaintiff’s claim, the counterclaim may be deemed mandatory – that is, the counterclaim will be waived unless filed in response to the plaintiff’s lawsuit and cannot be filed as a separate lawsuit in the future.
Discovery procedures
Except in Small Claims Court, the parties to a lawsuit have the right to use various “discovery” procedures to obtain information from the other side and third-party witnesses in order to prepare for trial. The discovery process can also promote settlements as the parties learn more about the strengths and weaknesses on both sides of the case. The main discovery devices available are:
Interrogatories: These are written questions submitted to the other side in a lawsuit, which the other side is required to answer in writing and under oath.
Requests for Production: One party in a lawsuit can submit a request to another party to produce particular documents and/or things that may be relevant to the lawsuit.
Depositions: Depositions can be taken from both parties and witnesses who are not parties to the lawsuit. Legal devices are available to compel reluctant witnesses to give a deposition and to bring particular documents and things with them to the deposition. A witness giving a deposition is called a “deponent.” At the deposition, the attorneys for all parties have an opportunity to ask the deponent oral questions which the deponent must answer orally. Before starting, the witness is placed under oath to tell the truth, just as in court. A deposition reporter, using a machine shorthand device or a tape recorder, takes down all of the questions and answers verbatim and later prepares a typed transcript which is provided to the parties who request it. Under certain circumstances, depositions can be introduced in evidence at a later trial. Sometimes depositions are also video-taped so they can be played back at trial.
Physical and Mental Examinations: If relevant to the case, one party can request that another party be required to submit to a physical or mental examination by a professional of the requesting party’s choice.
Inspection of Real Property: If relevant to the case, a party can obtain an order from the court for permission to go onto and inspect real property owned by another party.
Except for depositions, parties usually are required to respond to discovery requests within 30 days. Special rules apply to depositions. Unless the court finds a discovery request was improper, the court can order a non-responsive party to respond and impose sanctions for failure to do so.
Trial of civil lawsuits
Roughly 90% of all civil lawsuits are settled prior to trial, but if the investigation and discovery in a lawsuit do not result in the parties agreeing to a voluntary settlement, the case will have to go to trial unless it is voluntarily dismissed by the parties or involuntarily dismissed by the court on legal grounds.
In many civil lawsuits, there is an absolute right to a trial by jury unless waived by the parties. If a jury is waived, the evidence is heard and the case is decided by the judge alone. In other cases – dissolutions are one example – there is no right to a jury trial, and these cases are automatically tried to a judge.
In a trial, both sides are entitled to present evidence, which generally consists of the sworn testimony of various witnesses (either live or presented through depositions) and the presentation of various exhibits (which can include documents, photographs and tangible objects).
At the trial court level, smaller cases, particularly those in Small Claims Court and the Associate Division of the Circuit Court, are typically decided within one to three months. More complicated cases, usually in the Circuit Court, usually take from six to 18 months to resolve.
Appeals in civil cases
After a ruling at the trial court level, in almost all cases there is a right of appeal to a higher court. As implied in the Missouri court system overview at the top of this page, most cases tried in Circuit Court and Associate Division are directly appealable to a Court of Appeals. A much smaller number of highly specialized cases are directly appealable to the Missouri Supreme Court. The Supreme Court and the Courts of Appeals generally decide appeals within six to 12 months.
Other cases, primarily Small Claims cases, are initially appealed by requesting a new trial in the Circuit Court. After the new trial, an appeal can be filed with an appellate court.
There are strict deadlines and many rules governing appeals, so the assistance of an attorney is highly advisable in most cases.
Conclusion
The civil litigation process is a complex one, involving many legal and procedural rules and time deadlines. Thus, although the law permits individuals to represent themselves in court, it is very difficult for most non-lawyers to pursue or defend a civil case successfully without the assistance of an attorney (except in Small Claims Court).