3.1 Introduction


  1. Identify the parties involved in litigation.
  2. Explore the responsibilities of attorneys.
  3. Understand the roles and types of juries.
  4. Explore the standing requirement.
  5. Follow a trial from opening statements to closing arguments.

Litigation provides an opportunity for each side in a dispute to tell their story to an impartial jury or judge to decide who wins. Business professionals have a responsibility to their company and stakeholders to avoid legal liability. Acting ethically helps achieve this goal. Agreeing to mediation or arbitration may help businesses avoid court. However, litigation may be the only dispute-resolution mechanism available or the one that is best for the situation.

Counselor’s Corner  Litigation is like any other business effort: you are trying to get someone to see things your way.  The best way to do that is to be likable and persuasive to the judge, other lawyers, and the jury.  Construct your theory of the case early on. Meet your deadlines. Maintain a strict ethical standard in your professional life.  Work hard to explore both sides of the case, and develop a short and compelling statement about why your side should prevail. If you do all that, you will make it easy for others to want to find in your favor. Why does this work?  Because as humans, we want good to prevail.  Be good.    ~Valerie M., magistrate

3.2 The Parties, Attorneys, and Jury

The Parties

The litigation system relies on parties to bring forth and defend their respective claims. The party that begins a civil lawsuit is called the plaintiff. The plaintiff sues the defendant to recover damages for, or to stop, a legal wrong. In a criminal trial, the party that initiates litigation is the prosecution, representing the people within a state or federal government. In a criminal trial the accused wrongdoer is also called the defendant.

Cases may involve multiple plaintiffs and multiple defendants. Civil procedure encourages parties to bring their complaints against each other at once. All parties, and every possible claim (each claim is a separate violation of law) arising out of a single incident or series of related incidents, should be identified and raised in a lawsuit.

Except in some small-claims courts, parties may hire attorneys to represent them. Individuals who represent themselves are called pro se litigants. The complexities of litigation require knowledge and objectivity to succeed. Courts hold pro se litigants to the same standards as they do attorneys. Therefore, a pro se litigant is expected to understand and follow all the rules of the court and applicable laws.


In the United States, law school is a graduate-level program that usually takes three years to complete. Law school graduates earn a Juris Doctorate degree, or JD. Graduates then take the bar exam in the state where they wish to practice. If they pass the exam and background check, they can apply to be licensed in that state. Because the practice of law in the United States varies widely by jurisdiction, attorneys are only permitted to practice in jurisdictions where they are licensed.

Attorneys are bound by a professional code of ethics that is overseen by the supreme court of the state where they are licensed. One of the most important rules of professional responsibility is the obligation to keep a client’s secrets. The communications between a client and his or her attorney are absolutely confidential under the attorney-client privilege doctrine. The privilege belongs to the client, and the attorney is not permitted to reveal any of these communications without the client’s consent. A narrow exception exists for clients who tell their attorneys they intend to harm others or themselves. Attorneys must avoid violating the privilege because it exists for the client’s benefit. Someone who cannot communicate with his or her attorney freely is unable to help the attorney prepare the best possible case.

In spite of an attorney’s professional obligations to his or her client, it’s important to remember that ultimately an attorney’s first duty is to the administration of justice. The requirements for attorneys to be civil, honest, and fair are written to ensure that attorneys represent the very best aspects of the judicial system. For example, a client admits to his attorney that he is guilty of a crime. The client then wants to testify under oath that he is innocent. Although an attorney cannot reveal what her client has told her, the attorney is prohibited from knowingly suborning perjury. The attorney must either convince the client to not testify or withdraw from the case.

An attorney owes her client zealous advocacy, but her zeal must be constrained within the bounds placed on her as an officer of the Court and under the Court’s rules. Attorneys cannot assert legal claims or arguments that are not well-founded under existing law or through the modification or expansion of law. Attorneys are also prohibited from using the courts for a purpose unrelated to the resolution of a legitimate legal cause of action.

The Jury

In the US legal system, the jury has a very special role of citizen participation in the administration of justice. As the trier of fact, the jury has the duty of determining the truth in any given situation: who said and did what, why, and when. The litigation system is a process in which each side gets to present its case to a group of unbiased citizens, and then ask them to decide who wins the case.

There are two types of juries. A grand jury is a group of citizens convened by the prosecution in serious criminal cases to determine (1) whether probable cause exists to believe that a crime has occurred, and (2) whether it’s more likely than not that the defendant committed the crime. If the grand jury decides probable cause exists, then the government may bring criminal charges against the defendant. The grand jury prevents prosecutors from abusing their powers of arrest and indictment. The grand jury requirement exists at the federal level and in most states. A grand jury typically meets for an extended period of time and hears several different cases.

The grand jury does not determine guilt or innocence. A petit jury does that. This jury is impaneled for a specific trial. During the trial, members of the jury listen to the evidence presented and then deliberate as a group on the facts of the case. They then apply the law, as instructed by the judge, to the facts. There are typically twelve members in a petit jury in criminal trials and from six to twelve members in civil trials. In a criminal trial, a jury must arrive at a unanimous verdict to convict a defendant of the crimes charged.

The jury system is incredibly important because ordinary citizens adjudicate all sorts of disputes. There are problems with administering this system, however.

Both grand and petit juries are drawn from citizen voter and driver license rolls. In high-profile cases, it may be difficult to find citizens who have not heard about the case or who can be impartial. Another problem arises from the burdens placed on jurors’ personal lives through their service. While most states have laws that prevent an employer from firing a worker or taking any negative action against workers on jury duty, there is no legal requirement that an employer continue to pay a worker on jury duty. Some citizens, such as those who are self-employed, risk losing personal income by serving on juries.

Another potential problem arises in the composition of the jury. To provide a fair jury, courts attempt to draw from a cross-section of society to reflect the diversity of the surrounding community. Local court rules typically allow judges to excuse potential jurors for hardship or extreme inconvenience. The only professions that are automatically exempt are active-duty military members, police officers, firefighters, and public officers. In spite of these administrative problems, the jury system remains a cornerstone of the US legal system.

3.3 Standing

Standing is a constitutional requirement. Article III of the US Constitution grants the judiciary the power to hear “cases” and “controversies.” This means actual cases and controversies, not merely hypothetical ones. The standing requirement means that courts are unable to give advisory opinions. Standing is a doctrine that limits judicial overreach by limiting the types of cases that are litigated in court.

To demonstrate standing, a party has to prove that it has an actual case to proceed. This is a procedural matter, and it requires the case to be brought at the right time. If a case is brought too early, it is not yet ripe. If it’s brought too late, then the case is moot.

The case also has to be brought by the right person. To show standing, a plaintiff has to demonstrate that he or she has an actual stake in the litigation, or something of value that would be lost if he or she loses the case. It’s important to note that standing is not related to the merits of the case. It only means that a party may proceed with litigation.

3.4 Subject Matter and Personal Jurisdiction

In order to hear a case, courts must have subject matter jurisdiction over the type of dispute and personal jurisdiction over the parties. As discussed in Chapter 2, subject matter jurisdiction is the legal authority to hear and decide a case or controversy. The court must dismiss a case if it lacks either form of jurisdiction.

Personal jurisdiction is the power of the court to compel the parties to appear in court. Personal jurisdiction requires litigants to have some form of minimum contacts with the state where the case is filed. Personal jurisdiction seeks to avoid inconvenient litigation, even if the case has merit.

A court obtains personal jurisdiction over the plaintiff when the plaintiff files a lawsuit. The court obtains personal jurisdiction over a defendant when he or she is served with process or waives service.

Obtaining personal jurisdiction over the defendant requires some connection between the defendant and the state where the court is located. Businesses that incorporate, have a physical location, or do business in a state create personal jurisdiction through their actions within the state. Owning property in a state also creates personal jurisdiction.

Personal jurisdiction, like standing, is a constitutional requirement. Most states have long-arm statutes that set forth the procedure by which out-of-state defendants can be required to appear before a court. The statutes provide for how service of process occurs. Service of process is the process by which a defendant is notified that it is being sued. Service of process typically requires a copy of the notice to appear before a court to be personally delivered to the defendant or the defendant’s agent. In the case of businesses, service of process is usually delivering a copy of the notice to appear to their registered agent. Service can be more challenging with individuals.

Basis of Personal Jurisdiction Description
  • A business or individual agrees to the jurisdiction of the court
  • A business or individual resides in the state
Service of Process
  • The defendant is served a summons and complaint within the state
Long-arm Statute
  • A resident business or individual was involved in an incident in another state; or
  • A non-resident business or individual was involved in an incident within the state

3.5 Venue

Venue is the proper geographic location of the court to hear a case because the place has some connection with the events that give rise to the lawsuit. While multiple courts may have subject matter and personal jurisdiction over a dispute, only a few may be the proper venue. For example, by doing business in Colorado a company is subject to the jurisdiction of Colorado courts. However, the court in the county where the plaintiff was injured or where the business maintains an office would be the proper court to hear the dispute.

3.6 Pretrial Procedures

Figure 3.1 Litigation Flowchart

Litigation timeline from the legal complaint through trial


In civil cases, litigation begins with the filing of a complaint by the plaintiff. The complaint is a legal document setting forth who the parties are, the facts of the case, and what laws the plaintiff claims defendant has violated. The complaint ends with a prayer for relief. The plaintiff may be seeking damages (money), specific performance in certain types of contract cases, or an injunction.

The complaint is filed with the clerk of the court where the lawsuit is to be heard. The clerk will issue a summons, which is an official notice that a lawsuit has been filed with the court and summons the defendant(s) to court to defend against it. To be effective, the defendant(s) must be served the summons and a copy of the complaint.

In certain types of cases, there may be a large number of plaintiffs injured by a defendant’s actions. This may happen in a product liability lawsuit where a product is purchased by many thousands of consumers, all of whom experience the same product failure. In these cases, several lead plaintiffs may attempt to form a class in a class action lawsuit against the defendant(s). Under federal civil procedure rules, class actions may be granted when:

  1. There are so many plaintiffs that
  2. It is impractical for them to file separate lawsuits;
  3. There are questions of law or fact that are common to members of the class; and
  4. The lead plaintiffs will fairly and adequately protect the interests of the class.

The defendant must file an answer to the complaint within a specified period of time, usually thirty days. The answer is a paragraph-by-paragraph response to the complaint, admitting certain allegations and denying others. The answer may admit, for example, noncontroversial claims by the plaintiff such as the defendant’s name, address, and the nature of the defendant’s relationship with the plaintiff. Each time the defendant denies a plaintiff’s claim in the complaint, that sets up a controversy or argument that must be litigated. The answer may also contain any affirmative defenses and counterclaims the defendant wishes to pursue. Taken together, the complaint and answer are known as the pleadings.


After pleadings are filed, litigation moves into the discovery phase. Discovery is a process in which each side finds out information about the other’s case. Discovery is designed to prevent trial by surprise, where either side may suddenly produce a damning piece of evidence. Because trials are based on the discovery of truth, they should be tried on the merits of the case rather than a party’s deceit. In that spirit, the rules of discovery are broad. Relevant evidence is discoverable even if it is later ruled to be inadmissible at trial by the judge. Parties are also obligated to turn over material that supports their case, without demand from the other side unless it is protected by the attorney-client privilege.

Type of Discovery Description
Request for Admission
  • Ask opposing party to admit specific facts or claims
  • Ex: confirm legal name and address, existence of contract, etc.
  • Written questions to opposing party about nature of claim
  • Ex: identity of witnesses, extent of injuries, description of injury, etc.
Request for Production
  • Ask opposing party to produce documents and evidence relevant to lawsuit
  • Ex: copies of contracts, records, reports, emails, etc.
  • Sworn testimony of potential witnesses at trial
  • Court reporter is present and makes official transcript of questions and answers but judge is not present

There are four types of discovery. The simplest is a request for admission. Remember that a complaint contains a series of claims the plaintiff is making against the defendant. The parties may ask each other to admit that certain facts are true or that a contested claim is true. Doing so narrows the issues for trial because it is one less thing that the jury has to decide. Even if the parties dispute legal liability, if they agree upon the facts that caused the dispute, the case may take less time and money to resolve.

The second type of discovery is an interrogatory. These are written questions addressed to the other party. The questions tend to be simple and straightforward. Interrogatories seek to gather information about what happened, who was involved, a company’s structure, and the names and addresses of witnesses.

A third form of discovery is a request for production. A party can request another party produce relevant documents to the lawsuit, including internal company reports, emails, product manuals, and employee records. In some cases physical evidence may also be produced. For example, if a consumer sued a vehicle manufacturer because a wheel fell off while driving, the manufacturer may ask the consumer to produce the vehicle so that its engineers can inspect it. Failure to preserve and produce key evidence in litigation can lead to charges of spoliation, which may result in severe sanctions against the offending party.

Finally, discovery can take the form of a deposition. A deposition is a sworn oral statement, in response to questions, given by a potential witness in a trial to the attorneys in the case. A deposition is attended by the witness being deposed, attorneys from all the parties, and a court reporter who keeps a written or video transcript of the deposition. There is no judge present, so there is great latitude for parties to ask questions, even if the answers are not admissible in court. Depositions help prepare for trial by knowing everything a witness may say in court. They also serve to pin down a witness’s testimony, because a witness who changes testimony between a deposition and trial can be impeached.


At any point in litigation, either party may file motions with the court. A motion is a request to the court to rule on an issue or claim.

If a defendant is properly served and does not answer the complaint, the plaintiff can file a motion for default judgment. In essence, the plaintiff asks the court to enter judgment in his or her favor because the defendant refused to show up to court to defend against the case. The alleged facts are admitted by default and the plaintiff may receive all the relief requested.

At the beginning of a lawsuit, a party can file a motion to dismiss for failure to state a claim. In this motion, the defendant argues that even if everything in the complaint is factually true, the plaintiff is not entitled to legal relief. In other words, the defendant’s conduct has not broken any laws.

If a long period of time has passed since the incident in question and the filing of the lawsuit, a defendant may file a motion to dismiss based on the statute of limitations. Every civil and criminal action has a statute of limitations, which requires lawsuits to be brought within a specified period of time. Statutes of limitations exists to encourage parties to file their lawsuits quickly, while evidence is still fresh and relevant witnesses remember what occurred. As time passes, evidence may be destroyed, witnesses may die or move away, and those who can be located can’t remember what they saw or heard. In other words, the quicker a lawsuit is filed, the more likely that the truth will be discovered through litigation. For businesses, a statute of limitations also allows it to “close the books” on past liabilities.

Another motion that is filed before discovery and trial is a motion for judgment on the pleadings. This motion asks the court to determine whether a genuine issue of material fact exists that allows the case to proceed. These motions are not as common as motions to dismiss but they are an important tool to dismiss lawsuits that are fatally flawed before the parties spend too much money. For example, if a business is sued by several parties for injuries resulting from a common cause but the complaints allege conflicting facts, the business may file a motion for judgment on the pleadings. In other words, the defendant is asking the court to dismiss the complaints because they contradict each other in a way that it is impossible to reconcile. If dismissed, the plaintiffs may file new complaints that are not flawed.

Similar to a motion for judgment on the pleadings, a motion for summary judgment asks the court to enter judgment in a party’s favor instead of trying the case. Filed after discovery, this motion asks the court to rule that there are no genuine issues of facts for trial. For example, if a plaintiff admits during his deposition that he lied about being involved in an accident, the defendant may bring a motion for summary judgment because the plaintiff brought a fraudulent lawsuit. Although any party may file a motion for summary judgment, defendants file and win many more motions for summary judgment than plaintiffs.

Pretrial Motion Description
Motion for Default Judgment
  • Defendant was served but does not answer the complaint
  • Plaintiff wins because defendant does not defend against the lawsuit
Motion to Dismiss for Failure to State a Claim
  • Determination of whether the law supports the plaintiff’s claim(s)
  • Defendant wins because conduct did not break the law
Motion for Judgment on the Pleadings
  • Determination of whether plaintiff is entitled to judgment or damages, even if the facts alleged are true
  • Defendant wins because complaint is fatally flawed
Motion for Summary Judgment
  • Determination of whether genuine issue of material fact exists to support plaintiff’s claim(s) based on pleadings and evidence during discovery
  • Defendant wins because evidence does not support plaintiff’s claim(s)

A party may submit an affidavit in support of any motion. An affidavit is a written statement made under oath. Affidavits play an important role in pretrial procedure because they are an effective way for parties to tell their side of the story to the judge.

3.7 The Trial and Appeal

After discovery is completed, the case is scheduled for a trial. In civil litigation, well over 90 percent of cases filed are resolved or settled before trial. If a case goes to trial, it means there are genuine issues of fact that the parties cannot resolve, and both sides are determined to win.

The first step in this process is to select a jury. The process of selecting a jury is called voir dire. Voir dire typically begins with the jurors filling out a written questionnaire. The questionnaire asks the jurors to identify their occupation, any work or occupational conflicts, and any potential conflicts of interest with the case. The process then continues with attorneys quizzing each potential juror to determine if he or she has any biases against upholding the law and whether he or she can keep an open mind during the trial.

After a jury has been selected and sworn in, the trial begins. The plaintiff or prosecution begins by giving an opening statement that is a preview of the trial. Attorneys inform the jury during opening statements what they expect to prove at trial. Attorneys do not make any arguments during the opening statement; they simply lay out what jurors can expect from the trial ahead. After plaintiff’s opening statement, the defendant may give an opening statement.

After opening statements, the trial moves into the examination phase. The plaintiff presents evidence first. Evidence may be in the form of documents and witness testimony. The other parties have the right to cross-examine witnesses who testify at trial. During the cross-examination, the attorney will try to discredit the witness to convince the jury that the witness is not credible. The attorney may probe into any potential biases the witness may have or try to prove that the witness’s recollection of events may not be as clear or certain as the witness believes.

Once the plaintiff has called all their witnesses and introduced all their evidence, the plaintiff will rest their case. The defendant then has an opportunity to present witnesses and evidence on their behalf. After the defense has rested its case, the attorneys once again address the jury in closing arguments. Here, the attorneys summarize the case for the jury. They address what witnesses were called and what the witnesses said. During closing arguments, the attorneys are permitted to be much more persuasive and argumentative than during the opening statement. They appeal to the jury’s emotions and argue how the jury should interpret the evidence before them.

After closing arguments are made, the judge instructs the jury on the relevant law. The jury then deliberates. During deliberations, the jury will decide what facts are true. Then it will apply those facts to the law as outlined in the jury instructions.

Central to the jury’s deliberations is the burden of proof applicable to the case. In civil cases the burden of proof is preponderance of the evidence. This standard requires the scales of justice to tilt ever so slightly toward one party. If the jury believes one side is 51 percent correct and the other is 49 percent correct, that is enough to declare a winner. It is an easy standard to meet because it only requires a party to prove that its side is more likely than not telling the truth.

During jury deliberations, the jurors are permitted to ask the judge for clarification about the law and to request to see the evidence again. If the jury is unable to come to a verdict, the jury is said to be deadlocked, and a mistrial results. Since trials are expensive and time consuming, the judge will usually instruct the jury to try its best before giving up. If the jury arrives at a decision, it is called a verdict.

The judge enters the jury’s verdict as a judgment of the court. After that, the losing party has the right to file an appeal. The appellate court only reviews the record for legal errors and cannot call new witnesses or substitute its judgment on the facts for the jury’s.

Once all appeals are exhausted, the winning party may collect the judgment entered in its favor. This process is called execution. If a party is unable or unwilling to pay the judgment, the court can order the party’s assets to be sold to satisfy the judgment.

A party cannot refile a lawsuit once it has been decided in the hopes of a more favorable outcome. The doctrine of res judicata holds that once a dispute is litigated and resolved, the parties are barred from relitigating the issue again. Res judicata is a Latin phrase that means “the thing has been decided” and it is a rule of finality in the legal system.

3.8 Concluding Thoughts

Litigation is a method for parties who cannot resolve their disputes to have a judge or jury determine what happened and whether legal liability exists. Although it may be challenging to keep the names of the parties, motions, and parts of the process straight, businesses need to understand the process to navigate it successfully. Litigation is a long and expensive process, but is often a part of a business’s activities.

The goal of civil litigation is to find the truth. An attorney’s highest duty is to the administration of justice. Attorneys are ethically bound to represent their clients with zealous advocacy. A grand jury acts as a body of citizens to prevent abuse by prosecutors. A petit jury sits in trials as the trier of fact to ascertain the truth through their observations of the presented evidence.


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