Law Offices of David Clough P.C.

"Lawsuit: A machine which you go into as a pig and come out of as a sausage."
                                                        -Ambrose Bierce
Available for matters in Cook, Dupage, and Will Counties
Established in 2001
June 2014

How Civil Law Proceedings Really Work


No matter if your civil matter pertains to breach of contract, personal injury, divorce or some other action, the steps of a lawsuit are generally the same. The first thing I usually tell clients is, "Forget legal scenes you may have seen on TV shows." I have yet to see a legal proceeding start and come to any conclusion in a half-hour! In reality it takes much more time to resolve a case than just appearing at the Courthouse and testifying before the Judge. Read on for details. 

How cases get started 

The first step in a lawsuit is that one party -- the plaintiff -- files a complaint with the court against the opposing party -- the defendant. A complaint is a list of grievances or claims against the defendant showing how the plaintiff was harmed by the defendant's behavior. These claims have to be "legally cognizable". This means each claim is capable of being investigated and/or tried by the court. 


Forget legal scenes you may have seen on TV shows. We've never seen a legal proceeding start and come to any conclusion in 30 minutes!

Next, the Sheriff 

drives to the defendant's house and formally gives him the written complaint. In Illinois, we must initially use the local County Sheriff as a neutral third party to make sure that the defendant is given notice of the grievances against him. This procedure is called "service of process" or simply "service."

After "Service"

Usually, no matter how well-crafted the plaintiff's complaint is, the defendant will file a motion with the court to dismiss it. The defendant will list the reasons why he thinks the complaint is defective. There are many reasons a defendant will file this motion. I'm cynical, so I'll tell you my favorite reason: most defense attorneys are paid by the hour, and thus can charge more for time spent on their client's case! However, other reasons are valid, such as there truly is an error in the way the plaintiff laid out his allegations of wrongdoing against the defendant. This is why these motions to dismiss are often derisively called "motions to educate"; they show the errors and possible ways to improve the complaint in their dismissal motions.


Once the court believes that the plaintiff has a valid complaint, the defendant must answer each allegation brought up by the plaintiff. The answers are simply "Yes/Admit - I agree with this allegation," "No /Deny - I do not agree with this allegation," or "I do not know about this allegation."


The Discovery Stage

After the complaint has been answered by the defendant, the next step is usually called the "discovery stage." This is when the attorneys "show their cards" to each other. They ask each other to produce documents, photographs, business records, etc. that support their position. Lawyers then spend many hours combing over the opposing side's discovery looking for inconsistencies, errors, omissions and the like. Anything to poke a hole in the other side's case.


At the conclusion of the discovery stage, the parties will usually file a motion for Summary Judgment. This simple means they are asking the Judge to rule in one side's favor because all the discovery shows the other side clearly does not have a case, and it would be a waste of time and effort to go to trial when all the evidence points to one parties' superiority in the lawsuit.


The Judge will then make a ruling on the Summary Judgment.  More often than not, the Judge will not grant such a motion if there is even the remotest of possibilities that reasonable people can see a controversy between the plaintiff and defendant.



The Trial

The next step in the litigation process is the trial. This is when you have the opportunity to show the Judge and/or the jury the evidence collected during the discovery phase, and you try to persuade them that your side is correct. Trials vary depending on the complexity of the dispute. I have been in trials lasting from 30 minutes to several weeks. At the end of the trial the Judge or jury will announce a guilty or not guilty verdict against the defendant.


After the Trial

Even when the plaintiff is successful in winning his or her case, the legal matter it still not over! In order to collect any money from the defendant, the plaintiff has to determine where the defendant keeps anything of value that can be used to pay off the amount awarded during the trial. A secondary court proceeding, commonly called a Supplemental Proceeding, is then held to determine which bank the defendant uses, where he holds stock, what lands he owns, etc. You may be surprised to learn this, but in reality, the plaintiff is back to square one trying to enforce the judgment just won at trial. I have seen cases where the plaintiff won but the defendant had no money to compensate him. This meant the plaintiff had to walk away with a judgment but no money to compensate for his time and troubles.


In addition, each party is entitled to appeal the judgment, another way of making the parties go back to square one of the lawsuit. Appeals are handled by the next higher court and, theoretically, can be appealed all the way up to the Supreme Court. This process can take many years to accomplish.


I hope this month's newsletter was helpful (or at least interesting reading!). As always, please let me know if you have questions about the law.


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Law Offices of David Clough P.C. | 312-849-3000 | [email protected] |
55 West Monroe, Suite 3950, Chicago, IL 60603

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