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How Does a Lawsuit Work

January 18, 2016

Step 1: The plaintiff files the summons and complaint (s&c) with the court and after getting notice of the index number gives the s&c to the process server. If the defendant is a corporation or LLC, the plaintiff frequently serves the s&c on the secretary of state. The secretary of state sends the s&c by registered mail to the address on file for the corporation or LLC, with no requirement that the address is good or that the s&c will be received.

 

Step 2: The plaintiff gets the affidavit of service from the process server. The affidavit is filed with the court. Depending on the manner of service, the time for the defendant to answer can be either 20 or 30 days from the date of service of process, or 30 or 40 days from the date that the affidavit of service is filed.

 

Step 3: If the defendant hires an attorney, there is an initial consultation to answer the client's questions and determine the client’s potential defenses. Before the deadline to answer expires, the defendant either answers the complaint, settles or defaults. The only settlement that the plaintiff will accept is one that permits the plaintiff to automatically file a judgment if the defendant fails to make a payment. If the defendant has not timely answered the s&c, the plaintiff submits a default judgment to the court clerk. Once the clerk signs the judgment, the plaintiff can freeze bank accounts and garnish wages and assets. The judgment is a lien on all real property owned by the defendant in the county.

 

Step 4: If the defendant timely answers, the case is now in the pre-trial, or discovery phase where both parties can demand information from each other. The plaintiff tries to engineer the defendant's default or seek admissions that there is no defense. The defendant seeks facts establishing a defense to the action or an inability of the plaintiff to prove its case. During this phase, the court requires at least two appearances, a preliminary conference for the scheduling of discovery, and, several months later, a compliance conference to see if the case is ready for trial. This phase of the law suit can last at least half a year.

 

Step 5: At any time that the plaintiff believes that it can establish that there is no genuine defense to the law suit, the plaintiff will make a summary judgment motion. If the defendant has hired an attorney, there will now be an in depth consultation. The defendant’s attorney files papers opposing the summary judgment motion and the court must decide the motion. Some judges require, before deciding the motion, that the parties appear for argument. If the plaintiff does not make a summary judgment motion, or the court denies the motion, the action proceeds to trial, where both parties must appear and the action will be concluded by either a settlement, trial, or default if the defendant does not appear.

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