A Brief Overview of Federal Civil litigation

Unlike in State Courts in New York where  only certain types of cases require electronic filing of documents, the Federal Courts ( both Bankruptcy Courts  and the U. S. District Courts ) require it in all cases. ( See previous article ” Consumer Bankruptcy ” ) This article will only be about the U.S. District Courts.

Generally a case is Commenced by filing electronically via the court’s electronic case filing system ( ECF) and serving  a Complaint on the Defendant(s). Then the defendant(s) will either file and serve An Answer or a Motion to Dismiss the Complaint pursuant to Federal Rule of Civil Procedure ( FRCP) 12. If the court grants a Motion to Dismiss, the case is over unless the Plaintiff files A Notice of Appeal and perfects the appeal by filing  and serving an appendix or record on appeal containing the documents in the case relevant to the appeal  and a Brief  containing the legal arguments for the appeal. The topic of Appeals is beyond the scope of this article. If the defendant filed an answer, the Plaintiff may file a reply to it  addressing any new matter such as Counterclaims.

Once a complaint is answered this means Issue has been Joined, which means that all Plaintiffs and all Defendants have Appeared and are now in the case.

The next step is usually a Court Conference before a Magistrate Judge ( a Magistrate Judge is not the Judge on the case that will decide  any motions  and preside at trial, but rather assists the Judge with more routine mundane matters similar to a Judicial Hearing Officer, Court Attorney, or Referee in the State Court system ) to set a Discovery Schedule. Discovery is the process of discovering the evidence, witnesses, and strengths and weaknesses of each sides’ case and generally includes processes such as Automatic Disclosure of certain documents  and information required by the FRCP, Interrogatories which are written questions each side asks the other about the case, Depositions which is an examination of parties and witnesses under oath and on the record ( a verbatim Transcript is made of the Deposition  usually by a court reporter who is present at the Deposition and taking down stenographically what is being said in Question and answer form similar to testimony at a trial).

When  the process of Discovery is concluded ( usually after 3- 9 months depending on how complicated the issues in the case are and how much documentary, photographic and other evidence there is  and on how many witnesses need to have Depositions taken ) the Defendant usually makes a decision  either to 1) offer a settlement ( usually a small amount that many attorneys call Nuisance Value– in the hope that the Plaintiff is in desperate need of money and will take the settlement and thus the defendant avoids trial  and a potential large verdict against it) or 2) to make another attempt to dismiss the case by making a Motion for Summary Judgment pursuant to FRCP 56. While there are different standards of proof  and other procedural differences between a Motion to Dismiss under FRCP 12  and a Motion for Summary Judgment under FRCP 56, the main difference is the timing of the two motions. A Motion to Dismiss is generally made shortly after a complaint is filed and a Motion for Summary Judgment is usually made after the Discovery process is completed. Thus the Defendant has 2 chances to dismiss the case by using these 2 motions.

If the Plaintiff’s case survives past the Motion to Dismiss and Motion for Summary Judgment stages, then both the Plaintiff and the Defendant(s) know that they either have to settle the case or proceed to trial.

If the case was not dismissed then  generally the next step in the process of litigating the case is that the parties must submit to the Magistrate Judge a Joint Pre Trial Order which generally outlines if there are any agreed upon facts, what the issues are, and other information to  assist the magistrate in understanding the case. This order is generally filed electronically  a few days before a scheduled Pre Trial Conference before the Magistrate.  At this conference the Magistrate will go over the pre trial order with the attorneys for the parties and may or may not make changes ( usually re-framing the issues or determining the scope of the trial) and strongly suggest that the parties try again to settle it- sometimes the magistrate is greatly involved in trying to assist the parties settle the case ). If the case is not settled then the case will proceed to trial.

The next step would then be selecting the Jury. Unlike in NY State Courts where the attorneys for the parties  engage in Voir Dire by asking a panel of prospective jurors questions to find out if a particular potential juror is someone the attorney wants on the jury, in the Federal System the Potential Jurors  are provided with an extensive Questionnaire provided by the court , which is then given to the Judge  and the attorneys. Then the Judge (this time the Judge that is presiding at trial- not the Magistrate Judge) may or may not ask a few questions that are not on the questionnaire and then the attorneys will be given a very limited opportunity to ask questions not on the questionnaire and not already asked by the Judge. Thus unlike in NY State Courts, the attorneys role in Jury selection in Federal Courts is severely limited.

After the Jury is selected and sworn in the Trial will begin with Opening Statements by the attorneys  and the usual trial process of presenting evidence  and testimony of witnesses, then  Closing Arguments ( Summation ) by each attorney, Jury Instructions and the Jury then Deliberating  and Rendering a Verdict.

The details of the Trial Process are beyond the scope of this article.

Watch for future articles on Criminal and Civil Law.


About edwardddowlingivattorneyatlaw

Established my General Practice Law Firm in 1991 Criminal and Civil Litigation Trials and Appeals Federal and State courts Nassau and Suffolk Counties All 5 boroughs of NYC
This entry was posted in Federal civil Litigation, Uncategorized. Bookmark the permalink.

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