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 What happens first in a typical case? Once a Complaint is filed against a Defendant or Defendants, each is required to answer the Complaint, which usually means to file a form response to all of the statements or allegations in the Complaint. It is typical for the Defendant to deny everything at this stage, since it is the Plaintiff’s burden of proof to prove each statement in his/her Complaint. This can be very difficult for a Plaintiff to understand, since taking an extreme example, the Defendant sometimes denies to the Court that he was driving the car - even when the police report states the fact in an accident case, and three witnesses clearly saw the Defendant driving. The reason is not to be malicious, but to exercise all of the legal rights a person has when they are sued in our legal system. The Plaintiff must prove the Defendant was driving the car that caused our hypothetical accident. As an illustration, assume all three witnesses died, and that the Plaintiff told the Court he did not actually see the Defendant driving. At a trial, the Court might dismiss the case, again even though the Plaintiff was injured - because the Plaintiff cannot say with certainty and prove that the Defendant was driving. To digress a moment, this kind of action is what infuriates most people about the American Legal System. Here, the Defendant was driving, three people told the police officer he was driving, and the police report says he was driving. Even so, the Defendant may not be held liable, because the Plaintiff could not prove he was driving. In this case it seems like the Defendant gets off scott-free, and he might. But, what about the opposite example: That the Defendant had his car stolen at gunpoint, and the thief caused the accident. At trial despite the fact that no witness could see the Defendant driving, the court said, "Oh well, it is your car, and you probably were driving." Of course, that result is not fair. The fairest result is to make the Plaintiff, who claims a person harmed him/her, to prove the harm and the facts surrounding the harm. This system causes untold frustration in almost every lawsuit, and once in awhile this leads to a bad result, but the alternative of making a person who was completely blame-free or innocent pay for something he/she did not do is so against our American System, that the legal system has every procedure to make sure that this does not happen. Clients should be aware of this possibility and not necessarily blame their attorney every time something like this happens. It is often just as frustrating for the attorney. If No Answer is Filed. Every Defendant in a case is required to file a formal Answer, even if they had no role in the lawsuit. They can, if they wish, file certain papers [sometimes known as a Motion to Dismiss] instead of an Answer, asking the judge to rule that they had nothing to do with the case. But, regardless of whether this motion, or an Answer is filed, the Defendant is required at come to court and defend himself. If no answer is filed, and the Defendants have been properly named and served, the Plaintiff can ask the Judge to rule that everything in their Petition is correct and that the Plaintiff should be awarded what they asked for in their Petition. Because Plaintiff’s attorneys typically ask for much more than they will receive at trial, it is imperative that a Defendant defend himself and prove why the Plaintiff is incorrect in his statements. If the judge approves, a Default Judgment can be entered against any Defendant who has been properly named and served. There are some procedural requirements and hurdles which must be met, but in a relatively short period of time, compared to the full-blown lawsuit process, a Judgment for the Plaintiff can be obtained and this Judgment can be sued to attach the assets of any Defendants in Default. A word of caution - once a bank account is frozen to satisfy a Default Judgment, a Defendant usually runs as fast as possible to the Court to claim that any Default Judgment against him/her was unfair. A Plaintiff should know that this the Default process is generally not considered by courts to be the fairest means of resolving the dispute, since the Defendant arguably never had an opportunity to defend himself. As such, much leeway will be given to a Defendant and a Default will be overturned in many instances that may not seem fair to the Plaintiff. If the Defendant Answers. Once an Answer is filed, the litigation process starts, and typically moves to either the Motion Phase or the Discovery Phase, or both. We will discuss these in the next sections. Usually included along with an Answer are certain discovery documents which must receive the Plaintiff’s attorney's, and the Plaintiff’s, immediate attention. See Discovery Discussion. Concern Area: Possibly one of the most important observations and generalizations an experienced attorney can share with his client, if the client is a Plaintiff, is that generally, once the Answer is filed, the American Legal System allows the Defendant to control the litigation, even if that may not seem fair. Thus, as a Plaintiff, you must realize that you will be reacting in many instances to Defendant’s demands and court-ordered schedules. Most importantly, while it causes many Plaintiffs concern, it does not mean your attorney is not listening to you, or that you are "losing." That is just how the Legal System tends to work, although some cases do afford the Plaintiff more control.
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