Anatomy of a Lawsuit

November 16th, 2009


This explanation tracks the anatomy of a typical lawsuit.  Of course, each case is different, but this is meant as a rough overview of the process.

Beginning of a Lawsuit

A lawsuit begins when someone goes to the courthouse and files a complaint against someone else. The person suing is the plaintiff. The person or company being sued is the defendant. A complaint is a document which explains who the plaintiff is, who the defendant is and why the plaintiff is suing the defendant. The complaint must be filed within the applicable statute of limitations. A statute of limitations is a law (sometimes a state law and sometimes a federal law) which limits how long a plaintiff can wait before bringing suit.

When the plaintiff files a complaint, he or she also files a summons. The summons provides the address of the defendant and explains to the defendant that it (or he or she) has been sued and it has only so many days to respond. The complaint and the summons are served on the defendant — typically by a sheriff’s deputy (in a state court lawsuit), a federal marshal (in a federal court lawsuit) or via certified or registered mail.

Upon receipt of the complaint and summons, the defendant has only so many days to file a response (in federal court it is 20 days). The response usually filed is an answer. The answer responds to each allegation in the complaint by either admitting the allegation, denying the allegation or stating that the defendant does not have sufficient knowledge to either admit or deny the allegation. Also, the defendant will raise any defenses it has to the lawsuit in the answer. For example, if the defendant believes that the lawsuit was not filed within the statute of limitations, it will assert the statute of limitations as a defense.

However, instead of filing an answer, the defendant can file a motion to dismiss. This motion basically says that there is a clear-cut reason why this lawsuit should be dismissed right off the bat. For example, let’s assume John Doe sued his defendant for age discrimination alleging that he was fired at the age of 39 and replaced by someone who is 19. His defendant might move to dismiss the lawsuit because someone who is 39 is not protected by the federal age discrimination laws (you must be at least 40).

Of course, there are countless other reasons a defendant might file a motion to dismiss.  If a motion to dismiss is filed, then the plaintiff must file a response. The court will then rule on the motion. If the motion is granted, then the lawsuit is over. If the motion is denied, then the lawsuit continues.


Once the lawsuit begins, the parties engage in a period of discovery — in other words, learning about the strengths and weaknesses of each other’s case. Some of this discovery is mandated by the court.  The Rules of Civil Procedure require each party to disclose the identity of certain witnesses and the existence of certain documents that are relevant to the lawsuit.

In addition to these required disclosures, the parties are provided several tools they can use to discover information from each other (or from third parties).

The following is a list of the most common tools:

  1. Interrogatories – These are written questions which must be responded to under oath.
  2. Requests for Admissions – These are written statements which the other side must either admit or deny. They are used to pin down the other party on a particular issue.
  3. Depositions – These are formal interviews under oath of the other party or of a witness. At all depositions, both parties are present along with their attorneys and a court reporter. The court reporter makes a transcript of everything that is said. Also, depositions are sometimes videotaped. A witness can be asked any question as long as the question is “reasonably calculated to lead to the discovery of relevant evidence.” In other words, you can be asked just about anything. In employment discrimination cases, many depositions are usually taken, and a single deposition can last more than a day.
  4. Requests for Production of Documents – These are written requests for an opportunity to view and copy certain documents that the other side has in its possession or control. For example, if an plaintiff is suing because he did not receive a promotion, he might submit a request to the defendant asking to see the personnel files of the other plaintiffs who were considered for the promotion.

Pre-trial motions

Usually, the federal court will set a cut-off date by which all discovery must be completed. In employment discrimination cases, the defendant will often file a motion for summary judgment during (or at the conclusion of) the discovery process. A motion for summary judgment is a written document filed with the court asking that the case be dismissed before trial.

To understand how a judge rules on a motion for summary judgment, you must first understand the role of a judge and jury at trial. The judge has the responsibility to make sure that the correct law is applied to the case and the jury has the responsibility for determining what the facts are in the case. The jury is often referred to as the finder of fact. When a jury makes its decision at the end of a trial, it is the judge who tells the jury what the law is, and it is the jury who then decides what the facts are. Once the jury has decided the facts, it applies those facts to the law given to it by the judge and determines which party should prevail.

What does this have to do with a motion for summary judgment? When deciding a motion for summary judgment, the district court judge is not allowed to decide the facts — because that is the job of the jury. Therefore, in deciding the motion, the judge is required to assume that the plaintiff’s version of the facts is correct; and then the judge proceeds with deciding whether the case should be dismissed as a matter of law anyway.

Let’s look at an example to make this clear. Jack Doe (John’s father) sues his defendant for age discrimination when he is terminated at age 65. Jack claims he was replaced by another worker age 64. The defendant’s position position is that Jack’s job was abolished as part of a corporate downsizing, and that the 64 year-old worker is not performing Jack’s old job.

In ruling on the motion for summary judgment, the judge must assume that Bill’s version of the facts is correct — at least to the extent that Jack has admissible evidence or can show he will have admissible evidence at trial. Therefore, the court assumes that Jack, age 65, was replaced by another worker, age 64. However, even though Jack’s version of the facts is presumed to be correct, the defendant still gets the case dismissed on summary judgment. Why? Because the Supreme Court has decided that if a plaintiff is trying to prove age discrimination by showing he was replaced by a younger worker, the worker must be “substantially younger,” and as a matter of law, one year younger is not substantially younger. Or stated another way, under the law, a difference of one year is not enough to make out a case of age discrimination.

But what happens next if the motion for summary judgment is denied? If the motion for summary judgment is denied, or if no motion is filed, then the case proceeds to trial.


Every trial is either a bench trial (meaning neither side asked for a jury, and the judge will be the sole decisionmaker) or a jury trial. The first thing that happens at a jury trial is the selection of the jury. In federal court, the size of the jury will vary, but at a minimum, there must be six people on the jury. The process for selecting the jury is referred to as voir dire (meaning “to speak the truth” and pronounced vwär´ dir´). Voir dire is where the judge and the attorneys ask questions of potential jurors to make sure that the each juror could be fair in this particular case. Since the process for selecting the jury differs from court to court, the following is a typcial scenario.

On the morning of the trial, many citizens who have been summonsed for jury duty will be sitting in the audience. The judge will have the court clerk call the names of several people (at random) to come sit in the jury box. These people are now potential jurors for this case. The judge tells the potential jurors the names of the parties, the names of the attorneys, and tells them a little bit about the case. The judge asks whether the potential jurors know any of the parties or the lawyers. Also, the judge may ask some basic questions that the attorneys will want to know. For example: “have any of you ever been a plaintiff or defendant in a lawsuit?” When the judge is finished, the plaintiff’s attorney and the defendant’s attorney are allowed to ask questions.

When they are finished, they are given an opportunity to exercise challenges. A challenge is like a ticket that entitles the attorney to excuse one potential juror from this case. Each side only has so many challenges — typically four in a federal court lawsuit. If neither side uses any challenges, then the persons sitting in the jury box will be sworn in as jurors for this case. However, if some of the potential jurors are excused by the attorneys, then the clerk will fill those seats by calling additional names. The attorneys then ask questions again and the process continues until either the attorneys choose not to exercise any more challenges or until they have no more challenges left.

At that point, the judge will swear in the jury and the trial is ready to begin. The next thing that happens is the attorneys make their opening statements. The plaintiff’s attorney goes first. The purpose of an opening statement is to explain to the jury what the case is about and what this attorney intends to prove during the trial.

After both sides have completed their opening statements, the plaintiff then must present her evidence. This is usually done through calling witnesses. After the plaintiff’s attorney questions a witness, the defendant’s attorney has the opportunity to cross-examine the witness. Once the plaintiff has presented all of her evidence, she rests her case.

At this point in the trial, the defendant’s attorney will typically ask the court to dismiss the case on the basis that no reasonable jury could find for the plaintiff. This is referred to as a motion for a directed verdict. It is similar to a motion for summary judgment, but is made during the trial. If the motion for a directed verdict is granted, then the case is dismissed. If the motion for a directed verdict is denied, then it is the defendant’s turn to put on its evidence.

The defendant does not have to put on any evidence because it is the plaintiff who has the burden of proof. In other words, the plaintiff must convince the jury that she was a victim of discrimination, as opposed to the defendant having to convince the jury that it did not discriminate against the plaintiff. The plaintiff has the burden of proving her case by a preponderance of the evidence. Stated another way, the jury does not have to be absolutely convinced that the plaintiff was a victim of discrimination — it just has to find that it is more likely than not that the plaintiff was a victim of discrimination. If you like to think in terms of percentages, the plaintiff must convince the jury that it is at least 51% likely that she was a victim of discrimination. If the jury believes it was 50% likely that there was discrimination (and consequently, 50% likely that there was no discrimination), then the plaintiff has failed to prove her case and the defendant wins.

Even though the defendant is not required to put on any evidence, it usually does. The defendant will call a witness and when it finishes asking questions, then the plaintiff’s attorney has the right to cross-examine.

When the defendant finishes putting on its proof, then it rests. At that point the plaintiff can call additional witnesses to rebut the testimony of any witness called by the defendant. This is called rebuttal. Then the defendant can call any witness to rebut the plaintiff’s rebuttal witness. This is called surrebuttal.

Once all the proof is in, the defendant will typically renew its motion for a direct verdict. Once again, if the motion is granted, the case is over. If the motion is denied, then the case is given to the jury to decide.

The next thing which occurs is that the attorneys present their closing arguments. The plaintiff’s attorney gets to go first and last — with the defendant’s attorney sandwiched in between. In closing arguments, the attorneys attempt to persuade the jury that their version of the case is correct.

After closing arguments are over, the judge will instruct the jury on the law. In other words, the judge will explain to the jury what it must find in order to determine that the defendant has discriminated against the plaintiff. The jury decides the facts and applies the judge’s instructions to the facts (as it finds them). When the jury makes a decision, it returns to the courtroom and announces its verdict.

If the jury has found in favor of the plaintiff. it probably has also followed the jury instructions and awarded the plaintiff damages.

After the jury has decided the case, there are numerous types of post-trial motions that both sides can file. For example, motions to overturn (or set aside) the jury verdict; motions to increase or reduce the amount of damages awarded; and motions for a new trial based upon mistakes the court made during the trial.


Court of Appeals

Once the case has been decided by a judge or jury at the district court level, either party to the lawsuit can appeal the decision to the circuit court of appeals if the party is dissatisfied with the outcome. If a party decides to appeal, that party becomes the appellant. The party that did not appeal is referred to as the appellee. As a result, either the plaintiff or the defendant can be the appellant, and either the plaintiff or the defendant can be the appellee. It just depends upon which side decides to appeal.

Each case on appeal is decided by a three-judge panel. The attorneys for each side are required to submit written briefs explaining their positions and then the attorneys travel to Cincinnati for oral argument. Each side is usually given 15 minutes to explain their position to the three-judge panel and to answer any questions the panel may have. After oral argument, the panel either reaches a consensus as to what the decision should be or they literally vote amongst themselves as to what should be the majority decision. The decision does not have to be unanimous.  Then the panel will issue a written opinion explaining its decision.  The parties doe not learn how the case is decided until the written opinion is issued — and that can take up to a year or more after oral argument.

If either party is unhappy with the decision from the three-judge panel, then that party can either (1) ask the three-judge panel to reconsider its decision; (2) request a hearing before all of the judges from that circuit (called a hearing en banc and pronounced “òn bónk”); or (3) ask the U.S. Supreme Court to hear the case.  Moreover, a party can pursue just about any combination of these three options. But if a party wishes to pursue each of these three options, they must be pursued in the order they are set forth above.

Finally, while a party can try to pursue any of these three options, the party does not automatically have a right to any of these three options.  If the three-judge panel does not want to reconsider its decision, then it will deny the motion to reconsider.  If the Sixth Circuit, en banc, does not want to hear the appeal, then it will deny the motion for hearing en banc.  The third option, petition to the U.S. Supreme Court, is discussed below.

U.S. Supreme Court

A party who is dissatisfied with the outcome in the court of appeals can ask the Supreme Court to hear the case by filing a petition for writ of certiorari. If the petition is granted, the case is heard. But most times the petition is denied — and that is the end of the matter.

If the case is heard by the U.S. Supreme Court, all nine justices will participate in deciding the case unless one of them recuses (same as excuses) himself or herself from that particular case. The party who filed the petition is referred to as the “petitioner” and the party responding to the petition is referred to as the “respondent.”

Both the petitioner and respondent will file written briefs explaining their positions. Also, they will typically travel to Washington, D.C. to participate in oral argument. Several weeks or months after the case is argued, the Court will issue a written opinion.

There is no right of appeal beyond the United States Supreme Court.

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