Practice Areas - Civil Litigation
What is a civil lawsuit?
Usually this is brought to collect money owed, for negligence
(auto accidents), other harms or wrongs, or to protect property or
seek damages. The Plaintiff is the person bringing the civil action,
and the Defendant is the person defending the civil action. It is
distinguished from a criminal action because there is no jail, probation
or fine involved.
How is a civil lawsuit brought?
You file a complaint with a Court, or in New Hampshire a Writ of Summons or
Petition in Equity. This is served, usually by a sheriff, on the other
party, who has a certain period of time in which to answer as stated in the
summons (in Maine 20 days from the date the summons is served), or as stated in
the writ or orders of notice with the Petition.
What happens once the person is served with a civil lawsuit?
This Defendant has to answer within the time required. If no answer is prepared
and filed with the appropriate Court, then the Defendant is defaulted. Once
defaulted the Defendant loses the case, unless the Court, after a Motion, allows
the Defendant back in the case to defend. If the Defendant has a claim against the person
who sued the Defendant can bring this claim as a counterclaim. If the Defendant has a claim
against a co-Defendant that person can bring such a claim as a cross-claim, and if the Defendant
believes another person not part of the lawsuit is responsible for the damages then the Defendant
can bring a Third-Party Complaint against the other person.
Does the person filing a civil action (Plaintiff) have any way to protect himself or herself
while the case is pending?
Yes. There are three common ways of protecting a Plaintiff’s rights. If the Defendant owes
money to the Plaintiff, then the Plaintiff can bring a Motion for Attachment against the
Defendant and ask the Judge for an attachment. This allows the Plaintiff to secure property,
assets, or money owned by the Defendant (freeze the asset so to speak) so that it will be there
to satisfy a judgment should the Plaintiff get one against the Defendant.
A second way is through a Preliminary Injunction or Temporary Restraining Order.
Such an order will prevent someone from taking action, or force them to take certain action,
pending a final judgment in the case (such as an order preventing a person from trespassing on your
property, or harassing you).
The third way is when a case involves questions of ownership of real estate. In such a case a
Plaintiff can record a Lis Pendens, a certificate signed by a Clerk of the Court indicating that a
lawsuit has been commenced which deals with the ownership of certain real estate. This would put a
potential purchaser on notice that the Plaintiff has a claim to that real estate.
What is discovery?
Discovery is often conducted while a case is pending. It typically consists of four types of
discovery:
1) Interrogatories, which are questions to a party for that party to answer, in writing,
within thirty days.
2) Request for Production of Documents, which are requests to receive copies
of documents that a party, or witness, has in his or her possession.
3) Depositions, which require
a party or witness to appear in person and answer questions about the case under oath, with an
attorney asking questions to a party or witness with a stenographer.
4) Inspection of property or
persons, which allows a party to inspect property or, when necessary have an expert (such as a doctor)
inspect a person, when something about the property or of the person is relevant to the lawsuit.
Can I request a jury trial?
In most cases you can request a jury trial, but you must often do so at the beginning of the case.
If you don’t do it by the time required by the Rules or Orders of the Court, then you will lose your
right to request a jury trial. In the State of Maine if you request a jury trial you must pay a fee of
$300.
What is Alternative Dispute Resolution (often called ADR), and is it required?
In some Courts ADR is required by law. In those cases where it is required this requirement can be
satisfied by mediation, which is non-binding and requires that the parties all meet with a neutral person,
often an attorney paid for by the parties, who will try to assist the parties in reaching a resolution in
a case. Mediation is usually done early on in the process. Parties can agree to arbitration, which is
usually binding on the parties and is conducted more like a hearing in front of a judge (except it is in
front of an arbitrator or panel of arbitrators). The only requirement of mediation is the parties
attempt to resolve the case in good faith.
What is a Motion for Summary Judgment?
A Motion that is filed to obtain a judgment prior to trial in a civil lawsuit is usually a Motion
for Summary Judgment. It will be granted only in limited circumstances, which are when there are
no material facts in dispute and the law instructs the Court what the result should be. This is an
important tool for parties in civil lawsuits, but should be used only when there is a reasonable chance
of success on such a Motion. Factual disputes, such as what happened or who is telling the truth, must
be resolved at trial. Legal disputes can be resolved by summary judgment when the material facts are
not in dispute, and can shorten the civil litigation process.
How long does it take to resolve my case?
In some District Court cases it can take 6 months to a year to have a final hearing. However, in
most cases it will take an average of 1-2 years for a final resolution of the case.
Will the other party have to pay my attorney’s fees?
Courts follow the American Rule which require each party to pay his or her own attorney’s fees.
There are two exceptions. First, if the parties have agreed in a contract that one party will pay
attorney’s fees to the other party in certain circumstances (usually upon breach of the contract),
then the court will enforce this contract or agreement between the parties. The only other way is if
there is a statute which allows a party to receive attorney’s fees in a case. You should ask your
attorney whether there is such a statute in your case. In most cases there is not.
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