Annotated Outline of a Civil Action

Links to Civil Rules

Federal
Federal Rules of Civil Procedure
Federal Rules of Appellate Procedure
U.S. Supreme Court Rules
Washington
Washington Court Rules
Washington Rules of Appellate Procedure

Pre-Trial Stage

Step of Pre-Trial Proceedings Example

Preliminary investigations, interviews

Demand letter  
Settlement discussions  
Evaluate jurisdiction and decide where to file suit - state or federal court; which state; which venue?  
Service of summons and complaint (or substitute)
File certificate of service
File corporate disclosure statement  
Plaintiff files jury demand  
Responses to the complaint  

Answer, admitting or denying each allegation in the complaint

Motion attacking plaintiff's summons and complaint

 

(1) lack of subject matter jurisdiction

 

(2) lack of personal jurisdiction over a defendant

 

(3) improper venue

 

(4) insufficiency of process

 

(5) insufficiency of service of process

 

(6) failure to state a claim upon which relief can be granted

 

(7) failure to join a necessary party

 

Counterclaims, cross-claims, third-party claims, joinder of additional parties

 

Motion for more definite statement - if a statement of a claim is so vague that the opposing party is unable to respond

 

Motion to strike - asks the judge to remove "redundant, immaterial, impertinent, or scandalous matter" from a pleading

 

No response (default judgment)

 
Motion for judgment on the pleadings - asks the court to dismiss simply based on the statements in the parties' complaint and answer  
Intervention - by interested party who wants to join in the lawsuit  
Pretrial conference - court will often issue pretrial order listing deadlines for discovery and trial
Discovery (factual development)  

Discovery conference - parties meet and confer

 

(1) initial disclosures by both parties (names of potential witnesses, existence and location of documents, basis for damage calculation, availability of insurance to cover a damage award)


(2) depositions under oath - of any person with information about the lawsuit.  Attorney may need to issue subpoena to compel reluctant witness.  Attorney can present questions to witness in person or in writing.

(3) written interrogatories to opposing party (not to witnesses)

 

(4) request for production or inspection of documents (to party only, not to witnesses)

 

(5) physical and mental examinations

 

(6) requests for admission

 

Request sanctions if opposing party refuses to cooperate in discovery

 

Move for protective order to protect a party or any witness from "annoyance, embarrassment, oppression, or undue burden or expense"

 
Motion for summary judgment - mechanism for deciding case w/out trial when "no genuine issue of material fact"
 

This motion says:  "This case presents no genuine issue of material fact and so the court should decide the case as a matter of law."


Supported by witness' affidavits/declarations, exhibits exchanged during discovery, deposition transcripts

Summary judgment order  - if motion granted, plaintiff's case is dismissed and the case will not proceed to trial stage.

 

Trial Stage
(fewer than 5% of all cases commenced in federal courts go to trial)

Step of Trial Proceedings Example

Trial date set - either now or via earlier pretrial order

Trial briefs

Parties propose jury instructions
Motions in limine

Jury selection, voir dire (unless bench trial)

for cause challenges

 

peremptory challenges

Objections - Parties must be vigilant throughout the trial and make proper objections when necessary, to preserve the client's right to challenge an aspect of the trial on appeal  
Plaintiff's opening statement - gives jury an overview of the case
Defendant's opening statement - could also delay until later in case
Plaintiff's case-in-chief  

For each witness (may require subpoena to secure witnesses' attendance at trial):

Plaintiff’s direct examination

 

Defendant's cross-examination - can impeach witness' testimony with statements made during deposition.

 

Plaintiff's redirect

 

Defendant's re-cross

 

Documents introduced into evidence (either admitted or excluded)

 
Plaintiff rests  
Defendant's motion for judgment as a matter of law - also called motion for directed verdict

This motion says:  "Even if all evidence plaintiff has offered is true, plaintiff has no right to relief."  Plaintiff has "failed to make a prima facie case."  Judge assumes all plaintiff's evidence is true and makes all inferences in favor of plaintiff and asks whether a reasonable person could decide for plaintiff.

Defendant's opening statement - unless made earlier  
Defendant's case-in-chief  

For each witness:

 

Defendant's direct examination

 

Plaintiff's cross-examination

 

Defendant's redirect

 

Plaintiff's re-cross

 

Documents introduced into evidence (either admitted or excluded)

 
Defendant rests  
Plaintiff's case-in-rebuttal - limited to refuting matters raised during prior phase  
Plaintiff's motion for directed verdict - rarely granted in typical case in which plaintiff has burden of proof  
Both parties eventually rest their case  

Plaintiff's or defendant's (but usually defendant's) motion for judgment as a matter of law - seldom granted for either party; especially rare for court to grant this motion for plaintiffs.

 

Defense motion says: plaintiff has not satisfied his or her burden of proof

Plaintiff's motion says:  plaintiff has satisfied his or her burden of proof as a matter of law, so no reason for jury to decide the case

 
Parties/court agree on final set of jury instructions and resolve objections  
Plaintiff's/defendant's closing arguments to the jury - bring all evidence together, spin it, articulate favorable inferences, weave it into a compelling story.  
Charge to the jury - jury instructions presented orally by judge, often jurors receive written copy as well
Jury deliberates  
Verdict - read out loud in open court, jury polled to make sure no mistake. Alternately, if neither party requested a jury, the judge will enter findings of fact, conclusions of law, and a judgment.
Motion for judgment notwithstanding the verdict (j.n.o.v.)

This motion says:  "Even if all the winner's evidence is true, and the winner is given all reasonable inferences from that evidence, the loser is entitled to a verdict as a matter of law."

 
Entry of judgment
Motion for a new trial

This motion says:  "The loser is entitled to a new trial because of some trial court mistake (erroneous admission or rejection of evidence, misconduct of counsel,  newly discovered evidence, verdict is against weight of evidence)."

 
Attorneys' fees and costs - must sometimes be paid by losing party  
Motion for relief from judgment / motion to amend or alter judgment - grounds can include jury tampering, judicial bias, etc.  
Notice of appeal

 

Appeal

Step of Appellate Proceedings Example
Appeal scheduling order / Mediation or conference - some courts require parties to confer with a mediator to determine whether appeal can be resolved through alternative dispute resolution
Appellant arranges to have the trial court record forwarded to the appellate court  
File excerpts of record or appendix - most courts require parties to compile the key documents that are involved in the specific legal issues on appeal
File and serve appellant’s opening brief
Appellee’s (or respondent's) responding brief
Amicus brief - submitted by non-party that wants to share its perspective with the court  
Appellant's reply brief
Appellee's (or respondent's) sur-reply brief - often need court's permission  
Bench memorandum - judicial law clerks often prepare bench memoranda based on appellate briefs and the record (the documents and exhibits in the trial file); suggest questions to clarify legal positions and issues, make recommendation to panel of appellate judges  
Oral arguments

Clicking the link will cause an audio file to play.  Make sure your speakers are turned on

Judges’ conference, "straw vote," assignment of opinion writing - most cases at intermediate courts of appeal are heard by three judges  
Opinion drafting process (varies widely, but this is one example)  

(1) judge assigned to write the opinion for the panel conducts further research and analysis of case with assistance from law clerk

 

(2) judge or clerk composes draft opinion

 

(3) judge circulates draft opinion to other judges with cover sheet

 

(4) other judges elect to sign on, sign on with conditions, concur or dissent      

 

(5) other judges and their clerks offer helpful revisions - this process can recur many, many times after revisions are made.  In the 9th Circuit, clerks send feedback via a "nit memo," given its name because the clerk "nit-picks" the citation, grammar, typos, etc.

 

 (6) if opinion convinces majority of court or panel, law clerk assembles judges' revisions, verifies accuracy of quotations, citations, and substantive legal claims.  If a judges disagrees with the opinion as written, may draft a separate concurrence or dissent.

 

(7) law clerks checks every factual assertion against the record

 

(8) final version circulates to the judges one last time, then is published and sent to the parties

 

(9) law clerk or court staff prepare press release

 
Opinion issued - can be published or unpublished
Petition for panel rehearing - party who lost the appeal asks the three-judge panel to reconsider its decision  
Petition for rehearing en banc - federal courts of appeals only, asks all active judges on the entire court to reconsider the three-judge panel's decision  
Issuance of mandate - this is the appellate judgment, terminates the appeal
Petition for review, petition for writ of certiorari to Supreme Court  
Discretionary review by highest court in a jurisdiction

Criteria include:  whether case presents significant issue of law (e.g., constitutional or statutory interpretation); whether the issue or a similar issue arises often; whether many people are affected by the decision; whether the issue is one of first impression for the Supreme Court; whether present case law is inconsistent (among Court of Appeals cases, between Court of Appeals cases and Supreme Court cases, or among Supreme Court cases); whether the Court of Appeals decision appears to be wrong; whether the issues are well presented in the briefs. [this is a partial list from Oregon; other jurisdictions surely vary.]

 

 

Last updated October 5, 2006.  Comments or questions? Contact Tom Cobb, Sarah Kaltsounis, or Joan Foley.