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A summary of the legal procedures involved in filing a lawsuit, from serving a summons and complaint to answering and counterclaiming, as well as the use of discovery devices and the format for business correspondence.
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Chapter 1 Summary A plaintiff is the party who sues; a defendant is the party being sued. A summons and complaint are the first documents prepared to begin a legal action. The summons notifies the defendant that an action has been brought against him or her and that the defendant should appear and defend within a stated period of time — usually 30 days in state court and 20 days in federal court. Failure to respond to a summons and complaint can result in a judgment by default against the defendant. A summons that has been properly served by mail should be stamped by the clerk of the court, have the “Return on Service of Summons by Mail” section completed, and have an attached return receipt. Summonses can be served personally, by registered or certified mail with a return receipt, or by publication. Litigation documents are filed with the clerk of the court, which may entail electronic online filing, facsimile transmission, email, or personal delivery to the clerk’s office. Every court document has a caption. The caption consists of the name of the court and venue, style of the case, file or docket number, and title of the document. The complaint has allegations in numbered paragraphs and a prayer clause demanding judgment. Chapter 2 Summary To calculate time for serving documents, do not include the first day but include the last day unless it is a Saturday, Sunday, or a holiday. If fewer than 11 days (usually 7 days in state cases), exclude the weekends and holidays. Add 3 days if served by mail. All documents served after the summons and complaint should have a certificate of service addressed to the opposing attorney. A motion to dismiss can be filed before an answer. Some of the reasons for dismissal are lack of jurisdiction over the subject matter, lack of jurisdiction over the person, improper venue, insufficiency of process, insufficiency of service of process, or failure to state a claim on which relief can be granted. Many courts require that a supporting affidavit accompany a motion to dismiss, especially on complicated matters.
For each allegation in the complaint, the answering party must admit the allegations, deny the allegations, or state that he or she is without knowledge or information sufficient to form a belief as to the truth of the allegations. An answer to a complaint may include counterclaims alleging that the plaintiff, not the defendant, is responsible for the cause of action. An answer to a complaint may have affirmative defenses, which serve as defenses even if the allegations in the complaint are true. A cross-claim is between parties on the same side of a case; a counterclaim is between parties on opposing sides. A third-party defendant who may be liable for damages can be brought into a case by a defendant. This is accomplished by filing a third-party complaint. Chapter 3 Summary Interrogatories, requests for admissions, depositions, and requests for production are discovery devices used to gather information about a case prior to the trial. Case Management/Electronic Case File (CM/ECF) is an electronic filing system that allows attorneys to file documents with the clerk of the court and serve opposing attorneys who are CM/ECF filers. PDF is the file format for submitting files electronically. Discovery documents can be served by the plaintiff on the defendant or by the defendant on the plaintiff. Interrogatories are written questions about a case submitted by one side of the lawsuit to the other. Each interrogatory is numbered, with space provided for an answer. A “To” or address line can be inserted after the document title on discovery documents. A request for admissions contains written statements about a case, which can be admitted or denied by the opposing party. A deposition is sworn testimony of a party or witness, in the presence of counsel for both sides, taken by a court reporter. A subpoena is a document commanding a person to appear and give testimony at the stated time and place. A notice of taking deposition notifies parties to a lawsuit that a deposition has been scheduled. A deposition is sworn question-and-answer testimony taken out of court and recorded word for word.
Continuation page headings should be placed at the top of the second and subsequent pages of correspondence and should include the name of the addressee, page number, and date. The information can be displayed in block format or on one line across the top of the page. Envelopes may be addressed in the same style as the inside address on the letter. Email messages have a heading, subject line, and message. The message includes a salutation, the body of the message, and a signature or signature file with contact information. Messages may also include a confidentiality statement. Email messages to those outside the form should maintain the same formality and accuracy as other types of correspondence