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03. Civil Litigation
Settlements vs. Trials -
Civil litigation occurs in the civil law courts. Commercial litigation involves business disputes.
A lawsuit is commenced by the filing of a complaint by the plaintiff with a court. A summons and copy of the complaint are then served on the defendant or defendants who have a specified period of time to file an answer (or other response, such as a motion) to the complaint. The exact time period for the defendant to answer varies depending upon the court involved and the method of service. If a defendant is served with a summons and complaint and fails to answer, the plaintiff may apply for a default judgment.
If the defendant answers, the next stage of litigation is discovery (discussed below) and motion practice (discussed below). If the litigation does not voluntarily settle or get disposed of through motion practice, it will then go to trial or, in certain cases, to alternative dispute resolution (discussed below). The trial stage results in a judgment (or sometimes in a mistrial). If the judgment is in favor of the plaintiff, the next stage in the litigation is judgment enforcement. Even if a defendant appeals a judgment, a plaintiff can usually seek to enforce its money judgment unless the defendant obtains a stay pending appeal, which usually requires the defendant to post a bond.
A motion is a written request to the court to grant relief based on statutory and/or case law. Motion practice refers to substantive or procedural motions that a litigation party files in court. Procedural motions affect the procedural conduct of the case, for instance, compelling one party to respond to interrogatories. A dispositive motion is a motion that, if granted, disposes of the case, such as a motion for summary judgment or a motion for dismissal. A motion for summary judgment can be generally described as a motion seeking judgment prior to trial on the grounds that based on the facts of the case and applicable law there are no triable disputed factual issues. A dismissal motion is a motion seeking dismissal of a lawsuit. Effective motion practice can play an important role in the outcome of litigation.
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