If you are struggling to resolve a conflict with someone, you may want to consider hiring an attorney. The legal process can be daunting, with many complicated procedures, rules and legal jargon. Here is a simplified breakdown of what happens when you file a lawsuit.
A complaint is a legal document that begins the lawsuit. The complaint lists the parties involved in the action. The party is filing the complaint, and initiating the lawsuit, is called the Plaintiff. The party who is receiving the complaint, and being sued, is called the Defendant. The complaint will list the state, county, and court where the lawsuit is taking place.
The complaint explains to the Defendant and the court the facts of what happened, what law applies, and what legal resolution the Plaintiff should receive.
SERVICES OF PROCESS
In order to begin a lawsuit, the complaint must be attached to a summons. The summons lists the address of the Defendant and is issued by the clerk of court. Once the summons is issued, you have 30 days to “serve” the Defendant with the Summons and Complaint. Serving the Defendant just means giving them the summons and complaint. This can be done by:
- Mailing the summons and complaint to the defendant via certified mail. This can cost between $5-$10 or you could try serving them by Sheriff. This costs around $30.
- Mailing the summons and complaint to the Defendant’s attorney (if the defendant has an attorney, called Opposing Counsel). Opposing Counsel may agree to accept the summons and complaint on behalf of the Defendant. If they do this, they will provide a legal document called Acceptance of Service. This eliminates the need and extra expenses of serving the document by mail or Sheriff.
- If you cannot serve the Defendant by the above methods, then you hire a process server. A process server is a person who is paid to track down the defendant and hand them the complaint and summons. The next and final step, if all else fails, is to serve them by publication. This means your attorney will post a notice in the local paper with details of the lawsuit, asking the Defendant to respond within 30 days of publication. This is the costliest method as well as time costly method.
ANSWER, COUNTERCLAIMS, & REPLY
Once the complaint and summons is served, the Defendant has 30 days to either file an answer admitting and/or denying each allegation in your complaint, or filing a request for an additional 30 days (which is normal and expected). In the answer, the Defendant may also file counterclaims– especially in a family law case. A counterclaim is a claim the Defendant is making against the Plaintiff and asking the Court to grant the Defendant what the Defendant wants. For example, the Plaintiff may file a complaint asking for primary physical custody of the children born to the marriage and child support from Defendant. In the Answer, the Defendant may file a counterclaim also asking for primary physical custody and child support from the Plaintiff. If the Defendant files counterclaims in the Answer, then the Plaintiff needs to file a Reply admitting and/or denying each allegation in the counterclaims.
Once the time to file the Answer has passed, there are additional pleadings that your attorney may need to file. For example, you and your attorney may decide that your case needs someone to represent the best interests of your child (this person is called a Guardian ad Litem). Or they may need to ask the court for extra time to file a response or gather documents. Here are some common motions:
- Motion for Extension of Time: Asks the court for more time to do something.
- Motion to Dismiss: Asks the court to reject the other side’s motion or argument.
- Motion to Appoint a Guardian ad Litem: Asks the court to assign a professional to represent the child’s best interest.
- Some other examples of common family law motions include: temporary custody, temporary child support, interim distribution, equitable distribution, temporary restraining order, compel discovery, etc.
Motions can be filed with the complaint or with the answer, or motions can be filed independently later. Motions refer to temporary relief, or minor issues that are important but not intended to resolve the entire lawsuit.
CALENDAR REQUEST AND CALENDAR CALL
After deciding to file a motion, you need your attorney to set a date for the judge to hear your motion so that they can grant or deny the motion. Hearing dates are scheduled at an event called Calendar Call. In order to schedule your hearing at calendar call, you must submit a document called Calendar Request to the clerk of court. The Calendar Request outlines the motion or issue you want to schedule for a hearing and how long you think the hearing will take. The Calendar request should then be sent to the clerk for filing. You should also send a copy to the other side (or their attorney if they have one) to keep them notified. It should be noted that the attorney is responsible for mailing the Calendar Request to the clear and OC. Once your Calendar Request is filed, your attorney will attend Calendar Call on your behalf. You must provide your attorney with your availability over the next 2-3 months for the hearing. During Calendar Call, your attorney will work with the judge and the other side to schedule your hearing on a date when everyone is available. Every case and situation is different.
NOTICE OF HEARING
Once your hearing date is set at Calendar Call, your attorney will send the other side a Notice of Hearing (NOH). The NOH outlines what matter is being heard by the judge, the date and the time of hearing, the location of the hearing, and the name of the judge who will hear the case. There is a $30 fee for each motion that is scheduled. This fee is usually paid when filing the NOH. If your motion gets rescheduled, you will have to submit a “Subsequent NOH,” which is free. Reasons as to why the motion may get rescheduled can include illness, overcrowded docket, scheduling conflict, and time to try and settle. The NOH will also be sent to the court for filing.
After your motion or issue is heard by the judge, the judge will either grant or deny your motion. The judge then signs the “Order” granting or denying the motion. Once an order is signed and filed with the court, both sides must follow the order.
Sometimes, for both sides to come to an agreement, they need more information. Discovery is the process in which each side requests or provides information to the other side. Discovery can be formal or informal. With informal discovery, each side agrees to what information and documents will be shared. There are three types of written discovery:
- Interrogatories: Asking questions to the other side
- Requests for Production of Documents (RPDs): Asking the other side to give you specific documents (usually bank statements or health records).
- Requests for Admission (RFAs): Asking the other side to admit or deny statements.
Other forms of discovery include depositions, subpoenas, and written questions in lieu of deposition. Discovery can also be served on third parties, such as an employer, bank, or therapist to get information relevant to the issues raised by the lawsuit.
Mediation is required by statute and by some local rules before having a trial. During mediation, sometimes both sides will sit in separate rooms and sometimes everyone is in one room. A mediator (often an experienced attorney or retired judge) will go back and forth with offers between the parties and try to help them reach an agreement to settle the lawsuit. The mediator can suggest a solution, but ultimately, it is up to the parties to decide if they want to reach an agreement. Mediation is recommended because it is more cost-effective than a trial and it leaves the outcome in the hands of the parties. What happens in mediation is confidential and inadmissible in court.
If mediation fails, then your attorney (or the other side) will schedule a hearing date for a trial. The trial is intended to resolve the pending issues and claims. Most orders are final and permanent, but there are some exceptions in family law cases that allow a “permanent” order to be modified.
This blog is a simplified overview of the litigation process in a family law case and is not intended to explain every aspect of the process and is not legal advice regarding your situation. Reading this blog does not create an attorney-client relationship with any attorney at Averett