The Path: The Civil Process, Explained
The civil courts provide a forum for resolving disputes between individuals and organizations that do not involve criminal charges. For individuals looking to hold another person accountable for harmful conduct, the civil courts may offer a path for securing financial compensation for the damages you’ve suffered. Or, you may seek a court order directing a person to do-or not do-something (i.e., a restraining order).
Our team of experienced litigators provides high-touch legal guidance to clients looking to address harm by suing for money damages, or to prevent harm by obtaining a court order through our service The Path.
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A civil action is a legal process intended to resolve a dispute or address a harm between people or organizations.
A civil action differs from a criminal action in a few important ways.
There is no prosecutor involved. In a civil action, an attorney sues another person or organization on behalf of its client by filing a civil claim in court. The person filing the claim is called the plaintiff. The person or organization against whom the claim is being filed is called the defendant.
Typically the plaintiff filing the claim is seeking money for the damages the suffered because of the dispute or harm. The civil action is not punitive like the criminal system, so a plaintiff cannot seek jail time for the conduct of the other party.
Different laws apply. In a civil action, the civil laws of the state and federal government apply, which means that plaintiffs have a wider range of things they can sue a defendant for in civil court.
What are Typical Civil Actions?
Some typical civil actions include
Harassment
Discrimination
Negligence
Assault
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Most basically, as a plaintiff in a civil action, you control whether to file the case and how to resolve the case. As a complainant in a criminal case, you don’t.
In a criminal case, a victim participates in the process by making a report and providing evidence in the investigative and trial phases. The decision of whether to file criminal charges, though, belongs to the government, not the victim. The victim’s opinion matters, and the prosecutor may consult the victim, but they do not have the final say.
In a civil case, the plaintiff is in the driver’s seat throughout the process. For example, the plaintiff can decide what compensation to ask for, when to settle and whether to “drop” the civil suit.
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A civil case is initiated when an attorney files a claim in court stating that a person or organization violated the law or otherwise caused harm and seeking damages to right the wrong.
First step, is to consult an attorney to determine if you have a claim.
Step two, is to hire an attorney to represent you in the civil action. This will establish a confidential attorney/client relationship between you and your attorney.
Step three, confer with your attorney to decide the most strategic way to try to obtain the outcome you’re seeking.
Once you have determined that you would like to proceed with a civil action, your attorney will likely draft a written statement of your complaint. The complaint will detail the harm caused to you by the other party, citing the relevant legal statutes.
Once a complaint is filed, the defendant will then be allowed to file an answer with their response to your claims including any defense they are asserting. The defendant may also respond with a counterclaim [more below] or ask the court to consider dismissing some or all of the claims.
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Civil cases can be resolved by the parties through a settlement agreement, or by a judge or jury at trial.
Settlement Agreement
A civil settlement is an agreement reached between two parties in a civil lawsuit before going to trial. Instead of having a judge or jury decide the outcome, both parties negotiate and come to a compromise. This usually involves one party agreeing to pay the other a certain amount of money or taking specific actions to resolve the issue.
Mediation
If settlement negotiations are not possible or fruitful between the parties, another step in the process may be mediation. In mediation, a third party (the mediator) is assigned to your case to help the parties reach a resolution. The mediator can be chosen by the parties, so as to find someone who will be impartial and acceptable to both parties. The mediator will hear from both sides and may choose to hold meetings with one or both parties. If mediation successfully resolves the dispute, both parties will sign off on a settlement agreement at the end of the process.
Arbitration
If no settlement is forthcoming from negotiations or mediation, you may consider arbitration as an alternative to filing a lawsuit. Arbitration can be a less time consuming and less financially burdensome alternative to pursuing your case in court. In an arbitration, both parties will present their cases, including that of witnesses, before an arbitrator or panel of arbitrators. The arbitrator will then make a decision about the case. It is important to note that if you choose to use arbitration to resolve a dispute, in most cases you are giving up your right to file a lawsuit.
Trial
If settlement is impossible to reach and arbitration is not an option that appeals to you, you may be left with no recourse but to consider dropping your claim or proceeding to trial.
Once you have filed a complaint and the respondent has been given the chance to respond with their own filing, the court will inform both parties of the timeline to trial. Next, both sides will undergo an information gathering stage referred to as “discovery.” This stage might include the production of evidence, attorneys carrying out depositions, and sending out subpoenas. Once discovery has been completed and analyzed by both parties, pre-trial hearings make take place to make certain rulings about how and when trial can proceed. Once your case goes to trial, a judge or jury will now be the one deciding the outcome of the case. It is important to consider whether or not you are comfortable with the public nature of a trial.
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Depending on the facts of your case and the financial considerations, an attorney may seek to be retained on a contingency fee basis. This means that you will not owe any payment upfront for the attorney’s services. Instead, you will agree to compensate the attorney with a percentage of any compensation you receive as a result of the attorney’s efforts. Depending on the agreement you make with your attorney, certain fees and disbursements associated with filing a lawsuit may additionally be deducted from the overall recovery amount. When you engage an attorney, it is important to be clear from the outset whether and which fees will be covered by you in the event that there is no money recovered.
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There are laws that govern how long after an event a case may be brought before the court. These laws are called statutes of limitations. Cases that are brought after the statute of limitations has run out may be classified as “time-barred” and can be dismissed on those grounds. It is important to note the statute of limitations that applies to the harmful conduct in your case. While it can take time and healing to be ready to pursue civil action, it is important to note that there are specific windows of time to come to a decision. The amount of time you will have to make a claim will depend on the type of claim you are making.
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When contemplating a civil suit, it is important to consider several possible retaliatory responses from the other party. You will have to weigh the possibility and risk of the following outcomes and may benefit from talking through the repercussions of each with an attorney.
Cross complaint
A cross-complaint is when a defendant files a complaint against the plaintiff or third party related to the original complaint. While the defendant will still need to go through the regular course of procedure with respect to the original complaint, the plaintiff will now be considered a cross-defendant in the cross-complaint and will similarly need to respond through the proper legal channels. If you file a complaint and proceed with a civil suit, you should be prepared for the possibility of a cross-complaint filed against you. An attorney can help you understand and consider the relative risks of a possible cross-complaint.
Defamation threat
Someone can sue you for defamation if they believe you have made a false statement about them or their conduct that, in turn, hurt their reputation. As long as any claim you make about someone is the truth, you should have no fear of defamation. Unfortunately, that does not mean that someone will not make a defamation claim against you. You should be prepared for the possibility and that is why it is important to tread carefully with where and how you relay information about your complaint during the civil process.
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Yes, nothing prevents a person from bringing a civil action based on criminal conduct, even while a criminal case is pending. But it’s wise to think through the timing carefully. A case by case analysis will be needed to weigh the advantages and disadvantages of whether and when to pursue a civil action in a situation that involves criminal conduct.
