Probably one of the more intimidating things people representing themselves have to contend with are court papers – the documents created, filed, served and responded to in the course of a lawsuit. It’s not that the papers are overly complicated – for the most part they are not. It is because of tradition going back hundreds of years, habits and terminology surrounding court papers have because unnecessarily complicated.
And who, not familiar with how things work in a court system, would not be intimidated. In days gone by, decorated with fancy blue binders and decorative script, bearing almost religiously concise captions and formatted just so, court papers virtually scream “this is an elite and sophisticated world, where only those learned and accomplished in our arts can tread.”
But fear not, because it ain’t so!
To get started all you need to know are the basics.
Court papers define, govern and control every aspect of a lawsuit, from start to finish, but they accomplish that in a very orderly and logical manner. Consequently, learning how to work with court papers – to create them, to understand them and to know how to respond to them – is not an insurmountable task.
In the next few posts, we’re going to discuss the different kinds of court papers you might encounter in a typical lawsuit, when and how they are used, and if a response is required, how to respond to them.
Generally speaking, court papers can be broken down into two broad categories… pleadings and everything else.
Pleadings are what we refer to as the core of the lawsuit. Pleadings frame the lawsuit. With some exceptions that we’ll talk about on down the road, pleadings define the lawsuit. A judge or jury can consider only those issues raised by the pleadings. You cannot introduce evidence in a case about breaching a contract when the complaint (a pleading) recites that the case is about a car accident.
So the pleadings in a case are not just important – they are critical. They define the “box” if you will and you’re not allowed to color outside the box.
So with that in mind, you should know the basic pleadings. We’ll talk about each one in more detail but for now, the pleadings that you need to be concerned with are:
1. The complaint.
In some jurisdictions this is referred to as a petition, but either way, it is what starts a typical lawsuit. It is the platform in which the plaintiff lets the court know what it is that he is seeking and why. Has the plaintiff been injured by the defendant in a car wreck? Did the plaintiff and defendant have a contract that they are not disputing? Did the defendant construct a fence on the plaintiff’s property? Getting these issues and matters before the court is the what the complaint is all about.
2. Answer
As it’s name suggests, the answer is where the defendant addresses the allegations of the complaint. This is where the defendant can deny what the plaintiff is alleging. It is where the defendant can interpose other issues, such as affirmative defenses (more on that issue later). The complaint and answer together frame the lawsuit. From those two documents someone can see what the lawsuit is about and the positions of the parties.
3. Counterclaim
This is a good one. It is filed with an answer and basically raises any claims the defendant might have against a plaintiff in a lawsuit. It serves the same purpose as the complaint but with roles switched around. An example where you might see a counterclaim would be in a breach of contract lawsuit. Two people enter into a contract and later a dispute arises. The plaintiff files a lawsuit aginst the defendant, alleging that defendant breached the contract. Defendant believes that it was in fact the plaintiff that breached, so a counterclaim is filed.
4. Reply
With respect to a counterclaim, a reply serves the role of an answer. It is a the plaintiff’s response to the defendant’ counterclaim.
Other Court papers
In addition to the pleadings listed above, you will encounter other papers in the course of a lawsuit.
The first kind are what we refer to as hybrid or quasi pleadings. They are filed at the or near the beginning of the case and are important, but they are not core pleadings in that once addressed, they are no longer considered – unlike pleadings which are referred to and are part of the case from start to finish.
Demurrer/Motion to Dismiss
Demurrer is a term that derives from old english common law. It is used in some jurisdictions in the US., but not all. In lieu of a demurrer, other jurisdictions provide for a Motion to Dismiss instead. The gist of these two documents is that even assuming that everything that the plaintiff alleges in the complaint in terms of factual issues is true, they still cannot win as a matter of law. An example would be suing someone for injuring you in a car accident seven years after the accident in a state where the statute of limitations is six years. A demurrer or motion to dismiss would basically state that, “ok, everything you say is true – there was an accident, I caused it, you were injured, you had medical bills, etc., etc., but…. You waited too long to sue me and the case should be dismissed.”
We call these hybrid papers because while they technically are included as pleadings, they are not the same. When a demurrer or motion to dismiss is heard, one of two things will always happen: the demurrer or motion to dismiss will be granted and the case dismissed, or the plaintiff allowed to amend the complaint, or, it will be denied. Either way, it will not be addressed or be in any way relevant again. This is different from a core pleading which remains an integral aspect of the case throughout.
Motions
Another one of those terms that tend to confuse and intimidate. When mention of a motion is made to a pro e litigant, it is often met with a glassy-eyed look. No need for any confusion. If you just substitute the words “I am asking the court for” in place of motion, it all becomes crystal clear.
Motion for summary judgment = I am asking the court to grant me summary judgment
Motion to compel discovery = I am asking the court to compel discovery.
Discovery
Once a civil case gets underway, all states as well as the federal court system have provisions for exchanging information. These range from sending the other side written questions (interrogatories), to requesting the production of documents, to the taking of the testimony under oath of a party or a witness. Again, even though these documents are necessary elements of a court case, they are not included in the “core” pleadings.
So as you can see, what looks like an overwhelming assemblage of papers and documents to be assembled, created, read and understood, it really isn’t. When you break it down in a logical way, it all makes sense.