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Basic Pleadings and Motions in a Civil Lawsuit

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Pleadings are formal written documents that are filed with the court. Pleadings are public documents unless sealed by the court. The court's rules tell you what needs to be included in a pleading and how it should look. For example, each pleading has to contain the name of the court, the title of the suit, and the docket number, if one has been assigned.

Complaint
A lawsuit begins when a plaintiff (the party suing) files a complaint against a defendant (the party being sued.) The complaint is a written statement of the plaintiff's claim or cause of action. In it, the plaintiff states his or her version of the facts-- what the defendant allegedly did--and asks for relief or damages.

Answer
The answer is the defendant's written response to the complaint. In the answer, the defendant admits or denies each of the facts contained in the plaintiff's complaint and gives any reasons the plaintiff should not win. The defendant also pleads any affirmative defense (anything that would prevent or bar the plaintiff's suit). The statute of limitations, how long a person has to file a lawsuit, is an example of an affirmative defense. If the plaintiff's suit was not filed during the time period set by law, the defendant would plead the affirmative defense of the statute of limitations in his or her answer. If the defendant failed to plead the statute of limitations, that defense would be waived, meaning the defendant would not be able to raise the defense later in the suit.

Counterclaim
If the defendant believes that he or she is the injured party, he or she files a counterclaim and asks for damages. For example, if the plaintiff sues you for damages resulting from an automobile accident, you would file a counterclaim against the plaintiff if you think the plaintiff was the one at fault in the accident.

Reply to a Counterclaim
If the defendant files a counterclaim, the plaintiff is required to file a reply to the counterclaim.

Amended Pleadings
The court can give either party permission to file an amended pleading.

Pre-Trial Motions
A motion is a written application asking the judge to make a ruling or order on a legal issue. Motions to dismiss and motions for summary judgment are two common pre-trial motions. By filing a motion to dismiss, the defendant requests the court to dismiss the lawsuit because the plaintiff is not entitled to any legal relief. Either party can file a motion for summary judgment. The motion requests the court to decide the case on the merits prior to trial because there are no disputed facts.

Motions after Trial

The losing party can file a motion for a new trial, claiming there were legal errors in the trial that was held. The judge can grant or deny the motion in his or her discretion. The losing party can also file a motion for judgment notwithstanding the verdict after the jury returns a verdict. This motion claims that the evidence does not support the jury's verdict and asks the judge to rule for the losing party despite the jury's verdict for the other party. The judge has the sole discretion to grant or deny a motion for judgment notwithstanding the verdict.

onday, December 20, 2010

Legal Procedures 25: Kinds of pleadings and motions

Note: Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases. Kinds of pleadings (Rules 6, 7 and 8 of the Rules of Court) 1. Complaint - the written statement of a plaintiffs cause of action; the names and residences of the plaintiff and defendant must be stated in the complaint. 2. Answer - specific denials of allegations of the complaint, or a statement of new facts preventing recovery by the plaintiff 3. Counterclaim - any claim which a defending party may have against an opposing party (this may either be compulsory or permissive) 4. Crossclaim - a claim by one party against a co-party arising out of a transaction or occurrence that is the subject matter of the original suit, or of a counterclaim 5. Reply - a denial of new matters stated in the answer (if no reply is filed, the new matters are deemed controverted) 6. Third party complaint - a claim filed by the defendant with the permission of the court against a person who is not a party in the lawsuit (called the third party defendant) for contribution, indemnity, subrogation, etc. Kinds of motions (Rules 6, 7 and 8 of the Rules of Court) 1. Motion for bill of particulars - a request by a party for a clearer and more specific statement of allegations made by the opposing party, to enable him to prepare his responsive pleading or to prepare for trial. It must point out defects complained of and the details desired. 2. Motion to dismiss - a move by the defendant to dismiss the suit against him based on grounds like the lack of jurisdiction, no cause of action, etc. 3. Motion for intervention - made by a person who has a legal interest:
(a) in the matter in litigation; (b) in the success of either party; (c) an interest against both; or (d) who will be adversely affected by distribution or disposition of property in the custody of the court or an officer thereof.

4. Motion for judgment on the pleadings - made by the plaintiff for the court to render a decision based solely on the pleadings because the defendants answer does not deny the allegations in the complaint, except damages (this is not allowed for legal separation or annulment cases). 5. Motion for summary judgment - made by any party for the court to render a decision based on the pleadings (complaint, answer, etc), affidavits, stipulations, and admissions, in cases like recovery of debts, etc. Notes: 1. Service of a motion on an adverse party should generally be done as to ensure its receipt at least three days before the hearing. Motion day generally is Friday; some courts schedule hearings on any day. If you are a new lawyer, always ask the court staff if the court has a specific motion day. 2. Based on the omnibus motion rule, a motion shall include all objections then available; if not included, they are deemed waived, except lack of jurisdiction over the subject matter, litis pendentia, res judicata, and prescription. 3. In a motion to reset a hearing (after the pre-trial conference), the proper fee must be paid. 4. Motions for postponements due to illness of a party or counsel must be accompanied by affidavits or sworn certification. 5. Trial lawyers sometimes say talo sa motions, panalo sa kaso. The proceedings in a court case can sometimes be like a roller coaster ride. In one hearing, there may be good results (the judge grants the motion, or the presentation of a witness goes well). But in another hearing, the results may be the opposite. This is one reason why lawyers are not allowed by the ethics of the profession to guarantee to the client the successful outcome of a case. 6. Compared to civil cases, there are a lesser number of pleadings in criminal and labor cases. This is why some lawyers prefer handling only criminal or labor cases.

Posted by Atty. Gerry T. Galacio at Monday, December 20, 2010

Cause of action
From Wikipedia, the free encyclopedia Jump to: navigation, search

This article does not cite any references or sources. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. (January
2008)

Civil procedure in the United States

Federal Rules of Civil Procedure Doctrines of civil procedure Jurisdiction o Subject-matter jurisdiction o Diversity jurisdiction o Personal jurisdiction o Removal jurisdiction Venue o Change of venue o Forum non conveniens Pleadings and motions o Service of process o Complaint Cause of action Case Information Statement Class action Class Action Fairness Act of 2005 o Demurrer o Answer Affirmative defense o Reply o Counterclaim o Crossclaim o Joinder Indispensable party o Impleader o Interpleader o Intervention Pre-trial procedure o Discovery o Initial Conference o Interrogatories o Depositions o Request for Admissions o Request for production Resolution without trial o Default judgment o Summary judgment o Voluntary dismissal o Involuntary dismissal

Settlement Parties

Trial
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Plaintiff Defendant

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Pro Se Jury Voir dire Burden of proof Judgment Judgment as a matter of law (JMOL) Renewed JMOL (JNOV) Motion to set aside judgment New trial Remedy Injunction Damages Attorney's fees American rule English rule Declaratory judgment Mandamus Certiorari
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Appeal
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In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit (such as breach of contract, battery, or false imprisonment). The legal document which carries a claim is often called a Statement of Claim in English law, a Complaint in U.S. federal practice and in many U.S. states. It can be any communication notifying the party to whom it is addressed of an alleged fault which resulted in damages from which it originates, often expressed in amount of money the receiving party should pay/reimburse. To pursue a cause of action, a plaintiff pleads or alleges facts in a complaint, the pleading that initiates a lawsuit. A cause of action generally encompasses both the legal theory (the legal wrong the plaintiff claims to have suffered) and the remedy (the relief a court is asked to grant). Often the facts or circumstances that entitle a person to seek judicial relief may create multiple causes of action. Although it is fairly straight forward to file a Statement of Claim in most jurisdictions, if it is not done properly, then the filing party may lose his case due to simple technicalities. There are a number of specific causes of action, including: contract-based actions; statutory causes of action; torts such as assault, battery, invasion of privacy, fraud, slander, negligence,

intentional infliction of emotional distress; and suits in equity such as unjust enrichment and quantum meruit. The points a plaintiff must prove to win a given type of case are called the "elements" of that cause of action. For example, for a claim of negligence, the elements are: the (existence of a) duty, breach (of that duty), proximate cause (by that breach), and damages. If a complaint does not allege facts sufficient to support every element of a claim, the court, upon motion by the opposing party, may dismiss the complaint for failure to state a claim for which relief can be granted. The defendant to a cause of action must file an "Answer" to the complaint in which the claims can be admitted, denied, or insufficient information to form a response. The answer may also contain counterclaims in which the "Counterclaim Plaintiff" states its own causes of action. Finally, the answer may contain affirmative defenses. Most defenses must be raised at the first possible opportunity either in the answer or by motion or are deemed waived. A few defenses, in particular a court's lack of subject matter jurisdiction, need not be plead and may be raised at any time.

Description
This section is from the book "Popular Law Library Vol4 Torts, Damages, Domestic Relations", by Albert H. Putney. Also available from Amazon: Popular Law-Dictionary.

Section 55. Requisites In An Action Of Deceit

There are five necessary requisites in an action for deceit. A failure to prove any one of the following five elements will be fatal to the plaintiff's cause in an action of this character: (1) There must be a misrepresentation of material fact: (2) The defendant (in the action for deceit) must have known the statements made to be false: (3) The plaintiff (in the action for deceit) must not have known the statements made to be false, but must have believed them to be true: 1 Fraud is a term of very wide application and has been so carelessly used by writers and judges as to render the exact meaning of the term very indefinite. Fraud is divided into actual fraud and constructive fraud. Actions of deceit would generally fall under the former division. Some definitions of fraud which have been given are as follows: "Actual or positive fraud consists in deception, intentionally practiced to induce another to part with property or to surrender some legal right, and which accom-Jhshes the end designed." Judd vs. Weber, 55 Conn., 267, 277; 4th Atl., 40. "It may be safely averred, that all deceitful practices in depriving or endeavoring to deprive another of his known right by means of some artful device or plan contrary to the plain rules of common honesty, is fraud." Mitchell vs. Kintzer, 5 Pa. St., 216, 219; 87 Am. Dec, 408.

(4) The defendant must have made the statement with the intention of having it acted upon: and (5) The plaintiff must have actually acted upon the statement made by the defendant, and as a result been damaged thereby.

Locating the Law 4th Edition It is not always necessary to think of words to fit each TARP
category. However, an analysis of the facts with TARP will suggest alternative ways in which the problem can be researched. Use your imagination. Keep in mind that in situations where the legal issue is not obvious, identifying the legal issue may constitute giving legal advice (see chapter 6 for a fuller

T=THING or subject matter/place or property. Examples: a divorce, a contested will, a dog bite A=Cause of ACTION or ground of defense. Examples: breach of contract, mistaken identity R=RELIEF sought/purpose of lawsuit. Examples: damages, injunction P=PERSONS or PARTIES involved/their relationship to each other. Examples: husband-wife, employer-employee, landlord-tenant Many Legal Researchers Use A Systematic Approach Called The TARP Method To Analyze Fact Situations
1: