Lawsuits get a lot of publicity. But, even those in a lawsuit may not know
what is happening. This column will explain the process of a lawsuit in
Florida state (not federal) courts.
The party filing suit is known as the plaintiff or in equitable actions
(such as dissolution of marriage) the party filing is known as the petitioner.
The other party is the defendant or in equitable action, the respondent.
This column will refer to the filing party as the plaintiff and the party
being sued as the defendant.
Before suit is filed, the plaintiff and the plaintiff’s attorney
gather information to support a claim or claims against the defendant.
That process can include interviews, document compilation, expert assessment
and calculations. The attorney may research court decisions and statutes
to determine what claims might be filed and possible defenses. When research
and information compilation is finished, the plaintiff’s attorney
drafts a complaint. The plaintiff will also decide if a jury trial will
be requested. If a jury trial is not requested, the trial will be only
with a judge.
The complaint is a recitation of ultimate facts which meet the requirements
of Florida statutes or case law to state a cause of action against the
defendant. Ultimate facts are not conclusions. The complaint will include
the names of the parties, their status, and facts which support the claim
or claims. A complaint can plead multiple causes of action and those can
even be contradictory. The plaintiff does not have to make a final election
of what claim to pursue until trial.
When the complaint is finished, it is filed with the Clerk of Courts. Claims
for $30,000 or less are filed in County Court. Larger claims are filed
with the Circuit Court. Claims for less than $8,000 are pursued in Small
Claims Court, which has different, expedited and simplified process to
reach trial. A filing fee is paid to the Clerk of Courts with the amount
of the fee based on the relief requested in the complaint. Florida filing
fees range from $100-$400.
After the complaint is filed, the Clerk issues a summons and the plaintiff
must arrange service of the summons and complaint on the defendant. That
is known as service of process. The defendant can be served in person
or by leaving the summons and complaint at the defendant’s residence
with a person residing there who is 15 years of age or older.
The defendant has 20 days to serve a response to the complaint. The defendant
also has a right to demand a jury trial. The response can be an answer,
in which the defendant admits or denies allegations in the complaint.
Response can include affirmative defenses which set up legal avoidances
to claims in the complaint even if the claims are true, such as the statute
of limitations barring a claim not timely filed. Defendant can file a
counterclaim against the plaintiff, which is a lawsuit against the plaintiff
in the same case. The defendant can also file a motion to dismiss if the
defendant believes the complaint fails to properly state a cause of action
or a motion seeking a more definite statement if the defendant is on sure
what the plaintiff is claiming.
As the lawsuit progresses, the parties can file other motions. A motion
generally asks the judge for some temporary or permanent relief short
of trial. Motions can include request the court order the other party
to cooperate, request protection from overreaching effort by the other
party, extensions of time and even judgment without trial if a party believes
it can establish there is no genuine dispute under which the other party
can prevail. One or both parties can even file a motion to amend their
pleadings. The parties schedule a hearing with the judge at which the
Judge listens to arguments by the attorneys and issues an order granting
or denying a motion.
The American trial system presupposes that the parties will present all
relevant evidence for determination of what facts are true and application
of the law to those facts to determine the prevailing party. Plaintiff
and defendant must know everything they can about the case to fulfill
their roles. That is done through a process known as discovery.
Discovery includes depositions. A deposition is not in court, but a witness
is placed under oath and asked questions by the attorneys while a court
reporter makes a record of the proceeding. The parties can also request
production of documents from parties and nonparties, serve written questions
to be answered under oath (known as interrogatories) and even serve a
request that the opponent admit certain facts. The discovery process is
somewhat cumbersome and can take a lot of time.
Once discovery is completed, one or both parties will tell the judge the
case is ready for trial. The judge will issue an order scheduling the
case for a tentative trial period and order the parties to mediation or
Mediation is a process under which a neutral third party attempts to get
the plaintiff and defendant to settle the case. If the parties do not
reach agreement, the case proceeds to trial. Arbitration is a process
under which a neutral third party renders a decision. If the judge order
the parties to arbitration, it is not binding as parties are entitled
to a trial. Because arbitration ordered by a judge is nonbinding, either
party can request a trial de novo if unhappy with the arbitrator’s
decision. If neither party requests a trial de novo, the arbitrator’s
decision becomes a judgment.
Trial is the ultimate end game in a lawsuit. The plaintiff goes first,
calling witnesses and producing evidence that supports the plaintiff’s
claim. The defendant gets to ask questions of all of plaintiff’s
witnesses. When the plaintiff rests, the defendant introduces witnesses
rebutting the plaintiff’s claims, all of which may be cross-examined
by the plaintiff. When the parties are done submitting evidence, the case
is submitted to the jury in a jury trial or for the judge if a non- jury trial.
One of the parties is likely to be unhappy when the trial is over. If unhappy
enough, that party can file an appeal. In some cases, both parties file
appeals. The record is reviewed by an appellate court. No new evidence
is introduced and no new testimony is provided. The attorneys file briefs
with the appellate court outlining errors or in support of the judgment.
The case is ultimately scheduled for oral argument. The attorneys present
their side of the case at oral argument and the appellate judges ask questions.
In Florida, each side has only 20 minutes to present their case at the
appellate hearing. The appellate court then issues an order affirming
or reversing the trial court judgment. Trial courts have one judge. Florida
appellate courts have a panel of three judges.
This process may seem simple, but it is relatively cumbersome and lengthy.
With good trial lawyers charging by the hour, attorney’s fees and
costs for a lawsuit can exceed $100,000. Expense varies from case to case,
but is frequently a lot more than the plaintiff or defendant expected
before getting involved in a lawsuit. For that reason, the parties should
always exhaust settlement effort before a trip to the courthouse.
William G. Morris is the principal of William G. Morris, P.A. William G.
Morris and his firm have represented clients in Collier County for over
30 years. His practice includes litigation and divorce, business law,
estate planning, associations and real estate. The information in this
column is general in nature and not intended as legal advice.