The Civil Process

The civil process is invoked when parties have a dispute over a non-criminal matter that cannot be resolved without resorting to the legal process. The complaining party is the plaintiff and the party against whom a claim is brought is the defendant. Depending on the claim being made, other parties may be brought into the litigation through various procedural approaches by the litigants. There are detailed rules of procedure and evidence that also apply in civil matters and the failure to follow them can have serious repercussions for the non-compliant party. Like the criminal process, licensed attorneys are the persons in the best position to assist litigants with these types of matters and potential litigants always should consider hiring counsel to represent their respective interests.

1. Summons and Complaint. The legal process begins with the filing of a summons and complaint and the service of that complaint on the opposing party. Service on a party is typically handled by the sheriff of the county in which the complaint is filed, although there are a number of ways to perfect legal service. The summons is issued by the clerk of court and provides a certain amount of time within which an answer or other responsive pleading is required to be filed.

2. Answer and Counterclaim. The formal response to a complaint is called an answer, and parties who are served with a complaint may elect to file a counterclaims, cross-claims or third-party claims against other parties. An answer is required to be filed within thirty days of the complaint being served and the failure to do so in a timely manner is called a default.

3. Default. The failure to answer or otherwise respond to a properly served complaint within 30 days of service is called a default and causes the party who has been served to lose the right to contest the matters in the complaint, which are then presumed to be true. A default may be opened as a matter of right within 45 days of service and thereafter may only be opened with the permission of the court. It is critical that parties respond to complaints and other pleadings in a timely manner or they risk losing their right to contest the matters raised in those pleadings.

4. Affirmative Defenses. The laws of civil procedure require certain defenses to be proven by Defendants and to be raised in their answers. The failure to raise these affirmative defenses will preclude defendants from being able to offer them at trial. The burden of proving affirmative defenses rests on the defendants who raise them.

5. Other Pleadings. In addition to the complaint, the answer, counterclaims, cross-claims and third party claims, there are various motions and requests that parties are either required or allowed to file during the litigation process. The type and content of motions and other pleadings depends on the particular facts of each case.

6. Discovery. Discovery is a process which the parties in a lawsuit engage in to determine what evidence each of them might present at trial. There are specific procedural rules governing discovery which are contained in the Georgia Civil Practice Act. The purpose of discovery is to allow the parties to understand the evidence that the other party might be presenting at trial. Discovery takes on a number of different forms: (i) interrogatories, which are written questions that must be answered; (ii) requests for admissions, which are matters that one party may ask another to admit as true; (iii) requests for production of documents and things, which requires parties to provide certain information and evidence that is under their respective control; and (iv) depositions, which provide an opportunity to require persons to answer questions under oath.

7. Compromise and Settlement. Compromise and settlement is a voluntary resolution of claims by parties to litigation and requires the cooperation of all of the parties involved in the dispute. Most litigation is settled by the parties in order to avoid the uncertainty and expense of further litigation and parties often find that an agreement they can reach among themselves to resolve their differences is better than having an result imposed upon them by a trial judge or jury. It is said that a good settlement is one that none of the parties finds truly satisfactory, especially since settlement requires all of the parties involved to give-up something that they want in order to reach a result that all of them can accept.

8. Motions. Parties wishing to limit the matters to be heard by the court or seeking specific determinations with respect to a particular issue may file a motion for relief. The opposing party has 30 days within which to respond to any motion unless that time is shortened by the court and parties may request oral argument on any motion by setting it down for a hearing.

9. Summary Judgment. Summary judgment is a procedure by which courts dispose of matters where there is no dispute as to any of the material facts and one of the parties is entitled to judgment as a matter of law. The purpose of summary judgment is to dispose of matters which are not entitled to be heard on their merits because the parties agree on the facts and courts apply the law to the undisputed facts to reach a decision.