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Anatomy of a Florida Civil Lawsuit – Part One – Pre-Trial

A Brief Description of the Florida Civil Lawsuit Process before Trial

by Philip K. Calandrino – Attorney at Law – Calandrino Law Firm, P.A.

There are three phases to a court case:  Pre-trial, trial, and post-trial. Since almost all civil litigation cases in Florida settle before trial, this article focuses exclusively on the first one. The pre-trial phase of a civil action loosely breaks down into four stages:  Pleading, discovery, summary judgment, and mediation.

The Pleading Stage

In the pleading stage of the case, the plaintiff files its claim in a legal document called a complaint and serves it on the defendant.

The defendant must respond to the complaint within 20 days. Unless there are strong strategic reasons to the contrary, the defendant usually files a motion to dismiss the claim or some other preliminary motion instead of answering. The motion must have some basis in law and it is limited to challenging the complaint as though all of the allegations in it were true. In other words, it is only available where the complaint is defectively stated (e.g., it does not state a valid claim or it was not filed within the time limits imposed by law). If the defendant is successful in its motion, the plaintiff must amend the claim. The process repeats until the plaintiff gets it right. After a number of unsuccessful attempts, the court will dismiss the case with prejudice, meaning the plaintiff cannot re-file the claim.

Once the plaintiff states the claim in such a way that the defendant can no longer challenge its validity, the defendant must file an answer. For each numbered paragraph of the complaint, the answer admits, denies, or states that the defendant is without knowledge and therefore denies the allegation. All items not denied are admitted. The defendant also states affirmative defenses. These are defenses to the claim based on the notion that the facts in the complaint are true, but there is some other reason why the defendant is not liable. If the defendant wants a trial by jury, it must ask for one in the pleading or the right is waived.

Furthermore, if the defendant has claims to bring against the plaintiff, it may do so in a pleading called a counterclaim; or it may bring claims against other defendants in a crossclaim. The plaintiff (or the cross-claimed defendant) then goes through the same process described above as it related to the defendant.

In rare instances, where a defendant is not solely liable for damages to the plaintiff, it can bring in the other responsible party by virtue of a pleading called a third-party complaint. As was the case with the counterclaim, this pleading is subject to being challenged via a motion to dismiss before being answered.

When the pleadings stage finally closes, after all defendants have submitted answers, the case is considered “at issue.” This means it can be set for a trial date as soon as any party requests one.

The Discovery Stage

In the Discovery Stage, the parties learn about the other side’s case and collect information to prove their claim or defense. Because it is easy for a party to use the privilege of discovery to harass the other side and make litigation needlessly expensive, the rules place limits on the process and courts can set further limitations on a party.

This stage usually runs concurrently with the pleading stage, but, for strategic reasons too intricate to discuss here, lawyers may decide to wait until the pleadings stage closes to engage in extensive discovery.

In discovery, the parties use written devices, such as interrogatories (questions), requests for admissions of facts, and requests for the production of documents from the other side. The parties may also take depositions where one gives sworn testimony in response to questions asked by the attorneys in the case. Depositions may be recorded in writing or on videotape and read or played at a later hearing in the case or at trial.

Discovery is not limited to the parties in the case. Each side may ask for someone who is not a party to the case, such as a witness, to produce documents or give deposition testimony.

The Summary Judgment Stage

After the parties have had an opportunity to complete discovery, either side or both sides may move for summary judgment. Summary judgment is granted only where there is no genuine issue of material fact to be proved at trial. In other words, because the court has all the important facts and those facts are either undisputed or the weight of the evidence is so great that they cannot be reasonably disputed, a ruling is entered on one or more of the claims or defenses.

Any issues that remain after summary judgment must go to trial, unless the parties settle.

The Mediation Stage

Courts order the parties to mediate the case before it goes to trial. Often, this proceeding will take place before summary judgment motions are filed and heard by the Court. A private mediator is used as an intermediary. A good mediator will provide honest and objective advice about the case to give the lawyer’s clients a different perspective. It is the mediator’s job to find a way for the parties to compromise on the case to save legal fees and to choose their own result in the case. Approximately 95% of all civil cases are resolved at mediation.

If the parties do not settle at mediation, the next stage, the trial phase, starts.