Mar 25, 2015

The Purpose of a Lawsuit

A lawsuit is a means for someone to obtain compensation for an injury caused by another party.  

The injured party who brings a lawsuit is called a “plaintiff,” and the party whom the plaintiff sues is called the “defendant.”  The plaintiff or defendant may be a human being or a legal entity capable of being sued (e.g. a corporation, government body, etc.).

Not every injury or “wrong” which a person or legal entity suffers is a proper ground for a lawsuit.

Lawsuits may be filed for any reason, but will be dismissed unless the suit alleges an injury which the law recognizes as an injury.  A stranger simply commenting that they did not like your coat is not a suitable basis for a lawsuit.  A legally recognized injury is called a “cause of action,” and any suit must have a proper cause of action or the suit will be dismissed.  A cause of action may arise from a statute or from the Federal or Massachusetts Constitution.

Types of relief

A plaintiff may ask for monetary compensation (called “damages”) or for a Court Order to do or refrain from doing something (called an “injunction”).  A plaintiff would seek an injunction to stop construction on a nearby property, and damages if he or she was injured in a car crash.

The Role of the Judge and Lawyers

The Judge

The Judge is an unbiased arbiter of the lawsuit.  He oversees the case, rules on motions by the various parties, admits or excludes evidence at trial, and is the sole interpreter of the laws that pertain to the case.

If a party requests a jury trial, then the Judge does NOT determine facts – that role is reserved exclusively for the jury.  If neither party requests a jury, then the Judge also determines facts.  Such trials are known as “bench trials.”

The Lawyers

The lawyers represent the interests of their clients.  They have an ethical duty to their client to provide zealous advocacy, but are constrained by their ethical duties of candor to the Court.  Lawyers cannot knowingly submit false documents or call a witness whom they know will commit perjury on the stand.

A party is not required to have a lawyer – they can represent themselves in court.  Such parties are said to be “pro se.”  A pro se litigant is held to the same standards as a lawyer, regardless of the litigant’s legal education, if any.


The Complaint is the first document filed in a lawsuit.  

The Complaint is filed by the plaintiff, and it lays out the injury the plaintiff has suffered, the defendant or defendants who caused the injury, the legal basis for recovery (cause of action), and the type of compensation the plaintiff seeks.

The Complaint is filed with the Court.  

After filing the Complaint, it must then be “served” on the defendant(s).  This “service of process” is a specific means of notifying the defendant that they have been sued.

The plaintiff must make sure that he sues the correct defendant(s).  

Identifying the correct defendant or defendants may not be as easy as it would seem.  A plaintiff may think a businessman owes him money, for example, when in fact it is the businessman’s corporation that owes the money.  The plaintiff may sue multiple defendants if the plaintiff’s injury was caused by more than one party.


The plaintiff must be careful to sue in the appropriate Court, a concept known as “venue.”  There is a federal court system and state court systems, each of which have many different types of courts in many different locations.  Massachusetts has a variety of different types of courts, most of which are arranged geographically throughout the state.  Certain types of cases must be filed in special courts.  Any suit contesting a will, for example, must be filed in Probate Court.


Some causes of action have certain requirements which must be met before a complaint may be filed in state court.  Employment discrimination suits, for example, require that a plaintiff file with the Massachusetts Commission Against Discrimination within 300 days of the discrimination before he or she can file a suit in state court.

Statutes of limitations and statutes of repose

Many causes of action have a “statute of limitations,” which means that the case must be filed within a certain amount of time after the plaintiff learns of their injury.  Some causes of action have a “statute of repose,” which means that the case must be filed within a certain amount of time after the plaintiff’s injury occurs, regardless of when plaintiff learned of the injury.


Sometimes, a plaintiff may ask a court to put an “attachment” on a defendant’s property, which is typically done when the complaint is filed.  This is a judicial hold on the property, which prevents the defendant from transferring the title of the property.  Attachments are used when there is a risk that the defendant will liquidate his assets to avoid having to pay any legal judgments.

A Complaint can be amended, but it is best to get it right the first time!


The Answer is the defendant’s response to the complaint.  

A defendant has 20 days after being properly served with the Complaint to either file an Answer or seek a continuance.  Most defendants ask for a continuance, and they are almost always granted.

For each allegation in the Complaint, the defendant must admit, deny, state that they do not know, or state that no response is required because it is a conclusion of law.  

Defendants will typically admit to facts that are not at issue in the lawsuit, such as the name of a corporation and its place of business.  Defendants will usually deny facts and allegations which are in contention and which give rise to the plaintiff’s cause of action.

A defendant may raise an “affirmative defense.”  

An affirmative defense is when the defendant admits to performing the actions alleged by the plaintiff, but the plaintiff is barred by law from recovering anything from defendant.  A classic affirmative defense is self defense.  The defendant admits to using physical force against the plaintiff, but alleges that this force was permitted by law under the circumstances and thus, plaintiff is not entitled to recover.


A defendant may make a “counterclaim,” which is when a defendant files a claim against the plaintiff in the same suit.  Counterclaims may arise anytime there is a dispute regarding facts or fault.  In a motor vehicle accident, a defendant may file a counterclaim against the plaintiff alleging that it was actually the plaintiff who caused the accident.  Through counterclaims, defendants may successfully walk away from a lawsuit with money.


A defendant may also file a “crossclaim,” which is a claim filed by one defendant against another defendant.  An example might be where a homeowner sues a contractor and general contractor, and the contractor in turn sues the general contractor regarding the same suit.


After an Answer is filed, the Court will issue a Scheduling Order, which provides for crucial dates, such as the close of Discovery and the date of the Trial.  These dates are often pushed back for various reasons.


Discovery is the most time consuming and (typically) costly part of a case, and the most crucial.  

Discovery occurs when each party gathers information about the case, both from the other parties as well as from third parties.  Discovery allows lawyers to prepare for trial and begin posturing to settle the case.  Discovery is technically NOT required in Massachusetts courts, but in virtually every lawsuit the parties engage in discovery.

Methods of discovery


In Massachusetts, each party may ask the other party 30 written questions, which are called “interrogatories.”  The party being served interrogatories then has 45 days to respond, though an extension is almost always granted.

Document requests

Parties may request any documents from other parties that are relevant to the case.


A party is allowed to meet with other parties and ask them questions that are relevant to the case.  These are called “depositions,” and need not be done in Court – they may be conducted anywhere, and are usually held in a lawyer’s office.  Lawyers for all parties are present and are they are the ones who conduct the deposition.  The witness is under oath and must answer all questions posed to them, unless their lawyer has a suitable objection.  A stenographer is also present, and the witness’ answers may be used at trial as testimony.

Physical exams

An independent medical examination may be conducted when the physical or mental condition of a party is in controversy.  Examinations may only be conducted when ordered by a Court.


Statements may be submitted to other parties, who must then admit or deny the truth of those statements.  These are called “admissions.”  These answers must come from the party directly – lawyers may NOT answer admissions.

Scope of discovery

The scope of discovery is limited to any measure which is reasonably calculated to lead to admissible evidence.

Discovery disputes

Parties often do not agree on what information the other parties should be entitled to see, and these disagreements may lead to discovery disputes.  Courts HATE discovery disputes.  These disputes can become very contentious, protracted, and expensive, and Courts view them as a waste of Court resources.

If the parties cannot work out a discovery dispute on their own, the Court may become involved.  A party can file a “Motion to Compel,” which asks the Court for an Order ordering another party to produce certain information, usually documents, or to have a witness appear for a deposition.  If the party continues to withhold this information, the Court may levy “sanctions” against the party.  Sanctions may range from a monetary fine (against the party at fault) to having a claim or the entire suit thrown out (if the plaintiff is in violation), or granting the relief sought in the complaint (if the defendant is in violation).

Dispositive Motions

After Discovery has closed, parties may file motions to have the suit decided in their favor.  

These are called “dispositive motions” because, if granted, the individual claims or the entire lawsuit is over.  If any issues of material fact remain, then the case will proceed on to trial.  If no issues of fact remain, the judge will apply the law to the undisputed facts of the case and rule for a party if they are clearly entitled to judgment.


The purpose of a trial is to determine the facts.  

If no facts are in dispute, a trial is unnecessary, and the court may resolve the lawsuit via a dispositive motion (see above).

A party must request a jury. (see above)

Jury selection

Juries have between 6 and 12 jurors, depending on the Court where the case is being tried.  Lawyers are entitled to very basic information about potential jurors.  Jurors may be dismissed for cause (e.g. they personally know a party).  Additionally, each side has 4 “peremptory challenges” for a 12 person jury, which allows them to dismiss a potential juror or for no reason (except race, gender, ethnic group or color, or religion).

Opening statement

Each party gives an opening statement, which is an introduction to the case and the points each party will raise.  The plaintiff gives the first opening statement.

Plaintiff’s direct

The plaintiff presents his or her entire case.

Defendant’s direct

The defendant then presents his or her entire case.


Each party gives a closing summary of its case.  The defendant gives the first closing.

Jury instructions

The judge will instruct the jury regarding the law that they should apply when deciding the facts of the case and which party wins.  The JUDGE alone instructs jurors on the law – lawyers are NOT allowed to comment to the jury on the law at any point in the trial.


The jury will then be sent into a closed room to deliberate.  Jurors will decide whether the plaintiff has proven his case by a preponderance of the evidence.  Jurors may send notes to the Judge to ask questions about the law.


The “verdict” is the jury’s resolution of disputes of facts and decision about whether the plaintiff proved his or her case.  When the jury has reached a verdict, they will return to the courtroom and the jury foreman will read the verdict.

Judgment – Somebody Wins or Loses

After the jury delivers its verdict, the Judge will enter an Order of Judgment for the prevailing party.  The Order of Judgment is the Court Order that gives effect to the verdict.


The losing party has 30 days to file an appeal.  Only issues of law may be appealed – the facts as determined by the jury are NOT revisited on appeal.


30 days after the Order of Judgment – or after a party’s appeals have ended – the plaintiff may begin “execution” to satisfy the Order of Judgment.  

Execution is when the plaintiff enforces the Order of Judgment.  This is done by a “collection” of assets to satisfy a monetary award.  There are various means of collection, ranging from the opposing party simply writing a check to arranging for a Sheriff to seize the assets of the defendant.

The Order of Judgment can only be satisfied if the defendant has enough assets.  If the defendant does not have sufficient assets, the plaintiff will not be able to collect on the Order of Judgment.  Because of this, the plaintiff should strongly consider attaching when the Complaint is filed! (see above)