Litigation – Anatomy of a Lawsuit

There are many types of litigation and each type has it’s own pattern. However, as a general rule, theere is an aggrieved party who initiates the litigation (usually called a Plaintiff or Petitioner). Plaintiffs generally claim he (or she or it) was entitled to something, they didn’t get what they were entitled to, and are asking the Court to do something about it.

Pleadings Stage

Most lawsuits begin when a Complaint (sometimes called a Petition) is filed in Court. The initiating document identifies the parties and almost always states why the Court has jurisdiction over the case. Jurisdiction must be evaluated on two levels: subject matter jurisdiction, meaning the case is one the Court has authority to decide, and personal jursdiction, meaning the Court has authority over the parties. A seperate concept known as venue relates to the location of the lawsuit (e.g., why it was filed in one county versus another county).

The Complaint then usually recites the facts considered relevant for the claim. For example, if the claim is for breach of contract, it might go something like this: Plaintiff X agreed to manufature Widgets for Defendant Y for an agreed upon price. Plaintiff manufactured the Widgets and delivered them to Defendant, but Defendant failed to pay the amount due.

If the claim was based on negligence (e.g., most personal injury cases), the facts might go something like this: Plaintiff X was driving on I-75 on thus and such a day when Defendant Y rear-ended Plaintiff, causing Plaintiff’s injuries. In a negligence case, there must be a duty to act (or not act), a breach of that duty and damages caused by the breach. Although malpractice cases are more complicated, they follow the same general pattern with the difference being that expert testimony is required to establish what constitutes the standard of care (duty) and whether the defendant breached the standard of care.

Divorce cases are frequently no-fault cases, so the issues involve aech party’s right to be divorced, followed by claims regarding entitlement to alimony, child support and a portion of the marital estate.

Guardianship and conservatorship cases involve a determination regarding the proposed ward’s legal capacity, usually his or her ability to make and communicate significant decisions, and it the proposed ward lacks capacity, who should be appointed to help the ward.

Probate, trust and other fiduciary cases usually involve either a dispute regarding the creation of the relationship (e.g., the Will-maker was unduly influenced or lacked capacity ato make a Will), or the breach of a duty the fiduciary owes to other persons such as beneficiaries.

Once a Complaint is filed, it must be served on the Defendants. Sometimes service is allowed by mail, but usually personal service is required either by a sheriff’s deputy or another person authorized to deliver the Complaint and summons. The summons requires the Defendant to answer the Complaint within a period of time, usually 30 days, or suffer default.

In most cases, the Defendant files and answer and alleges defenses. For example, in the contract example above, the Defendant might allege that the Widgets were defective so no payment is owed, or that all amounts due were paid in full. In other cases, special pleadings are filed, such as a counter-claim where the Defendant might allege the Plaintiff is liable to the Defendent, or to add another party. In some cases, the Defendant might allege the Court has no jurisdiction to hear the case. And in certain circumstances, the Defendant might allege the case was filed in the wrong court and seek transfer to another court.


After all necessary parties are joined, most cases include a discovery phase. The purpose of discovery is to inform the parties so they can make better decisions regarding whether to settle, the relative strength of their positions, where to find other relevant information and so forth. In federal cases certain intial discovery is required. For example, Rule 26(1)(A) requires the following initial disclosures:

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

(ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

(iii) a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and

(iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

Thereafter, formal discovery may take the form of depositions, interrogatories (written questions), requests to produce, and requests to admit. Informal discovery is also done so long as no ethical rules are violated. For example, an opposing party may search for information about you in the internet, but it is unethical for an attorney to directly or indirectly contact someone represented by counsel (Note: be careful what you post on social media; it might end up as an exhibit at trial).


Although some motions may be filed before discovery is complete, others are typically filed after discovery is closed. This is when motions for summary judgment are filed. Also, parties may file motions in limine to exclude certain evidence from being presented at trial. In most civil cases, the Court will hold a pre-trial conference and either rule on pending motions before or at the pre-trial conference.


Most cases settle, but if they don’t then a trial will be scheduled. In many cases the parties have a right to a jury, but in others, such as cases involving equity, they may not. A trial is where your case is presented to a case-finder, either the judge or a jury, who decides which party is right. Subject to the Rules of Evidence, witnesses, documents and other evidence are presented to support each party’s claims and defenses. Attorneys present argument regarding what the evidence means, tying it all together. Ultimately though, what the jury does with that evidence in a jury room is often a mystery. Avoiding the uncertainty of jury deliberations, as well as the avoidane of additional legal expense, is often a motivator to settle the case.


In every case, there is usually (at least) one party who is disappointed. That party is entitled to appeal. It is critical that you understand the rules relating to appeals from the Court where your case was tried. For example, in Georgia the appeal from a non-Article 6 probate court is to Superior Court, while appeal from an Article 6 probate court is to the Court of Appeals. Appeals are often dismissed is filed incorrectly or if deadlines pass.


Start Here

Enter your name and email address to keep up with what’s new at EZ Elder Law!

  • This field is for validation purposes and should be left unchanged.