2 What Is a Lawsuit?

Celia hated to take a client to court, but the client had really left her no choice. Against her better judgment, Celia had gone ahead and ordered the client’s items for installation in the client’s new offices, without requiring the client to first pay Celia’s retainer. The client clearly had the means to pay, and so Celia had decided to make an exception. Besides, Celia knew that if she pleased this new client, she’d likely get several more good clients out of the work. And indeed, Celia’s design and installation looked spectacular and drew rave reviews. But the client had then ignored Celia’s invoices and refused to take Celia’s calls, while interest and late fees piled up on Celia’s orders. Celia’s unpaid suppliers even began threatening not to do any more business with her. Celia absolutely rued going to court but had no choice. How else was she going to save her business?

Definition

A lawsuit is a civil court action between private parties to adjudicate private rights and interests. Break that down. A lawsuit is in a civil court, not a criminal court. A public prosecutor brings a criminal charge against a private person or entity on behalf of the government, seeking to punish or otherwise hold the defendant accountable. By contrast, a private party brings a civil lawsuit to establish some private right to relief. In a criminal case, the government is using its own courts to enforce laws against the public. In a civil lawsuit, private parties are using the government’s courts to enforce or adjust rights between themselves. In certain instances, you may sue a government official or agency in a civil lawsuit, but when you do so, it’s generally to establish and enforce your individual rights and interests. You may bring a lawsuit if you have a substantial right or interest to enforce in a justiciable dispute with another party.

Courts

Governments establish courts in the judicial branch of government, beside the executive and legislature branches, to decide disputes. Courts don’t make laws like the legislature or carry them out like the executive but instead interpret and apply them to decide disputes between parties. You generally cannot bring a lawsuit unless you have a substantial interest of your own to enforce. Courts have no power to just give their opinion. They must instead wait for a party to bring a dispute to them, in which the party has a substantial interest. Courts also have no enforcement powers of their own. While courts can hold parties in contempt, fine and jail parties, and order property seized, among other enforcement actions, courts depend on the executive branch to enforce their orders. Courts also depend on the legislative branch to approve funds for their operations. Courts are thus generally reluctant to do anything that exceeds their authority because they have no means of their own to fund their operation or enforce their rulings. Bringing a lawsuit can be a powerful way to enforce your rights. Use your access to the courts wisely.

Judges

Judges are public officials trained, appointed or elected, and compensated to administer and in many cases decide court disputes. Judges generally have a law degree and license. They may also have to practice law for five years or another period before qualifying under state law for their judicial position. Judges who must stand for election are theoretically accountable to the local citizenry for their decisions, although once elected, incumbent judges have a very high likelihood of reelection. Judges whom the executive appoints are theoretically accountable to that executive and, through the executive, to the citizenry, although once appointed, a judge is very hard to remove. Judges are also accountable to judicial tenure commissions to comply with ethics rules. And appellate courts reverse erroneous judicial decisions. Otherwise, judges have little public accountability, while having substantial authority. Respect your judge’s authority. They expect it and have convincing ways of making you show it. Disrespect a judge at your peril. You may find yourself losing your case, fined, or even in jail overnight.

Juries

Americans accessing the nation’s courts have a right to jury trial only in certain cases and under certain circumstances. For instance, juries do not decide family law cases involving divorce and child custody, probate cases involving wills and trusts, or cases for civil injunctions, accounting, or similar equitable relief. On the other hand, juries are generally available for civil cases involving claims for damages such as a personal-injury case or business dispute. But in those cases, you must timely request a jury and, if applicable, pay the jury fee. If you fail to do so, a judge will instead decide your case without a jury. If all parties in a jury-triable case decline to request a jury, then the judge will decide the case. If one party requests a jury, then a jury will decide the case even if the other parties oppose it. Jury-tried cases involve different considerations than judge-tried cases. See the later chapter on juries. Consult your attorney over whether you have a right to jury trial and, if so, should invoke it or instead let the judge decide. You may win or lose your case based on your decision.

Parties

Because courts only decide disputes, the parties in a lawsuit must be on one side or the other. Each dispute must have at least two sides, one side pitted against the other. The party bringing the lawsuit is the plaintiff, while the party answering the lawsuit is the defendant. A lawsuit may have more than one plaintiff and more than one defendant, provided that the multiple plaintiffs or defendants have similar interests related to the same claims, transactions, or occurrences. Two business partners, for instance, may both be plaintiffs in a lawsuit against two departing partners, both defendants, whom they claim stole their proprietary information. Some lawsuits have a third side, beyond the plaintiff and the defendant. For example, a defendant may sue a third party, arguing that the third party should pay the plaintiff’s claim against the defendant. If, for instance, a guest sues a homeowner for a slip-and-fall injury on the premises, the homeowner may sue the homeowner’s insurer as a third party in the same lawsuit, to indemnify and pay for the guest’s claim. Consult your attorney over what parties might be appropriate to join in your case, on what claims and to enforce which rights. 

Claims

A plaintiff bringing a lawsuit must generally assert a claim. A claim is a recognized legal theory for relief to enforce a substantial interest or right. You can’t just show up in court demanding relief without a recognized legal claim to support it. A plaintiff must have at least one valid legal claim to bring a lawsuit. You may assert several related and alternative potential claims in your lawsuit, but at least one of them must be a valid claim that the court has authority to enforce. For example, if you purchase a new home and find that it has substantial defects in it, you might bring a claim against the builder for breach of contract. You might in addition bring claims against the builder for negligence in construction of the home, breach of warranties made in the home’s sale, and fraud or misrepresentation in concealing the home’s defects. If at least one of those four alternative claims is valid, then your lawsuit may proceed even if the court dismisses the other claims. Consult your attorney for the claims available to you in your lawsuit. Asserting multiple claims can ensure that at least one claim has law and facts supporting it. 

Defenses

Just because a plaintiff asserts a valid legal claim does not mean that the plaintiff will win the lawsuit and recover against the defendant. A defendant may assert affirmative defenses to the claims that the plaintiff makes in the lawsuit. A defense is an authoritative response capable of defeating the claim. If you face a lawsuit that pleads a valid legal claim, your attorney may plead multiple defenses to the lawsuit. For instance, in the above claim alleging defects in a new home, the defendant builder may allege as defenses that the plaintiff waited too long to bring the claim, brought the claim in the wrong court, or waived the defects in a walk-through inspection. If the court finds one or more of the defenses to be legally valid and established by the evidence, then the plaintiff will have lost the case. Consult your attorney to see what defenses you may be able to raise and prove to defeat the lawsuit that you face, or what defenses the party whom you are suing may raise to defeat your lawsuit. If you don’t plead defenses in your answer to the plaintiff’s complaint, you may lose those defenses.

Law

Courts thus rely on legally recognized claims and defenses to determine the rights and responsibilities of the parties who bring disputes before them. The law on which your claims or defenses may rely has several positive sources. Parties may rely on legislative statutes such as a civil-rights act authorizing an employee’s discrimination claim against an employer. Parties may also rely on constitutional provisions such as the Bill of Rights guaranteeing freedom of speech and prohibiting unreasonable searches and seizures. Parties sometimes rely on administrative regulations such as an environmental-protection rule limiting the use of certain chemicals. Parties may also rely on prior court decisions taken to represent the common law on subjects like contracts, torts, and property rights. Courts also follow procedural laws and rules on pleading, discovery rights, subpoenas for documents and testimony, and similar practices to ensure fundamental fairness. Consult your attorney as to the law on which your claims or defenses rely. 

Justice

While courts typically rely for their decisions on constitutions, statutes, regulations, procedural rules, and previously decided cases, natural law concepts of justice, equity, and morality undergird those laws. You may not know the specific statute or case law on which your claim or defense relies. But you’ll likely have an intuitive sense of the justice of your position. Indeed, if you cannot articulate from a natural and common-sense perspective why you should prevail in your lawsuit, then you may need to rethink your position. Jurors don’t generally know the law, either. The judge will tell them the law, but jurors tend to make their decision based on their own intuitive sense of right and wrong, within the bounds of the law. And so do judges. If the position you take doesn’t make sense for everyone else, too, then you might not have a sound and just basis for proceeding. Learn the law from your attorney. Be sure that you have a legally recognized claim or defense if your intent is to assert it. But continue to think of the justice of your position. 

Resolution

Importantly, a lawsuit seeks to impose a resolution that restores peace, order, and equilibrium, balancing the rights of the parties in a way that both they and society will accept. Lawsuits ought not beget more lawsuits. Judges can be relatively sensitive to trying to structure outcomes that the parties will soon if not immediately accept, so as to get on with their lives. Scorched-earth litigation, where one party attempts to utterly vanquish the other party, trammeling upon their every right and interest, is generally unsuccessful. While lawsuits can definitely have winners and losers, many lawsuits resolve on terms that neither party fully appreciates. The inside joke is that every resolution that makes both sides unhappy is a good resolution. Judges don’t necessarily seek compromise. But they often impose resolutions that split differences so that both sides can return home able to live in relative peace with the resolution. Don’t necessarily expect to gain everything you want from your lawsuit. That may happen, but you may instead gain only some of what you want while losing some of what you hoped to retain. Asking a court to decide something for you is giving up the opportunity to decide it for yourself. Be cautious when invoking a court’s power because doing so gives the court power to decide other than you’d like. 

Reflection

What right or interest do you have that has you considering or pursuing a lawsuit? How substantial is that right or interest? Would you be able to do without it, or would its absence seriously affect you? Independent of the law on which your lawsuit would rely, can you articulate its justice, why you are right and the other side is wrong? Who is your opposing party? What did they do or not do that affected your rights and interests? How would you convince someone that what your opposing party did was wrong? Would reasonable people agree with you? Do you think that a judge should decide your case or instead a jury? Do you know the legal claims on which your lawsuit would rely? What defenses would your opposing party likely raise? How strong or weak would those defenses be in the eyes of an independent decision maker? Do your claims rely on law drawn from constitutions, statutes, regulations, or case law? Should your lawsuit be in federal or state court? In what city would the court hearing your case be? How hard or easy will it be for you to get to and from that city for court hearings?

Key Points

• A lawsuit is a legal action to enforce private rights in the civil courts.

• Courts have authority to decide substantial disputes between parties.

• Judges administer court procedures and decide some civil court cases.

• Americans have rights to a jury trial in certain civil cases.

• A lawsuit involves a plaintiff party suing an opposing defendant party.

• A plaintiff must plead one or more recognized legal claims.

• A defendant may plead affirmative defenses to defeat the claims.

• The courts apply law from constitutions, statutes, rules, and cases.

• Your claim or defense should be just, equitable, and moral to prevail.

• A lawsuit seeks to restore peace and order in an acceptable resolution.

Read Chapter 3.