Civil Litigation FAQ

1.  What is the difference between civil and commercial litigation?

Civil litigation encompasses the various lawsuits that occur in the civil law courts, which is comprised of lawsuits between private persons, businesses, or government actors for civil wrongs, disputes, or other instances that give rise to a cause of action.  Specifically, commercial litigation involves business disputes for debtor/creditor claims, creditors’ rights, judgment enforcement, contract disputes, dissolution, and liquidation.

2.  What is the Statute of Limitations?

There is no one “statute of limitations” that dictates the time within which a lawsuit must be filed.  Rather, there are many statutes of limitations that differ in time limits depending on the nature of the underlying cause of action.  The notion of a statute of limitations is to provide a time frame within which one must bring their lawsuit, otherwise the claim will forever be time-barred.  However, there are certain factors which can toll the statute’s application.  For example, if the claimant is a minor, if the claimant becomes incapacitated, or if the defendant is intentionally evading service.

3.  What are the general stages of litigation?

First, a civil suit is commenced by the plaintiff filing a complaint with the clerk of courts.  The clerk will then issue a summons and a copy of the complaint which is served on the defendant by the sheriff or a private process server.  After receiving notice of the pending lawsuit, the defendant will have a defined period of time within which to file an answer admitting or denying the allegations of the complaint.  Should the defendant fail to respond, the plaintiff may then move to have a default judgment entered and seek to enforce the judge’s final order.

However, if the defendant does answer the complaint, the next phase of litigation is discovery and motion practice.  If a settlement agreement cannot be reached during the time prescribed for discovery and motion practice, the case will proceed to trial, or in some instances, alternative dispute resolution.  At the conclusion of trial, unless there is a mistrial, a judgment will be entered.

The final stage of a civil lawsuit is judgment enforcement or appeal.  If the judgment is in favor of the plaintiff, the plaintiff can move to record the judgment in the public records and seek to file a lien on the defendants property.  Even if the defendant appeals the judgment, the plaintiff can still usually seek to enforce the judgment, unless the defendant files a motion to stay enforcement pending appeal which usually requires the defendant to post a bond.

4.  What is the discovery process?

Discovery refers to the stage in litigation when the parties to the suit seek to obtain relevant information from their adversary or other third parties in order to develop their theory of recovery or defense.  Under the United States theory of jurisprudence, broad discovery is permitted to include anything that might tend to be relevant.  Forms of discovery include oral depositions, requests for admission, and written interrogatories.

5.  What are depositions, requests for admission, requests for production, and interrogatories?

Depositions are oral examinations of a witness, sworn under oath, and recorded by a stenographer.  The court has the authority to issue subpoenas for third parties to submit to a deposition.  The effect is to provide concrete testimony which can later be used to rebut or impeach a witness’ testimony at trial, or to preserve the testimony of a witness who may not later be available.

Written discovery encompasses requests for admission and interrogatories.  Requests for admission are just what they sound like, formal and binding requests for the opposing party to admit or deny specific allegations.  Requests for production are formal requests for the opposing side to produce specific documents or other physical evidence pertinent to a claim or defense.  Lastly, interrogatories are similar to requests for admission except that whereas requests for admission are usually answered “yes”/“no” or “admit”/”deny”, interrogatories ask for answers to specific questions.

6.  What is a motion and motion practice?

Motion practice is simply the pre-trial and trial strategy of utilizing motions to steer the case towards a particular course.  That being said, a motion is a written request to the court to grant relief which is detailed in the body of the motion.  What is more, a motion is usually accompanied by a memorandum which details the legal grounds upon which the motion is based.  There are numerous types of motions for all sorts of requests which can deal with both procedural issues about how the case will unfold, and dispositive motions which can terminate or revive a case, if granted.   Most common is the “motion for summary judgment”, which provides for the expedited resolution of the case without a trial because there is no genuine issue as to any material fact.

7. What is Alternative Dispute Resolution?

Alternative Dispute Resolution (“ADR”) is an extra-judicial process through which litigants can seek to resolve their legal disputes without entangling themselves in the rigamarole of the practices and procedures of the court system.  ADR can avail itself in two main forms: Arbitration and Mediation-with each entailing their own benefits and drawbacks.  As a general rule, arbitration is mostly utilized for disputes that have already happened, while mediation seeks to resolve future disputes.

8.   What is Arbitration?

Arbitration is a process where a disputed matter is presented to a single arbiter, or to a panel of arbiters, who issue a binding resolution to the matter.  Meaning, if you pursue arbitration, you are forgoing the possibility of taking the matter to a court of law.  Parties can find themselves in arbitration as a result of a contract clause or by voluntarily submitting to it in an effort to reduce the overall financial burden that litigation entails.  In certain situations parties may agree to enter non-binding arbitration, but this is rare in that non-binding arbitration will most certainly be appealed to a court of law at the request of the losing party.  What is more, under a few narrowly defined circumstances, binding arbitration can be appealed to a court of law.

9.  What is Mediation?

On the other hand, mediation is an informal alternative to a court of law in that it is not binding, and is conducted, not decided, by a mediator.  Rather than trying to “decide” the correct answer as do judges and arbiters, mediators seek to work with adversaries in order to reach an amicable resolution to their problems without resorting to a judicial process.  Mediation can arise in the context of business disputes, divorces, child custody, and general civil litigation.  In Florida, the Supreme Court has mandated mediation for all Foreclosures, and the U.S. Southern District mandates mediation for all civil disputes.

10.  Generally, how long does a civil suit take from start to finish?

The answer to this question is highly case-specific and really is incapable of answering without evaluating the facts of a particular case.  If the defendant fails to answer the complaint, the plaintiff may move for a default judgment in a few short months.  However, if the defendant does answer and contests the merits of the lawsuit, final resolution could take years depending on the number of defendants, number of issues presented, amount of discoverable evidence, and the caseload of the courts’ docket.

11.  Once I obtain my judgment, then what?

After obtaining a judgment, you will need to perfect a lien on the debtor’s property.  Whether you are seeking to collect on the debtor’s home, personal property, or vehicle, you will need to conduct an assessment of what assets are exempt and protected from being levied upon.  After your attorney conducts the investigation of the defendant’s assets, you can seek to have the sheriff levy upon their bank accounts through a process called attachment, their receivable accounts through garnishment, or a judicial sale of non-exempt assets in order to satisfy your judgment lien.

12.  How do I pay my civil litigation attorney?

The answer depends entirely on the agreement you reach with your attorney.  You may agree for an hourly rate, a flat fee, or a contingency fee.  In many types of cases of civil litigation, attorneys operate on a contingency basis for pursuing civil claims, with the client only owing attorneys fees if the client prevails at trial or obtains a settlement.

For a complete breakdown and discussion of the various types of fees lawyers charge, please see our section on FEES.