Civil Litigation 101

CIVIL LITIGATION GENERALLY 

1. My trial practice is primarily “civil” in nature. What are some examples of “civil litigation”?
2. In family law, it can be a divorce action, or, when the parents are not married, “allocation of parental rights” (aka “paternity suit”); or, an adoption, or contempt, or modification of a prior court order such as child custody, or child support, or alimony.
3. When there is an alleged personal injury or civil wrong, it can be a suit over a car wreck where the insurance company won’t pay a fair settlement, or a dispute over the validity of grandpa’s will, or a boundary-line or right-of-way dispute between neighbors.
4. A civil claim can also result from an industrial accident or alleged unjustified refusal of an insurance company to pay its own insured’s valid claim ( called a”first-party insurance bad faith claim”).
5. A civil suit or claim is separate from a criminal charge, like murder or robbery, or administrative proceedings, like workers’ or unemployment compensation or Social Security claims.
6. In most civil matters, mediation is an invaluable “alternate dispute resolution” tool. Mediation is usually quicker and cheaper than a trial. For more information on this topic, you may search for “mediation” at www.hunterlawfirm.net/blog .
7. Most of my personal injury matters don’t require me to file a suit, as I work with an insurance adjustor, but most family court matters start with a petition.  I wish more people would come to be before it comes to that.
8. When I was a student, we had a course named “Civics”. I think it was a chance for the teacher to go over the basics of government, politics, and legal matters. I learned something called “civic duty”, a term that seems lost to our “modern” ears.
9. I respect working people. All labor is honorable, but I am startled by how many people don’t understand the basics of our legal system. Many of them lack knowledge and lack the tools for organizing and summarizing essential facts.
10. I have been told I am a good teacher. My clients seem to appreciate that we take time to teach them:
    1.  How the legal system operates;
    2. How they can gather and sort the “puzzle pieces” that make up their case; and,
    3. How to act toward their opponent and the Court and perhaps solve their dispute in an “alternative” way.
11. I deal with “organizing” your case elsewhere in his revised description of my “digging down system”. 2021 Revised: Digging Down – On Organizing and Preparing Your Case – Attorney J. Burton Hunter III : Attorney J. Burton Hunter III (hunterlawfirm.net)
12. This article will discuss three subjects:
    1. Our “adversary” system” of civil law and something called “pleadings”.
    2. Our methods of getting information from the “other side” and sharing out information with our adversaries. That is called “discovery”.
    3. The official way a court “speaks” is through its “orders”.
13. Here goes!
14. PLEADINGS AND OUR ADVERSARY SYSTEM
15. I have read that there was a time that if a drunken farmer rode his horse through town and killed a person’s family member, that person was entitled to kill a family member of the drunken farmer. In theory, that was better than having a war between towns, clans, or tribes.
16. Eventually an “adversary system” developed in which one side, the “plaintiff” or “petitioner”, filed in court and served on another a suit or action and a paper containing numbered accusations or allegations. These paper filings are called “pleadings”.
17. Pleadings can include sub-pleadings called motions, motions to dismiss, motions to enjoin behavior, or motions to permit certain actions such as keeping certain evidence away from a jury or court. That is called “excluding evidence”.
18. This post will not discuss the jury system because the main pillar of my practice is family law which has a judge presiding but no jury. If the jury is your subject of inquiry, I just searched my blog, paragraph 6. above, for the term “jury” and got 175 “hits”, so go for it!
19. The person being sued  (the defendant or respondent) has 30 days to reply and admit or deny the accusations against them.
20. All of this is governed by “rules”, The WV Rules of Civil Procedure, The WV Trial Court Rules, WV Rules of Evidence, WV Family Court Rules,  and Rules of Appellate Procedure, to name a few. The existence of these rules is a great reason not to try to be your own lawyer.
21. If the Complaint or Petition fails to allege proper venue, or jurisdiction, or a claim that that the court can grant, one can file a “Rule 12b Motion to Dismiss” on the pleadings.
22. Another Rule, 56, allows the defendant to attach affidavits and other supporting documents, maps, articles, or recorded documents such as deeds or wills, and move to dismiss because there are no seriously contestable facts.
23. Judges are reluctant to grant those motions, without giving the case to a jury, because our WV Supreme Court of Appeals tends to grant such appeals more than appeals backed by a jury’s verdict.
24. Along the way, parties often file motions to make the other side respond to discovery, to limit “in limine” inadmissible evidence, or to direct a verdict at the end of the trial, or to overturn the jury’s decision.
25. All of the above are driven by deadlines and penalties for missing the deadline. I cover that somewhat in the next section
26. DISCOVERY
27. Rules of Civil Procedure 26 through 37 cover “Discovery”. “Discovery” is often tedious. And it can be expensive.
28. First, counsel must gather a “history” from her or his own client and formulate questions (interrogatories), requests to produce documents and evidence, requests to inspect property or premises, depositions under oath before a court report or videographer, and “requests for admission” of matters critical to the outcome of the case.
29. A failure to deny timely a request for admission means that fact is deemed to be admitted by the Court. That is a BIG deal!
30. The granting of the right to pursue discovery in Family Court beyond basic financial disclosure is discretionary by the Court but is usually granted.
31. Discovery is governed by Rules 26-37 of the WV Rules of Civil Procedure, As Amended. 
32. Our office uses a standard letter to our client explaining discovery, cheering them on, since it actually helps us prepare our case, and puts out a timeline for us to get complete responses timely filed.
33. Depositions are too expensive for most of our family law cases, and judges won’t allow the taking of deposition if the real goal is to wear down the other side.
34. The attorney who gives serious attention to discovery us the attorney you want on your side.
35. ORDERS
36. Most courts have a standard scheduling order. Once the other side is served, by process server or certified mail, the scheduling order is sent out. It is a form order, prohibiting certain behavior such as social media posting, requiring a “divorce parenting class” for people filing in family court, and perhaps timelines for discovery, mediation, etc.
37. Some of these things may be deferred to an actual “scheduling hearing”.
38. Family law cases may begin with a domestic violence filing, a routine petition and motion for temporary relief (child support, alimony or possession of a house or car.), or a motion for expedited or emergency relief.
39. One rare order comes from a motion or petition for “ex parte relief”; that is, an order entered before any evidence is taken. It could be entered to prevent someone from leaving WV with a child or other urgent matter where “irreparable harm” is likely if the motion/petition is denied.
40. With unrepresented or “pro se” litigants, the Court often prepares the order. When there are lawyers, the court usually assigns the lawyer for the party who prevailed in what she or he was seeking.
41. Most orders have three parts:
    1.  The “appearances”, showing who appeared, how (in person, by Microsoft Teams, or by phone), how the hearing had been set and noticed, and what happened a first. It might be questions by the Court, “a discussion” among the court and counsel, a “proffer” (offer of proof) in an oral statement by the lawyers, etc.
    2. The order must then show the court considered everything presented, and the “findings of fact” and resultant “conclusions of law that the Court determines to be true.
    3. Last, the order must “order” something clear and specific.
42. I believe there are two critical components to preparing an order assigned to counsel by the court;
    1. Accuracy, which for me means dictating the order from my car or conference room, while events are clear in my mind, and honesty; and
    2. Honestly, this means you don’t load an order up with lots of inferences that you wish that the court has made or asides that aren’t really part of an order.
43. I admire the lawyer with meticulous handwriting clarity and speed, or photographic memory. But my cramped left-ended writing and slightly dyslexic take on things mean that the sooner I speak into the “Dictamus App” on my phone and hit “send” the better.
44. My practice is to order the CD recording of every hearing immediately following the hearing.  This is the way a lawyer can “win” a dispute over what was said and by whom.
45. A Rule 22 Notice of order gives the other lawyer/party just 5 days to object to or correct and order.
46. I have watched the rapid evolution of facsimile transmission and now e-mail. It is embarrassing to “copy to” the wrong person, especially the judge, or “auto-fil” to some other lawyer’s “receptionist”, but the benefit of being a rapid responder and initiator of e-mails is tremendous. I nudge cases along, sometimes inch by inch with frequent e-mailing, and copies to my staff so we stay on the same page
47. After the introductory language, findings, and conclusions, the order must communicate the court’s ruling in a clear and concise manner; the date child support or alimony begins, the date they end, the property that one is to receive, or the money judgment awarded, must be clear and be precise.
48. A final order must release counsel from further responsibility, make it clear that it is “final”, and set out the appeal deadline.
49. Most orders are public, but they can be “sealed” for various reasons, such as medical confidentiality, or protection of children or other innocent persons.
50. IN SUMMARY; we have a “adversary system” with petitions, complaints, and motions as the pleadings;  we gather and share information and evidence in “discovery”, and the courts run the show from beginning to end with Orders! If you understand that, you get three out of three, a perfect grade!

This post was written by Burton Hunter