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Essential Paperwork

What are all these “legal” documents?

Lawyers, by tradition or court rule, must file certain papers that look very different from documents used in everyday life. At the beginning of a lawsuit, attorneys exchange legal papers describing the claims and defenses of each side. As the case advances, your lawyer may send you copies of documents filed with the court, sent by the other side, or sent by the court. Your attorney is the best reference for explaining the legal papers in the context of your particular case. However, below are some of the common forms seen in civil litigation.

Summons and Service of Process

A Summons is an order from the court notifying the person or company sued (i.e. the Defendant) that they have been sued, that they must file an answer or other pleading and the consequences for failing to answer. The Summons and the Complaint (see below) must be personally delivered to the Defendant, either by handing it to the person or leaving it for the person after diligent attempts to personally serve the documents. The legal term is service of process. Once the Summons is properly served, the court has jurisdiction over the Defendant and the court has the power to make decisions about the lawsuit.

Complaint

The Complaint is the formal document that sets forth the claims that the person bringing the lawsuit (also known as the Plaintiff) has against the person being sued, the Defendant. The Complaint generally names the person (though it could include multiple people or companies) the facts of the case, the legal claims against the Defendant and the type of relief the Plaintiff would like the court to grant. The Complaint is often short on details and long on legal jargon. Courts generally do not require detailed factual claims, only enough facts to support a legal claim. However, as discussed below, the Defendant may challenge the sufficiency of the Complaint.

Pre-Answer Motions

In lieu of answering the Complaint, a Defendant may challenge either the factual or legal issues in the Complaint, the parties involved in the lawsuit, or the Court’s jurisdiction over the case. Common types of pre-answer motions include:

  • Demurrer or Failure to State a Claim. A common attack is that the Complaint fails to state a claim for relief. In California, this is known as a “demurrer,” and in federal court, a “Rule 12(b)(6) motion.” This type of motion may attack the factual allegations or the legal claims in the Complaint. Often times the Defendant attempts to narrow the legal claims to be litigated.
  • Incorrect or insufficient service of process. The Defendant may make a motion to quash (or challenge the service) if the Summons and Complaint are not properly delivered to the Defendant. There are a number of legal requirements (a sort of step-by-step) that must be fulfilled when documents are served to individuals or companies. Your attorney will help make sure that the documents are properly served.
  • Subject Matter Jurisdiction. A Defendant may challenge the Complaint by asserting that the court does not have the authority or jurisdiction over the matter. This may occur if a party sues in the wrong court, or if a Plaintiff asserts state law claims but brings a lawsuit in federal court.
  • Personal Jurisdiction. Each court has a limit to its jurisdiction and its ability to assert jurisdiction over a person. A Defendant may challenge the court’s ability to assert personal jurisdiction if the Defendant has not had any contact with that jurisdiction.

Answer

In the Answer, the Defendant makes a formal response to the Complaint. The Answer states what parts of the Complaint the Defendant admits are true, what the Defendant believes is untrue (or contests), any defenses the Defendant may have and whether the Defendant has claims against the Plaintiff or any other party. In California, the Defendant has 30 days to answer the Complaint. If the Defendant does not answer the Complaint, the Plaintiff can request that the court enter a Judgment against the Defendant based on the Defendant’s failure to respond, which is known as a “Default Judgment.” Additionally, the Answer may assert legal defenses which may block or negate the Plaintiff’s claims (known as affirmative defenses).

Cross-Complaint

The Defendant may also assert a cross-complaint if the Defendant feels that the Plaintiff committed some wrong or harm towards the Defendant during the same occurrence. This allows the Defendant to resolve his or her claims at the same time or make a claim against a third-party not yet involved in the lawsuit.

Answer to Cross-Complaint

Similar to an Answer, the party who has been cross-complained against must assert admissions, denials or lack of information to admit or deny. The party sued in a cross-complaint is known as a Cross-Defendant. The Cross-Defendant may also assert affirmative defenses or other claims against any other party in the lawsuit.

Discovery

After all the Complaints have been answered and all the legal claims and defenses have been sorted out, the litigation moves to the discovery stage. Please see “discovery” for more information about the documents you may see in this stage of the litigation.

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