3.3 Pretrial Procedures

Learning Objectives

  1. Explore pretrial procedures such as pleadings, discovery, and motions.
  2. Find out how class-action lawsuits are organized and prosecuted.
  3. Learn about issues and challenges facing parties during discovery.

After issues related to subject matter jurisdiction, standing, and personal jurisdiction are sorted out and parties have hired counsel to represent them, then a dispute can proceed to the pretrial stage. In civil cases, litigation begins with the filing of a complaintThe initial document that starts the lawsuit by setting forth the plaintiff’s claims. by the plaintiff. The complaint is a simple document setting forth who the parties are, the facts of the case, and what specific laws the defendant has violated. (Each of these is a claim.) The complaint ends with a prayer for reliefA claim by the plaintiff for damages sought from the defendant.. The plaintiff may be seeking damagesLoss suffered by plaintiff, typically expressed in terms of money. (money), specific performanceA nonmonetary remedy available in certain cases whereby the defendant is ordered to perform the specific act agreed to in a contract. in certain kinds of contract cases, or a temporary or permanent injunctionAn order by a court to a party to do something or to stop doing something.. It is much easier to get a temporary injunction in the early stages of litigation, because courts don’t want to see the defendant take some action that may result in irreparable harmA type of injury that cannot be corrected by money or by putting things back to where they were.. For example, if a real estate development company wants to tear down an old shopping mall to build a new skyscraper, and one of the tenants in the old mall claims it still has a right to be there, the tenant may be able to obtain a temporary injunction stopping the demolition until the lease issues are sorted out. If the demolition is allowed to continue and the tenant later turns out to be the winner, it will be too late to grant the tenant any meaningful remedy.

Citizen advocacy groups with an antilitigation public policy agenda often complain about frivolousLacking in legal merit. lawsuits being filed in court. Most court systems have rules to prevent the filing of frivolous suits. In the federal system, the rules state that all claims must be signed by a lawyer certifying that to the “best of the person’s knowledge,” formed after “an inquiry reasonable under the circumstances,” the claim is not being presented for an unlawful purpose such as harassment and that the claims are either “warranted by existing law” or a nonfrivolous argument for modifying existing law. In practice, this standard is quite easy to meet, and it’s hard to think of a factual scenario—other than the most absurd—that would rise to the level of being legally frivolous.

The complaint is filed with the clerk of the court where the suit is to be heard. Every court has a clerk’s office to handle administrative matters relating to litigation. Even though the court system is a public service, there is usually a fee associated with filing a complaint to cover some of the court’s costs.

The clerk will next issue a summons to the defendant, along with a copy of the complaint. The summons is sent to a process server to effect service on the defendant. When the defendant is served, it is very important for the defendant to respond to the complaint in a timely manner. Ignoring the complaint, even if the defendant believes the complaint is devoid of any merit, is a fatal error. If the defendant does not reply to the complaint, the plaintiff can ask the court to issue a default judgmentA judgment entered against a party for misconduct or failure to answer. against the defendant, including granting all the relief the plaintiff is asking for.

In certain types of cases, there may be a large number of plaintiffs injured by a defendant’s actions. This may happen in a product liability lawsuit where a product is purchased by many thousands of consumers, all of whom experience the same product failure. The batteries for Apple’s popular iPod, for example, had a high failure rate, leading to a large number of consumer claims. There also may be a large number of plaintiffs in financial services cases, where a financial institution or investment firm defrauds a large number of investors. In these cases, several lead plaintiffsIn a class-action suit, the representative plaintiffs of the class. may attempt to form a class in a class-actionDescribes a lawsuit in which a representative plaintiff represents an entire class of similarly situated plaintiffs against the defendant. lawsuit against the defendants. Under federal civil procedure rules, class actions may be granted when there are so many plaintiffs that it is impractical for them to file separate lawsuits, there are questions of law or fact that are common to members of the class, and the lead plaintiffs will fairly and adequately protect the interests of the class.

The defendant must file an answerThe defendant’s written response in civil suit to the plaintiff’s complaint. to the complaint within a specified period of time, typically thirty days. The answer is a paragraph-by-paragraph response to the complaint, admitting certain paragraphs and denying others. The answer may also contain an affirmative defenseA defense that does not deny the defendant’s actions but provides a reason or justification, such as self-defense. (self-defense in an assault charge, for example) the defendant wishes to pursue. Taken together, the complaint and answer are known as the pleadingsThe complaint, answer, and any supporting documentation.. The answer may admit, for example, noncontroversial claims by the plaintiff such as the defendant’s name, address, and the nature of the defendant’s relationship with the plaintiff. Each time the defendant denies a plaintiff’s claim in the complaint, that sets up a controversy or argument that must be litigated. Reducing the number of claims to be resolved before an actual trial begins makes the trial shorter. For example, in many civil cases, the plaintiff will make claims about liability and damages. A defendant may be willing to admit that it is liable but may argue about the plaintiff’s claims for damages. This can sometimes lead to bifurcated trials, where the issues of liability and damages are litigated separately.

At any point in litigation, either party may file motions with the court. The motions are designed to short-circuit the litigation and lead to an early end to the lawsuit. Litigation is so time consuming and expensive that either party would be gratified if the judge would simply cut the lawsuit short and declare a winner. One such motion is the motion to dismiss for failure to state a cause of action. In this motion, the defendant argues that even if it admits everything in the complaint is factually true, that doesn’t lead to any legal liability. In other words, the defendant’s conduct has not broken any laws. A similar motion is the motion for judgment on the pleadings. In this motion, one party asks the judge to decide the case based simply on the answer and complaint.

If a long period of time has passed since the incident in question and the filing of the lawsuit, a defendant may file a motion to dismiss based on the statute of limitations. Every civil and criminal action has a statute of limitationsA defined time limit under which a legal action must commence or be forever barred., which states that any claim or prosecution under the statute must be brought within a specified period of time or it will be dismissed. Only a few crimes are exempt from the statute of limitations and can be prosecuted at any time: murder (in most states) and rape (in many states). The statute of limitations exists to encourage aggrieved parties to file their lawsuits quickly, while evidence is still fresh and relevant people have memories of what occurred. As time passes, evidence may become stale, witnesses may die or move away, and those that can be located can’t remember what they saw or heard. In other words, the quicker a suit is filed, the more likely that the real truth will be discovered by litigation. For businesses, a statute of limitations also allows it to “close the books” on past liabilities, such as accounts payable or tax payments, knowing that too much time has passed for anyone to come collecting on those monies. It is possible, though, in many cases to tollA temporary halting of the clock in calculating whether the statute of limitations has run out. the statute of limitations. If an accountant commits fraud, for example, and a criminal complaint is filed but the accountant flees overseas for many years, the statute of limitations does not run while the suspect is hiding.

In support of any motion, a party may submit an affidavitA sworn statement in writing made under oath.. Affidavits play an important role in pretrial procedure because they are an effective way for parties to tell their side of the story to the judge. They are limited, however, because even though they are given under oath, they may raise more questions and are not subject to examination by the other side.

After pleadings are filed, the litigation moves into the discoveryThe method used in civil and criminal cases to obtain information about each party’s case. phase. Discovery is a process in which each side finds out information about the other’s case. Let’s assume, for example, that you buy a new car and within a few weeks, a tire falls off suddenly while you’re driving. You would rightly conclude that there’s something wrong with the car, so you sue the manufacturer. At this point, you have no idea what’s wrong with the vehicle. Was the design flawed? Was there something wrong with the manufacturing of your specific vehicle? All you know is that new cars should not experience this sort of failure. After you file a lawsuit against the manufacturer, discovery allows you to find out more information about the vehicle so that you can effectively proceed with the lawsuit. You could find out what engineers did when they designed the vehicle and review records of similar accidents or factory records from the day your vehicle was produced.

Discovery is designed to prevent trial by surprise, where either side may suddenly produce a damning piece of evidence that allows it to win the trial. Since trials are based on the discovery of truth, they should be tried on the merits of the case rather than a party’s deceit. In that spirit, the rules of discovery are written broadly to cover scope and obligation. In scope, any piece of evidence that may be relevant to the trial is discoverable. Even if evidence may be ruled later to be inadmissible for a legal reason, it is discoverable during discovery. In obligation, both parties are obligated to turn over material that supports their own case, without demand from the other side. If the material harms their own case, they have to turn it over if the other side asks for it.

There are four types of discovery. The simplest (and least expensive) is an interrogatoryWritten questions posed by a party to another party during discovery.. These are written questions addressed to the other party. The questions tend to be simple and straightforward, dealing with uncontroversial matters such as a company’s structure or the names and addresses of relevant witnesses.

A second type is a request for production. Using this form of deposition, a party can request the other party to produce written communications such as internal company reports, e-mails, product manuals, and engineering specifications. In some cases physical evidence may also be produced. If you sued a vehicle manufacturer because your tire fell off while driving, for example, the manufacturer may ask you to produce your vehicle so that its engineers can inspect it. Failure to preserve and produce key evidence in litigation can lead to charges of spoliationDestruction of key evidence in a trial., which may result in severe sanctions against the offending party.

A third form of discovery is a request for admissionA set of statements posed by one party to another for purposes of having the other party admit or deny the statements, to narrow the scope of facts to be tried.. Remember that a complaint contains a series of claims the plaintiff is making against the defendant, and the answer is mainly a series of denials of those claims. As each party finds more information about the other’s case in discovery, one party may ask the other to admit that one of the contested claims is true. Doing so narrows the issues for trial because it is one less thing that the jury has to decide. Asking a party to give up a contested claim can be done at any time during litigation. If not done as a formal method of discovery, it may be done as a stipulationAn agreement made between opposing parties in litigation. instead. For example, in your trial against the vehicle manufacturer, you may ask the manufacturer to admit that your specific vehicle was manufactured on a specific date at a specific factory.

Finally, discovery can take the form of a depositionA statement by a party or witness made under oath.. A deposition is a sworn oral statement, in response to questions, given by a potential witness in a trial to the attorneys in the case. A deposition hearing is attended by the witness being deposed and lawyers from both side, as well as a court reporter who keeps a written transcript of the entire deposition. In your product liability suit against your vehicle’s manufacturer, for example, you might want to depose the safety engineer who designed the car’s tire and braking systems. There is no judge present, so there is great latitude for parties to ask questions, even if those questions may result in testimony that is later inadmissible in court. Depositions serve to allow attorneys to prepare for trial by knowing everything a witness may say in court. They also serve to pin down a witness’s testimony, since a witness who changes testimony between a deposition and trial can be easily impeachedTo challenge the credibility of a witness to tell the truth.. Depositions are easily the most expensive form of discovery, sometimes requiring weeks or months of advance planning, travel, extra costs, and lost work time from witnesses being deposed. In some cases they can degenerate without the presence of a judge, as Note 3.72 "Video Clip: A Deposition Goes Awry" shows.

Video Clip: A Deposition Goes Awry

(click to see video)

Although the policy behind liberal rules of discovery is to permit both sides to prepare adequately for trial, in effect discovery is an expensive phase of litigation. With most lawyers charging by the hour, responding to discovery requests can quickly rack up daunting legal bills. Discovery can also drag out litigation to many months or years. Most large corporations find they must dedicate entire in-house staffs of attorneys, paralegals, and support staff to respond exclusively to discovery requests. The judge assigned to the case is supposed to supervise discovery and ensure that the parties respond in a timely manner, as well as make rulings on specific discovery requests and objections. Theoretically, a judge has the power to sanction parties for abusive discovery, up to and including ordering a default judgment against the offending party. There are, however, few meaningful sanctions that can be levied against parties that abuse discovery, and plaintiffs in particular have a vested interest in making discovery last longer than the price of a sought-after settlement. These issues are magnified in e-discoveryDiscovery involving electronically stored information., when mountains of electronic data have to be sifted through to find relevant discoverable material. Objections to turning over material that may be proprietary, privileged, or the result of the work product doctrineMaterials prepared in anticipation of litigation protected from disclosure during discovery. also become more time consuming when parties are engaged in e-discovery.

During or after discovery, parties typically make a motion for summary judgmentA judicial order declaring a winner on the merits of a case.. This motion is designed to cut the trial short by asking the judge to decide based on the information discovered so far in the case. In essence, the party making the motion is saying, “Why have a trial?” since the evidence would lead any reasonable jury to the same and inevitable conclusion.

Key Takeaways

Litigation commences with the filing of a complaint by the plaintiff. If the plaintiff wishes to represent many others with the same claim against the same defendants, the plaintiff may try to certify the lawsuit as a class-action suit. Frivolous cases are prohibited in litigation, but it is relatively easy to argue that a case is not frivolous. The defendant files an answer to the complaint or risks a default judgment. Most civil and criminal cases must be brought within the prescribed statute of limitations. During the discovery phase of litigation, parties share and exchange information about each other’s cases so that neither side is surprised during the trial. There are four methods for conducting discovery: interrogatories, requests for production, requests for admissions, and depositions.


  1. During the Catholic priest sex scandal, many potential plaintiffs who were abused as children found that their lawsuits against the church and individual priests were barred by the statute of limitations because the abuse happened so many years ago. Do you believe that these lawsuits were rightfully barred? Why or why not? Should the statute be changed in sexual misconduct cases?
  2. Do you think there are too many frivolous cases filed? If you answered yes, how would you revise the federal rules of civil procedure to raise the standard on what constitutes a frivolous case?
  3. Look at a sample interrogatory at http://www.justice.gov/atr/foia/frito-lay/8-16-96.htm. This interrogatory was issued by the U.S. Department of Justice in an antitrust investigation against Frito-Lay for possible violations of the Sherman Antitrust Act. What do you notice about the questions? How long do you think it would take to compile a response to these questions? If you were the defendant, would you object to any of them? If so, on what grounds?