Civil Litigation FAQ

Q. What is civil law?

A. Civil law is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim. For example, a car accident or personal injury claim, a products liability claim, a medical malpractice claim, a wrongful death claim, a workers’ compensation claim, a contract or real estate dispute, are all civil law cases. Civil law refers to both the common law and the law of equity. In this sense, civil law is usually compared to criminal law, which is that body of law involving the state against individuals and organizations where the state relies on the power given to it by statutory law, and the objective is to punish the wrongdoer. In contrast, the objective of civil law is to right a wrong, honor an agreement, or settle a dispute. If there is a victim, they get compensation and the person who is the cause of the wrong pays. If it is an equity matter, there is often something to divide and it gets allocated by a process of civil law, possibly invoking the doctrines of equity with the objective usually being deterrence and retribution.

Military law, employment and labor law, administrative law, constitutional law (the laws governing the political and law making process), international law, environmental law, education law, intellectual property, divorce and domestic relations actions, civil restraining orders, and even small claims cases, are also forms of civil law whereas there are legal options for causes of action by individuals or organizations within any of these areas of the law. Civil law courts provide a forum for deciding disputes involving “torts” (such as accidents, negligence, defamation, libel and slander, to name a few), contract disputes, the probate of wills and trusts, property disputes, administrative law, commercial law, and any other private matters that involve private parties and organizations, including government agencies. An action in criminal law does not necessarily preclude an action in civil law, and may provide a mechanism for compensation to the victims of crime.

Q. What is a tort?

A. When someone or something causes an injury to another person or thing, the legal profession calls such an act a “tort.” A tort is committed when one person is harmed because of the wrongful act of another. The purpose of tort law is to assign responsibility to the individual, group or company responsible for causing such harm.

Q. What are some examples of torts?

A. Personal injury cases, negligence, negligent security, assault and battery, property damage claims, property disputes, economic losses, landlord tenant disputes, evictions, debt collections, promissory note defaults, business wrongs, breach of contract, breach of warranty, fraud, misrepresentation, unjust enrichment, nuisance actions, consumer actions, wrongful termination, civil rights violations, defamation, libel, slander, amongst numerous other types of actions, are all tort actions that may be the subject of civil litigation, i.e., a law suit. Another tort would be for a claim for unfair and deceptive acts and practices under Massachusetts General Laws Chapter 93A.

Q. What is civil litigation?

A. Civil litigation is a legal dispute between two or more parties that seeks money damages or specific performance, rather than criminal sanctions. A lawyer in a civil litigation is commonly referred to as a trial lawyer or litigator. Civil litigation is not necessarily confined to a trial as it can also encompass hearings, arbitrations and mediations before administrative agencies, foreign tribunals and federal and state courts. Civil litigation covers a broad range of disputes falling within many different practice areas (a large number of these are identified in the above “civil law” Q&A) and, therefore, civil litigation takes many forms depending on the type of case. In general, civil litigation is the legal process that most people think of when the word “lawsuit” is used. Civil litigation, for the most part, has seven identifiable stages, those being investigation, pleadings, discovery, settlement, pretrial, trial, and appeal. Not every stage of litigation is reached in every civil action; for example, most cases settle prior to trial and many trial verdicts are not appealed. Civil litigation can last a few months or several years and, comparatively speaking, civil litigators actually spend little time in trial as most of the time is devoted to the extremely labor intensive discovery stage.

Q. Who are the basic parties to a civil litigation?

A. The plaintiff is the person or entity who brings a civil suit in a court of law. The defendant is the person or entity that is being sued in the civil proceeding.

Q. What is a civil pleading?

A. A pleading is a formal document in which a party to a civil lawsuit or any other legal proceeding sets forth or responds to allegations, claims, denials, or defenses. Typically, the initial pleadings in a civil lawsuit are the plaintiff’s complaint and the defendant’s answer.

Q. What is the burden of proof?

A. The burden of proof is the legal standard that must be met by the moving party. It is the obligation to shift the accepted conclusion away from an oppositional opinion to one’s own position. The party who does not carry the burden of proof carries the benefit of assumption, meaning that no evidence is needed to support that party’s claim. Fulfilling the burden of proof effectively captures the benefit of assumption, passing the burden of proof off to another party.

Preponderance of the evidence, also known as the balance of probabilities, is the legal standard required in most civil cases, grand jury proceedings, and family court determinations involving child support and money matters. The burden is met if the proposition is more likely to be true than not. The standard is effectively satisfied if there is greater than a 50% chance that the proposition is true, meaning that it is more probable than not.

Clear and convincing evidence is a higher level of burden of persuasion in a civil action. It is the standard used in administrative court determinations, in juvenile delinquency and CHINS cases, and in many types of equity cases, including paternity, child custody, the probate of wills and living wills, petitions to remove persons from life support, and many similar cases. Clear and convincing proof means that the evidence presented by a party must be highly and substantially more probable to be true than not and the trier of fact must have a firm belief or conviction in its factuality. A greater degree of believability must be met than with the preponderance of the evidence burden, which is the more common standard of proof in civil actions. To prove something by clear and convincing evidence, the party with the burden of proof must convince the trier of fact (judge or jury) that it is substantially more likely than not that the thing is in fact true. It is a stricter requirement than proof by preponderance of the evidence, which merely requires that the matter asserted pass the 50% threshold of being more likely true than not.

Proof beyond a reasonable doubt, which requires that the trier of fact be close to certain of the truth of the matter asserted, is the burden of proof required in a criminal prosecution and is the strictest legal standard.

Q. How does the Statute of Limitations affect my case?

A. The Statute of Limitations is a fixed period of time that is governed by the law of the state or federal jurisdiction. Simply stated, it is the time in which you must file your case in court (that is, bring a complaint to initiate suit) or be otherwise forevermore barred from doing so. This time period can differ between each type of case and there are many different limitations periods. For but one example in Massachusetts, it is six years for certain types of contract cases whereas it is only three years for a bodily injury case. The limitations period typically begins to run at the actual time of the economic, physical or psychological injury though, in certain cases where damages are initially unforeseen and therefore unknown, it can begin to run at the later time when you should have reasonably known of the injury. The Statute of Limitations may sometimes be extended in certain situations such as when, for example, an injured person is an infant, mentally incompetent, or physically incapacitated. Always consult with an experienced lawyer for an explanation of these critical time limits as noncompliance could be fatal to your case.

Q. Are there alternatives to litigation?

A. Various dispute resolution alternatives are often used by parties to reduce the expense and delay associated with litigation. Alternative Dispute Resolution (“ADR”) is a term used to describe a wide array of dispute resolution processes. These include mediation, negotiation, conciliation, case evaluation, mini-trials, summary jury trials, master’s proceedings, and binding arbitration. ADR not only can reduce expense and delay, but can also improve results because the parties retain control, especially in mediation, and therefore have broader freedom and authority to fashion outcomes by agreement than any trial court would have to order outcomes. Although many of these dispute resolution alternatives have common features, there are significant differences and you should consult an experienced attorney before selecting any manner of proposed alternative dispute resolution.

Q. What is the difference between mediation and arbitration?

A. Two of the most commonly used dispute resolution alternatives are mediation and arbitration. These terms are often confused and used interchangeably, but they have entirely different meanings. An experienced attorney will understand and weigh the advantages and pitfalls of each.

Mediation is a voluntary process in which a trained neutral (the mediator) assists the parties in reaching a negotiated settlement. The mediator is akin to a referee and illustrates both the pros and cons of the parties’ respective positions without imposing a solution to the dispute. With mediation, the parties are more in control of the outcome and are free to walk away from the negotiating table at any time. However, any agreement that is reached will be enforceable as with any contract.

Arbitration is a form of private adjudication in which a disinterested third party, the arbitrator, hears the evidence and decides the case. In some cases, there may be a panel of three arbitrators. In stark contrast to mediation, arbitration requires the parties to voluntarily relinquish control to this third party. Either before or after the dispute arose, the parties executed a contract or will execute a submission agreement to submit their differences to a binding decision that results from the arbitration hearing. The arbitrator is akin to a judge and the process is likened to a trial, except that it is usually conducted in a conference room and formal rules of evidence usually do not apply or may otherwise apply only in part. In Massachusetts, the arbitrator’s decision is almost always binding on the parties in that there are few legal grounds to appeal an arbitrator’s decision.