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Whether you have been sued, or are planning to sue, you can win your case at various stages of the litigation. You must understand the law as well as the appropriate procedural rules. You will win a case if you can show that your opponent missed a filing deadline, has no legitimate cause of action, spoiled or destroyed evidence, or doesn't have strong enough evidence to win at trial.
Steps
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Hire a lawyer. An experienced attorney is critical to your success in litigation. Court rules are complicated, and a seasoned trial attorney can present the evidence in the most compelling way.
- If you can afford it, find a lawyer who specializes in the area of law that is the subject of the lawsuit. Some attorneys only practice criminal defense, or they specialize in defamation or employment law. You can find an experienced attorney by visiting your state's bar association website, which runs a referral program. You can search by area of expertise.
- Look at any attorney's website and see what experience he or she has in the area of law. Also check to see if the attorney is certified as a specialist in the area of law.
- Furthermore, be aware that some lawyers only work for plaintiffs or defendants.
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Find the appropriate court to sue in. Plaintiffs can only file suit in a court that has “jurisdiction” (power) over a defendant. If the plaintiff filed the suit in the wrong court, a defendant can move to have the case dismissed. Generally, a court will have jurisdiction over a defendant if:
- The defendant lives or does business in the district.
- The events that are the subject of the lawsuit happened in the district.
- A contract was signed in the district or would have been performed there. [1] X Research source
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Draft a complaint. Your complaint will lay out the facts underlying your dispute and identify what relief you request. In many courts, a plaintiff can use a pre-printed “fill in the blank” form for starting a lawsuit. Check with the court clerk if a form is available.
- If no form is available, and you do not have a lawyer, then use a form complaint as a guide. The New York Courts system provides a sample you can use.
- At the top of the document is the header information: the court, the names of the parties, and the case number.
- Then, you should identify the document as your complaint.
- Beneath this, you state relevant facts: your identity, the defendant's identity, and the background facts to the dispute. Number each fact, and include no more than one fact per paragraph.
- Then state what relief you are requesting, typically the amount of money you wish to be awarded for damages.
- At the bottom comes the date and signature block.
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File a complaint. You will have to take your complaint and any other documents to the courthouse. File the documents with the court clerk. Typically, you must pay a fee in order to file the documents.
- If you can't afford the fee, then ask for a fee waiver form.
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Serve a summons and notice. You must give the person you sue a copy of your complaint as well as a summons. You can get a copy of a blank summons from the court clerk and fill it out.
- You can serve notice in a variety of ways. The two most popular forms are by mail or by personal service. Ask the court clerk which forms of service are allowed.
- Service by mail may be cheapest. You will need to mail the summons and a copy of your complaint certified mail to the defendant's address. You will also have to sign an affidavit or other form attesting that you sent notice. You may get this form from the court clerk.
- You can also serve notice personally. Typically, you use the sheriff or a private process server to take a copy of the complaint and the summons to the defendant, where they personally deliver it to him or her. Personal service will cost a fee, generally around $50. Most courts prohibit you from serving the papers yourself.
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Read the complaint or charging document. If you are the defendant in a lawsuit, then you need to know what allegations have been made against you. Identify the causes of action, which are the laws you are alleged to have broken.
- Also make note of when the complaint was filed and the court in which it was filed. This information will be important later, when you consider bringing a motion to dismiss.
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Research the law. Identify what elements the plaintiff must prove to win her case. For example, to prove negligence, a plaintiff must establish that the defendant (1) breached (2) a duty of care owed to the defendant, and that this breach (3) caused (4) damages.
- If any element is missing, then the plaintiff has not sufficiently alleged a cause of action.
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Study the statute of limitations for your state. Each claim brought by a plaintiff must be brought within a certain amount of time. For example, a breach of contract claim in New York must be brought within six years from the date of the breach. [2] X Research source A lawsuit for defamation brought in Utah must be brought within one year. [3] X Research source A prosecutor in Colorado must charge you with misdemeanor theft within 18 months of your alleged shoplifting.
- Statutory periods differ by state. Research only the laws for your state. Typically, you can find this information online by searching for the offense and then “statute of limitations.” Nolo is a website that often collects this information.
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File a motion to dismiss. You can move to have a case dismissed immediately, even before you answer the complaint. A case may be dismissed for a variety of reasons:
- The statute of limitations period has passed.
- The plaintiff has failed to state a claim. For example, the plaintiff may claim you were negligent; in other words, that you breached a duty of care owed to her. However, the law may state that you do not owe the plaintiff any duty of care, in which case she has no negligence claim against you. [4] X Research source
- The plaintiff filed the case in the wrong court. Note that if the plaintiff files in the wrong court, he can refile in an appropriate court, provided the statute of limitations hasn't run out.
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File for a default judgment. If you are a plaintiff and the defendant never responds to your lawsuit, you can move the court to enter a default judgment.
- You must have properly served the defendant with the complaint and summons. Be sure to have kept copies of your complaint as well as any receipt you received from a process server for serving the complaint on the defendant.
- If you cannot find the defendant, then it will be difficult to collect on your judgment. But you could put a lien on any property if you can locate it.
- You cannot seek a default judgment against a member of the military, or in a lawsuit to quiet title to a piece of land.
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Participate in the discovery process. Before trial, the discovery process allows you to share information and witnesses with the other side that you intend you use at trial.
- The discovery process includes three basic stages: written discovery, document production, and depositions. At any point during that process, you may want to file a motion to compel discovery if the other side is not giving you information you have reason to believe they have.
- For example, you may send written questions known as interrogatories to the other side. If you do not receive answers to those questions within a reasonable period of time, you may ask the judge to order the other side to provide answers.
- During document production, you or the other side can request any documents that might have anything to do with the case. [5] X Research source These documents may have information you can use to help you win the case. If you discover a "smoking gun" – a document that proves the person or company you're suing is liable for your damages – you can point it out and demand the other side settle. You also may be able to file a motion for summary judgment, arguing that certain facts or issues have been settled based on that piece of evidence. [6] X Research source
- Depositions are live interviews conducted by you and the other side in which you ask questions of someone such as a party or a witness who is under oath. The questions and the answers are recorded by a court reporter, who will later provide you with a transcript of the deposition. [7] X Research source
- During discovery, both parties also may issue subpoenas to third-party witnesses if other individuals who are not part of the litigation nevertheless have information that may be necessary to the case. [8] X Research source For example, if you are suing someone for harassing you, you may need phone records to show how many times a day the person called you. To get those phone records, you would issue a subpoena to the phone company.
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Identify evidence and witnesses. The parties in a lawsuit have the right to request copies of documents in each other's possession or control in a process called “discovery.” In discovery, you can also request that the other party answer questions, either orally or in writing. If you request a document and the other side claims not to have it, research whether or not they have destroyed it.
- Gather any evidence you have that shows the other side has the document. For example, did the other party refer to this document in an email? Is the document mentioned in a contract or other document?
- If you have a good faith reason to believe that the other party has destroyed evidence, file a motion for an order to compel discovery. [9] X Research source Explain in the motion why you believe the other party has the document and state that it has not been turned over.
- In oral argument over the motion, you can raise the issue that the defendant may have destroyed or hidden the document.
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Move for discovery sanctions. If the other side has destroyed evidence, then you can move for sanctions. The court has many options for sanctions up to and including rendering a default judgment against the other side. [10] X Research source
- If the discovery violation is sufficiently egregious (destroying a contract that is at issue), then move for a default judgment. You can win without even going to court.
- The court may be unwilling to enter a default judgment. But you can effectively win your case anyway. You can ask the court to prevent the other party from offering any evidence on the topic. For example, if the party's defense is that you sent an email agreeing to a change in a contract, but that party destroyed the email, then the judge can prevent the party from arguing that you ever agreed to the change.
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File a motion for summary judgment. After the close of discovery, either party may move for summary judgment. You should argue that there are “no genuine issues of material fact” and that you are “entitled to judgment as a matter of law.”
- Research your state law for the precise wording of the standard, but the same threshold requirement will apply: there must be no material factual issues in dispute and the law, when applied to the undisputed facts, should favor judgment for you.
- You should attach supporting affidavits to the motion, if necessary. For example, if witness testimony is critical to the motion, a notarized affidavit laying out the witness's testimony should be attached.
- You must also serve a copy of the motion on the other party after filing with the court. Ask the court clerk what methods are acceptable. Typically, you can either mail it or personally serve it using the sheriff or a process server.
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Participate in alternate dispute resolution. You may resolve your lawsuit without ever going into court by using a method of alternate dispute resolution. The most popular are negotiation, mediation, and arbitration.
- In negotiation, you and the other party meet to try and hammer out a compromise that is acceptable to you both. If an agreement is reached, then each party signs a waiver, relieving each other of any further liability. Settlement negotiations are an art, and you should have an attorney represent you in them.
- With mediation, you and the other party meet with a neutral third party, who facilitates discussion. The third-party neutral does not decide the case; however, he or she will help the parties find common ground. The mediator may also propose potential ways to resolve the dispute. [11] X Research source Mediation can be a cost-effective way of resolving a dispute to your (and the other party's) satisfaction.
- In arbitration, the parties submit their case to an arbitrator or a panel of arbitrators, who will decide for one side or the other, like a judge in a courtroom. Although there are many different forms of arbitration, arbitration typically resembles a trial. Each party has the opportunity to present witnesses and introduce evidence. [12] X Research source You may be represented by an attorney.
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Research defenses. If you are a defendant, you will want to know what defenses can defeat a claim against you. Conversely, if you are a plaintiff or prosecutor, you will want some idea of what a defendant will argue.
- In criminal cases, a defendant usually argues that the government failed to meet its burden of proof beyond a reasonable doubt. A defendant raises reasonable doubt in a variety of ways: by providing an alibi, by undermining the credibility and character of the prosecution's witnesses, and by offering witnesses who contradict the state's evidence.
- A criminal defendant may also admit committing the crime but claim he was excused or justified. Common excuses include insanity or entrapment. The most common justification is self-defense. [13] X Research source
- Civil law provides many more defenses. For example, a breach of contract may be excused because the plaintiff materially breached first. Or a defendant can claim that a plaintiff assumed the risk of injury when she went skydiving.
- Most civil defenses are specific to the cause of action. Run a few keyword searches for the causes of action in a case law database. If you do not have access to LexisNexis or Westlaw, you can use the free Public Library of Law. Look for the most common defenses raised in similar lawsuits.
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Develop a theory of the case. Your theory of the case is what you believed happened and why. You must support each key fact of your case with evidence.
- Your theory must also be based on the law. For example, if you are accused of deliberately crashing into someone's car, your theory of the case may be that the victim was negligent when she backed into the road. Unfortunately, the plaintiff's negligence will not relieve you of liability if you deliberately hit her. Therefore, your “theory of the case” could instead be that you didn't deliberately hit her but only negligently did, or that she deliberately backed into you.
- Your theory should also account for “bad facts.” For example, if you attempted to flee the scene of a crime after hitting someone with your car, that fact could be used to support the inference that you knew you were guilty. However, your theory might be that you fled because you were shaken up and confused by the crash.
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Prepare for court. You should identify with your attorney the witnesses you will call and what testimony you hope to elicit from them. You should also discuss your own testimony, if you intend to testify. Have your attorney do a couple practice runs with you where she asks questions and you formulate answers.
- Dress professionally. You have 3-5 seconds to make a first impression. You want it to be a good one. Wear a suit or a conservative dress, and go easy on the jewelry.
- Behave appropriately. Be sure to stand whenever you speak to the judge (or jury), do not interrupt anyone, and address the judge as “Your Honor” or “Judge” whenever you speak to him or her.
- Take notes. Keep track of what the other party's witnesses say so you will be able to question them more effectively.
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Deliver an opening statement. Your lawyer will provide the jury or judge with a sneak peek of the evidence. An opening statement should not be so long as to bore jurors, but it should efficiently lay out a roadmap of your case.
- The opening statement is also an opportunity for your lawyer to explain “bad facts” up front and hint at how your theory of the case will account for them.
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Present evidence. The evidence should support your theory of the case. The plaintiff or prosecutor goes first. The defendant goes second.
- The bulk of evidence will consist of witnesses and documents. Witnesses must always establish that they have personal knowledge of the events they testify about. [14] X Research source In practice, this means that the witness must establish that she was in a position to observe the events she is testifying to. She can prove this with testimony.
- You must also establish that any document you introduce is what you claim it is. [15] X Research source A witness can testify as to the document's identity.
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Move for directed verdict. If you are the defendant at trial, you can move for directed verdict immediately after the plaintiff or prosecution presents its evidence. If they have failed to meet their burden of proof, you don't even need to present a defense. This is also called a “Judgment as a Matter of Law.”
- In criminal cases, the burden of proof is guilt beyond a reasonable doubt. In civil cases, the burden is typically a “preponderance of evidence,” which means that the evidence must point more in the plaintiff's favor than in the defendant's. [16] X Research source Think of “preponderance” as 50.1% in favor of the plaintiff.
- You can also move for directed verdict at the close of all evidence. At that point, both the plaintiff and the defendant may make the motion.
- Judges will rarely grant a directed verdict. Nevertheless, you don't lose anything by making a motion for directed verdict. Once it is denied, the defendant will then have an opportunity to present evidence.
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Deliver a closing argument to the jury. An effective closing argument should explain how the evidence presented supports your theory of the case. You should open and end strong. Research shows that jurors remember most the first and last things they hear.
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Move for judgment notwithstanding the verdict. Provided you moved for a directed verdict (or its equivalent, judgment notwithstanding the law) before the case was submitted to the jury, you may renew that motion after the jury returns its verdict.
- Now that there is a jury verdict the judge may be more willing to consider your argument.
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Appeal. If you are unhappy with the verdict, then you can move to appeal. You will have to file a Notice of Appeal, which is a form available from the court clerk. Ask for the form.
- You will have to file the Notice of Appeal and send a copy to the other party.
- Appeals are complicated and expensive. If you do not have an attorney, you should meet with one to talk about your options.
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Warnings
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References
- ↑ https://www.nolo.com/legal-encyclopedia/state-courts-venue-rules-govern-29656.html
- ↑ https://www.nolo.com/legal-encyclopedia/statute-of-limitations-state-laws-chart-29941.html
- ↑ https://blog.muddlawoffices.com/mloblog/2012/06/28/utah-defamation-law-attorneys-libel-slander-lawyers/
- ↑ https://www.findlaw.com/injury/accident-injury-law/resolving-your-case-before-trial-court-motions.html
- ↑ https://www.findlaw.com/injury/accident-injury-law/fact-finding-understanding-the-discovery-process.html
- ↑ https://www.findlaw.com/litigation/filing-a-lawsuit/what-is-summary-judgment.html
- ↑ https://www.findlaw.com/injury/accident-injury-law/fact-finding-understanding-the-discovery-process.html
- ↑ https://www.weil.com/~/media/files/pdfs/subpoenas-using-subpoenas-to-obtain-evidence.pdf
- ↑ https://www.law.cornell.edu/rules/frcp/rule_37
- ↑ https://www.exterro.com/blog/e-discovery-sanctions-when-to-hand-out-the-ultimate-punishment-default-judgment/
- ↑ https://www.findlaw.com/adr/mediation/what-is-mediation-.html
- ↑ https://www.findlaw.com/adr/arbitration/what-is-arbitration-.html
- ↑ https://www.sagepub.com/lippmanstudy/state/oh/Ch08_Ohio.pdf
- ↑ https://www.law.cornell.edu/rules/fre/rule_602
- ↑ https://www.law.cornell.edu/rules/fre/rule_901
- ↑ https://www.law.cornell.edu/wex/preponderance_of_the_evidence
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To win a court case, first hire an experienced attorney, preferably one who specializes in the area of your lawsuit. Next, work with your lawyer to research defenses and counter-arguments that can be laid against you. Then develop your theory of the case, explaining what happened and why. Once you go to trial, present evidence, such as documents and witness accounts, to support each of your key facts. For more tips from our Legal co-author, like how to win before going to trial, read on!
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