| Chapter
9
Covering
Civil Courts
By Maurice
Possley
Pre-Trial
Civil cases proceed at a much slower pace than criminal cases, which are driven
largely by speedy trial requirements. It is not uncommon for civil cases to
take three or more years to come to trial if they are not settled. Much of
what happens during the pre-trial stage in civil cases is inconsequential from
a news standpoint and most of the activity is conducted outside of the courtroom.
Much of the pre-trial activity is spent discovering evidence, refining the
respective positions of the plaintiff and defendants, and using legal motions
to shape and focus what evidence will ultimately be allowed at trial. As a
result, there is usually very little in the way of surprises by the time that
a trial actually occurs. This in-depth discovery process also is the reason
many civil cases are settled prior to trial. In some instances, the cost of
litigation becomes significant enough that one side may seek to settle out
of court rather than expend further funds in which may be perceived—as
the evidence is developed—as a questionable or losing case.
For these reasons, civil cases are typically not followed during
the pre-trial stage as closely in the media as are criminal cases.
At the same time, it is for these reasons that many civil cases
do not get the attention or scrutiny they perhaps deserve.
Unless there is a request for an expedited hearing, lawsuits typically
unfold gradually, beginning with the defense filing a motion to
dismiss the lawsuit. This motion to dismiss may present any of
a number of legal arguments as to why the case should not proceed.
These arguments include that the plaintiffs had no legal standing
to bring the case; that the court does not have jurisdiction to
hear the complaint alleged; or that the lawsuit does not state
a proper or legal claim that can be addressed by the court. A motion
to dismiss also may be brought on the ground that the claim or
issue has previously been decided—described by the Latin
phrase res judicata—the civil equivalent of the
double jeopardy clause in criminal law. In essence, a motion to
dismiss by the defense seeks to defeat the complaint on legal—not
factual—grounds.
A lawsuit that survives a motion to dismiss at the outset proceeds
with the defendants filing an answer to the complaint. This is
typically a count-by-count denial of the crucial facts in question.
The plaintiffs may file a reply to the answer. This is typical
of the back and forth nature of pre-trial proceedings in civil
cases and contributes to the lengthy pre-trial period.
The bulk of the pre-trial period is spent by both sides conducting
discovery. Unlike criminal cases generally, lawyers in civil cases
conduct broad inquiries into both sides of the case. The plaintiffs
are required to subject themselves to answer questions under oath—known
as giving a deposition—posed by the defendants.
News In Discovery
Evidence uncovered during the discovery phase of a civil case can be the source
of many and important news stories. There are several high profile examples – tobacco
litigation, Ford/Firestone tire litigation, Phen-Fen class action cases,
and the Catholic priest abuse cases. Each of these cases produced incredible
evidence during discovery–evidence that was obtained by reporters and
which had a dramatic impact on the public. Much of the evidence that is uncovered
during the discovery phase of a civil case is not routinely filed in the
court record. Exceptions to this include the filing of summary judgment motions,
which frequently includes portions of depositions or documents that are relevant
evidence to one side or the other. In some instances, disputes arise over
evidentiary matters that may prompt attorneys for one or both sides to present
the evidence in question in court. Reporters are advised to seek out lawyers
for both sides and ask about evidence that is being developed. Sometimes
lawyers or parties to a lawsuit are more than willing to allow reporters
access to such evidence, providing that there is not a “protective
order”—an order keeping the evidence under seal—in place.
For example, in 2003, the Chicago Tribune obtained copies of pre-trial
depositions in lawsuit brought by a pre-trial detainee alleging that he and
others were beaten by guards in the Cook County Jail. Two jail officers had
been deposed and testified that they saw inmates beaten while handcuffed
and shackled. The news stories about their deposition testimony prompted
grand jury investigations by federal and state authorities, the firing of
guards and numerous changes at the jail—all before the case ever went
to trial.
In a criminal case, a defendant has the right to remain silent
or not to testify and a jury or judge cannot infer anything negative
about this refusal. In a civil case, though, the defendant must
be available and cooperate in depositions as well as be a witness
in the trial. Defendants are required to provide documents and
materials relevant to the case, as well as provide names of people
who may have information that is relevant to the case. And if a
defendant decides to refuse to testify at the trial or to cooperate,
a judge or jury is allowed to make an adverse inference against
the defendant.
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