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PRE-TRIAL PROCEDURES

Q. What are the defendant's options after being served?
A. At this point, most defendants will hire an attorney to prepare their defense to the suit. The
attorney will need to hear the defendant's version of events and scrutinize the complaint and
summons. If the complaint appears deficient, legally or factually, the defendant may be advised to file one of several motions attacking it.

Q. What is a "motion"?
A. A motion is a formal written or oral request that the court take some specific action. Typical
pre-trial motions might include a defense motion to strike some allegation from the complaint or to dismiss all or part of the complaint because, for example, the issue raised has already been decided in another case or because the plaintiff has no legal right to bring this particular suit. If the service of the summons and complaint was improper (because, for example, the server delivered the documents to the wrong address or to a person 12 years old or younger), the defendant may file a motion to "quash service." In any of these cases, the parties then would be required to attend a preliminary hearing to resolve these issues.
Then the defendant will have a statutorily fixed amount of time in which to file an answer
to the allegations in the complaint.

Q. How much information should the defendant include in the answer?
A. Essentially, the defendant's answer must alert the plaintiff and the court to which allegations
and counts in the complaint he or she is contesting, admitting, or is unable to contest or admit
because of insufficient information. The defendant must respond to each and every alleged fact
and count in the complaint; failure to respond can be interpreted as an admission. In addition, the answer may raise any "affirmative defenses" he or she may have beyond simple denial. If a
defendant raises an "affirmative defense," he or she will be required to prove it if the case goes to trial.
In addition, although an objection that the court lacks jurisdiction to hear a case can be
raised at any time, if the defendant has reason to believe that the court lacks legal authority to hear the case, he or she should raise that issue before filing an answer. Finally, if the defendant believes that the court does not have jurisdiction over him or her, that issue should be raised in a special appearance and determined by the court before any answer is filed.

Q. How does a court determine whether it has jurisdiction to hear the case?
A. In federal court, the plaintiff bears the burden of proving, through citation of relevant statutes
and case law, that the court has jurisdiction to hear his or her case under Article III of the U.S.
Constitution. In most state courts, by contrast, it is up to the defendant to prove that the court does not have jurisdiction under applicable state jurisdictional laws.

Q. What is a motion for change of venue?
A. In addition to ascertaining whether it has jurisdiction to hear the case, a trial court also may be asked to determine whether the case should be heard where it was filed or in a court in some other city, county or state. If the court determines that it would be more appropriate and convenient for the parties if the trial were held somewhere else, the court will permit a "change of venue" to that location. Congress (or, in the case of state courts, the state legislature) determines the rules regarding venue, all of which are designed to ensure that neither party is forced to travel to an unnecessarily inconvenient location to try or defend a lawsuit. In high-profile criminal cases, it is not uncommon for a defendant to seek a change of venue in an effort to find a jury that has not already formed an opinion on the case as the result of heavy local media coverage.

Q. What if the defendant concludes that it is actually the plaintiff who is liable?
A. At this point, the defendant in a civil case, in addition to answering the plaintiff's claim, may
file suit against the plaintiff. This action is known as a "counterclaim." If a counterclaim is filed,
the plaintiff becomes a defendant and will be called on to file an answer to the allegations and
counts contained in the counterclaim.

Q. What if there are other claims or parties that should be involved in the litigation?
A. If the defendant believes that others not named as defendants in the plaintiff's suit are
responsible, in whole or in part, for the plaintiff's injury or loss, he or she may seek to "implead"
those persons, i.e., bring them into the case as additional defendants. If a person who was not
named in the original suit believes he or she should be involved in order to defend his or her
interests, that person may seek to "intervene," i.e., join, the suit as either plaintiff or defendant.
Finally, in multiparty suits, "cross claims" may be filed. For example, one defendant could file a
claim against another defendant. All of these pre-trial procedures are designed to encourage
plaintiffs and defendants to resolve as many of their disputes as possible in a single suit rather than in piecemeal litigation.

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