Or, When Do I Go to Trial?
I get asked that question too often and I thought an outline of what happens in a case as the defendant might make some good reading. I do need to say this outline applies only to cases that are not small claims cases.
You have a summons and a Complaint stuck in your door or handed to you or sent by certified mail. You have been served (think tennis for half a second here) and you are now a defendant in a civil suit. The Indiana Trial Rules have several rules on process and summonses beginning with Rule 4 and going to Rule 4.17. and What happens next?
Well, you can do nothing. Then after twenty or twenty-three days, the Plaintiff (the person suing you) can ask for a default judgment. Take a look at Indiana Consumer Lawyer Blog's very good post on default judgments Default Judgments in Indiana for more detail.
- File an Answer or a motion to dismiss. No Answer can lead to a default judgment, again. If the motion to dismiss is granted, then the case is over. Here is the first method the system has for getting rid of lawsuit. You can file a counterclaim, which is a suit by the defendant against the plaintiff. Once the parties file their Answer, any counterclaims, and any replies to a counterclaim, the next step is discovery.
- Discovery. The Complaint only gives you an outline of why you are being sued and not the facts behind the allegations. Discovery exists to get at those facts. I think discovery is probably the most expensive phase of a case. Lawyers want to know everything there is before we start a trial and we will do our best to get at that information. We can use depositions (Trial Rules 27 to 32), Interrogatories, Motion to Produce Documents, the physical and/or mental examination of persons, and requests for admissions.
- As soon as we can all see the other side's cards, we make a decision if there is a dispute of fact and of law or only of law. If there is a dispute only of law, then a Motion for Summary Judgment gets filed which allows a judge to decide not on the facts but only on the law. Summary judgment motions are the second means of winnowing out weak cases. If the judge does not grant a Motion for Summary, then it is time for trial.
- If a dispute of fact and of law exists and no settlement, then we go off for trial.