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Civil Cases – Return to Table of Contents

Civil cases are those in which individuals, corporations or government agencies seek to recover damages, enforce their rights or otherwise protect a legal interest from interference by another. Essentially, the civil law enables people to assert or defend their rights in an orderly, nonviolent manner and enables them to resolve legal disputes in a fashion which society finds acceptable.

As might be imagined, civil cases encompass a broad range of legal subjects, such as breach of contract, injury to person or property, divorce proceedings and a contest of the validity of a will. In contrast, criminal cases involve a prosecution for violations of statutes that define particular crimes, such as murder or robbery. Because criminal conduct is a breach of the public order and a violation of the public interest, the prosecution is brought on behalf of the people by the state or federal government.

The purpose of a civil case will vary depending on the nature of the matter involved. For example, if a person hurt in an automobile accident were to bring an action against the other driver, the object would be to recover damages for the physical injury suffered. Similarly, in a case involving breach of contract, the wronged party might seek to recover money damages caused by the breach or, if feasible, seek to have the other party fulfill the terms of the contract. Or, if a person is trespassing on the property of another, the owner might seek an injunction to prevent that conduct from happening again. Thus, many remedies are available, with the appropriate choice depending upon the circumstances involved.

A civil case develops in accordance with procedures that enable it to progress in a logical manner. Assume, for example, that a person believes he has been injured or damaged by another and consults an attorney. The lawyer will first obtain the necessary information from the client, including all facts and circumstances that may serve as the basis for a legal action. The attorney may then take statements of witnesses, secure pertinent documents (e.g., medical reports) and research the applicable law to determine if the client has a valid case.


Pleadings are written documents that enable the parties to present the significant facts concerning each side of the case to the court. The complaint, for example, indicates the nature of the plaintiff’s case by setting forth the allegations concerning the claim against the defendant and the relief demanded.

After receiving the complaint, the defendant is required to submit a responsive pleading called an answer. In the answer, the defendant may admit or deny the various allegations made by the plaintiff and raise any defenses that might be appropriate. Any claim the defendant wishes to make against the plaintiff may be included with the answer and is known as a counterclaim. For example, if two individuals were involved in an automobile accident, the plaintiff might bring an action against the defendant for personal injuries and damage to the vehicle. It might be the defendant’s position, however, that the plaintiff was responsible for the accident. In such a case, the defendant might wish to file an action for injuries against the plaintiff, which could be included with the answer as a counterclaim. This process enables related claims to be heard together, rather than requiring the parties to litigate the same incident twice in separate cases.

If several defendants are involved in an action, one defendant may claim against another defendant by what is known as a cross-claim. A defendant who desires to claim against a person not already a party to the action, who may be liable to the defendant for all or part of the plaintiff’s claim, may file a third-party complaint, where, for example, the plaintiff purchases an item of equipment that proves to be defective and institutes an action against the merchant who sold the item, the merchant might assert that the equipment was improperly constructed, and thus would file a third-party complaint against the manufacturer.

If a counterclaim is filed against the plaintiff, a reply to the allegations is required. Where a third-party complaint has been made, the party served must file an answer. In this manner, the position of all parties is made known to the court.

If the defendant fails to appear after having been served with the summons and complaint or fails to file a responsive pleading, the plaintiff may then be able to secure a default judgment, since the defendant is acknowledging liability by not responding. If the plaintiff seeks a specified amount of money damages that can be readily computed (or money due on an unpaid promissory note), a judgment for that amount, plus interest and costs, may be obtained. If the claim is not for a certain sum or cannot be computed, then the court will take proof on the question of damages, which it will then determine.

After the pleadings have been filed, it may be necessary to modify, correct or supplement them. Defects also may be present in a party’s case which entitle the other side to relief. Such matters are usually resolved by means of motions that are heard and decided by the court. For example, a defendant’s attorney, after reviewing the complaint, may want more specific information concerning the allegations. In that event, the attorney would request a bill of particulars from the plaintiff’s lawyer, specifying the desired items. By means of various motions, the parties may be able to establish the issues or determine points of dispute which otherwise would have to be resolved by trial, or terminate a case that is legally insufficient. In a personal injury action, for example, the defendant is entitled to information about the date and approximate time of the occurrence, a statement of the injuries and a description of those claimed to be permanent.

Upon reviewing this information, the defendant’s attorney may discover that the plaintiff cannot succeed in the action, as, for example, when the plaintiff’s pleadings are defective or the time limit for filing the particular action has expired. In such an instance, the defendant would be entitled to move for dismissal, bringing the case to a conclusion without a trial.


Disclosure is the process of obtaining facts or information to help attorneys prepare for trial. By such proceedings, attorneys may obtain copies of pertinent documents, view physical evidence or, where relevant, request that a party undergo a physical or mental examination.

A party also may take the depositions of other parties or witnesses, which typically involves questions that are both asked and answered orally under oath. The attorneys for both sides have an opportunity to question the individual whose deposition is being taken, and the questions and responses are recorded by a stenographer. In some instances, when a potential witness is located out-of-state, written questions (called interrogatories) are used.

In this way, the attorneys are informed of the testimony that various individuals may be expected to give at the trial, possibly enabling them to resolve some of the issues before trial. Also, under certain circumstances, the deposition may be introduced at trial if the witness is unavailable to testify or makes contrary statements at the trial.


After the pleadings have been filed, motions decided and disclosure of evidence completed, the attorneys will meet with the court before the trial takes place. At this meeting, the attorneys may stipulate which items they agree upon and also clarify those areas where there is dispute.

The pretrial conference helps to ensure that only the relevant issues will be raised at the trial. The conference may also disclose grounds for a reasonable settlement between the parties without having to resort to trial. If settlement is not possible, the case will go to trial.

A comparison of civil and criminal trials reveals many areas where procedures are similar, but also several where they differ. Regardless of procedural differences, criminal and civil trials share a common purpose– affording a fair and impartial hearing to both sides. This objective can be achieved only through organized and established procedures.

Essentially, a trial is a means of resolving a dispute between two parties in a civil case or of determining the guilt or innocence of an accused in a criminal case. Both situations involve a disagreement between the parties concerning the facts at issue or the legal principles governing the matter, or both.

A civil case may involve such questions as whether an injury was negligently caused, a contract breached or an item that was purchased is defective. In a criminal case, the dispute is whether the defendant committed the offense charged.

Not all cases are tried by a jury. In some kinds of cases, neither party has a right to a trial by jury; even when a right to a jury exists, it may be waived by the parties in a civil action or by the defendant in a criminal prosecution, other than one for first-degree murder.

In a trial before a jury, the jury is responsible for making the factual determination. To ensure that the jury reaches its decision fairly and according to established legal principles, a judge presides over the trial. The judge will rule on questions of law, objections, the admissibility of evidence and other procedural matters.

After both sides have completed their proof, the judge instructs the jury concerning the applicable law. If there is no jury, the judge alone will both determine the facts and rule on questions of law.

Court personnel assist the judge in the orderly conduct of the trial. The court clerk, at the beginning of the trial, draws the names of prospective jurors and administers an oath to them.

Court officers or attendants maintain order in the courtroom and perform other services assigned by the judge, which can include calling witnesses or taking charge of the jury when it is not in the courtroom. In this latter regard, court attendants perform an important function by ensuring that no one talks to the jurors or attempts to influence them in any way.

The court reporter, or stenographer, has the duty of recording all proceedings in the courtroom. This record includes the testimony of witnesses, all objections and motions made by the attorneys and rulings made by the judge. The stenographer also records the judge’s instructions (or charge) to the jury concerning the law. In addition, the court reporter marks for identification any exhibits and notes their receipt into evidence, if the judge rules them admissible.

The attorneys are responsible for representing their clients and presenting the evidence for their respective sides, so that the jury or judge may reach a just result. In this context, the role of the attorney may be misunderstood, especially in a criminal case. Lawyers have an obligation to represent their clients competently, safeguarding the client’s rights and interests. In a criminal case, the accused has a constitutional right to representation by counsel and is cloaked with the presumption of innocence until proven guilty beyond a reasonable doubt. Our system of justice could not function properly unless attorneys were willing to represent clients or causes considered unpopular by the general public. Consequently, an attorney may ethically represent an accused person whom the community assumes is guilty, since that individual is entitled to every protection afforded by both the state and federal constitutions.


Similar procedures are followed in both civil and criminal cases to select a jury. To qualify as a trial juror, a person must be a United States citizen, over the age of 18 and a resident of the county in which the trial is held. Prospective jurors also must be able to understand and communicate in English and must not have any felony convictions.

The names of prospective jurors are selected at random from lists of registered voters, state and local taxpayers, licensed drivers, people on public assistance and people receiving unemployment compensation. The trial jury in New York is known as the petit jury, and the prospective jurors for each term of court are drawn at random by the commissioner of jurors from the names obtained from the above sources.

In January 1996, occupational exemptions from jury service in the State of New York were repealed so that today everyone – including lawyers, doctors, public officials, judges and others previously exempted – may be required to serve as jurors. Occasionally, an attorney may object to an entire panel of prospective trial jurors. This is known as a challenge to the panel and is usually directed at its composition, alleging that members of a particular group have been systematically excluded from jury service.

In criminal cases, a jury of 12 persons is required for felonies, while 6 is the number fixed for misdemeanor trials. In both types of cases, provisions are made for alternate jurors to replace a regular juror who may become ill or disabled during trial. In a civil case, the trial jury is composed of 6 persons, with provision for the selection of alternate jurors.

The trial jury is selected from the group previously described. A panel is called, and they take their place in the jury box (criminal) or impaneling room (civil). A process known as voir dire then takes place in which the attorneys, and sometimes the judge, describe the nature of the case and ask questions to determine the suitability of the jurors. For example, a juror who is related to one of the parties or who has personal knowledge of the case may be unable to judge the evidence impartially.

In criminal cases, the judge presides over the voir dire, which is conducted in a courtroom. In civil cases, the voir dire may be supervised by a judge but usually is subject to general supervision by a judicial hearing officer (retired judge) in a courtroom or, more often, in an impaneling room.

During the course of questioning the jurors about their qualifications, it may become apparent that a particular juror possesses a bias, prejudice or opinion which will affect his ability to judge the evidence impartially. In a criminal case involving the sale of narcotics, for example, a prospective juror may assert his belief that such activities are proper and that the criminal law should not be enforced. Under such circumstances, the juror could be challenged for cause. The number of challenges that may be made for cause is unlimited in both civil and criminal cases.

In addition, each party has the right to exercise a certain number of peremptory challenges, which allows an attorney to excuse a juror without having to state a reason. The number of peremptory challenges is fixed by law and varies according to the type of case. In a criminal case, each party may have as many as 20 peremptory challenges, depending on the seriousness of the crime charged; in a civil case being tried in Supreme Court or a county court, each side has at least 3 such challenges.

The voir dire continues until the attorneys for both parties are satisfied with the composition of the jury or have exhausted all challenges permitted by law. Once the full jury and alternates have been selected, they will be administered an oath and the trial may then proceed.


After the jury has been selected and before any evidence is offered, the attorney for each party is entitled to make an opening statement. Generally, the party having the burden of proof (usually the plaintiff) opens first. In these statements, attorneys normally will outline their respective cases and possibly indicate some of the witnesses who will be called to testify, so that the jurors may more easily follow the proof as it is introduced.

After the opening statements, the presentation of evidence begins. The plaintiff will call witnesses to testify and, in conjunction with such testimony, may offer into evidence pertinent exhibits such as reports or photographs.

Witnesses may testify about matters of fact–that is, anything perceived by means of their physical senses. Testimony usually concerns what the witnesses observed, such as what occurred at the scene of an automobile accident. As part of their testimony, witnesses may be asked to identify photographs, documents or other physical exhibits.

Witnesses, however, usually cannot state an opinion or give a conclusion, unless they are experts or otherwise qualified to do so. Such opinion evidence generally is provided by persons with specialized training, such as doctors or engineers. A witness qualified as an expert in a particular field may give an opinion based on the facts in evidence and state the basis for the opinion. In some instances, a layperson may be able to testify concerning a matter of opinion if the subject lies in an area of common knowledge, such as whether a particular person was intoxicated.

An attorney usually may not ask leading questions (i.e., those suggesting the desired answer, such as “Isn’t it true that . . .”) of his own witness. This insures that the jury hears the facts as the witness recalls them.

The opposing counsel may object to a particular question on various grounds, such as calls for an opinion, is leading or is immaterial to the case. Objections are based upon rules of evidence, and the judge will decide them. If the objection is overruled, the witness may answer the question; if it is sustained, he need not. Frequently, the attorney will rephrase the question to overcome the objection.

When the plaintiff’s attorney completes his direct examination of the witness, the defendant’s attorney may then cross-examine concerning those matters covered on direct examination. On cross-examination, leading questions may be asked to establish any inaccuracies or inconsistencies in the facts as related by the witness. During cross-examination, the opposing counsel is permitted to object to any questions that may be improper, and the judge will rule on them in the same manner as on direct examination.

After cross-examination has been completed, the attorney who called the witness has the right to ask questions on redirect examination. Generally, the purpose of these questions is either to strengthen the testimony of a witness which was weakened by cross-examination or to elaborate on new facts that arose on cross-examination.

At times during a trial, disputes may arise concerning a question of law or legal procedure. On such occasions the attorneys may approach the bench and confer with the judge out of the hearing of the jury. Or, the judge may send the jurors from the courtroom while he listens to the legal argument and rules on the matter in question. The jury is excluded from these sessions to avoid being prejudiced or otherwise influenced by a discussion of matters not in evidence.

After completing his testimony, including direct and cross-examination, the witness will be excused and the next one will be called. This process is repeated until all the plaintiff’s witnesses have been heard, at which time the attorney will advise the court that the plaintiff rests.

At this point, the judge, outside the presence of the jury, will entertain motions from the attorneys. The defendant’s attorney, for example, may move for a dismissal if he believes that the plaintiff has failed to establish a case. The judge may then rule on the motions or reserve decision–that is, wait until some later time to decide the motion. If he sustains a motion to dismiss, the case will be concluded. If the judge denies a dismissal motion, the trial will continue, and the defendant then has the opportunity to present evidence on his behalf.

The defendant, in presenting proof, follows the same procedures and rules for the examination of witnesses and introduction of exhibits as were applied to the plaintiff. The sequence of direct and cross-examination of witnesses is the same as for the plaintiff’s case.

After the defendant’s case has been concluded, the court will then hear and rule on any motions the parties wish to make. As before, the motions are argued and decided outside the presence of the jury. If a dismissal motion is granted at this point, the case will be concluded. If denied, the case is then almost ready for submission to the jury.

The attorneys are entitled to make closing statements to the jury, commenting upon the exhibits and testimony which the jurors have seen and heard. These closing arguments are made in inverse order of the opening statements. Thus, the attorney for the plaintiff, who has the burden of proof, usually opens first and is the last to give a closing statement. Should an attorney comment improperly on the evidence, the lawyer for the other party may object; if the objection is sustained, the judge will instruct the jury to disregard the improper remarks.

When the attorneys have finished their statements, the judge charges the jury concerning the applicable law. In giving these instructions, the judge outlines the issues the jury should consider and defines any legal terms, as appropriate. The jurors are told of the possible verdicts that can be returned, depending on the factual findings made. They are advised that they are the sole judges of the facts and the credibility of the witnesses, and that their verdict must be based upon a preponderance of the credible evidence.

After the judge has completed his charge, the jury is then taken to the jury room to deliberate. Court officers or attendants will wait outside the jury room to ensure that no one attempts to tamper with the jury. During the course of its deliberations, the jury may request that portions of the testimony or the judge’s charge be reread to refresh its collective memory. In such instances, the jury will be returned to the courtroom, with counsel for the parties present.

The jury’s verdict need not be unanimous in civil cases, since agreement by five of the six jurors is all that is required. If five of the jurors cannot agree after deliberating for as long as the judge deems reasonable, he will then discharge the jury and direct that a new trial be held before another jury.


As part of the initial review, the attorney may have to determine whether the action is timely, especially if the client has waited a number of years before seeking legal assistance. Because the memories of witnesses dim and evidence may be lost with the passage of time, a statute of limitations fixes the time period within which actions may be brought. The limitation varies with the type of case.

For example, most actions to recover damages for personal injury or injury to property must be begun within three years from the date of injury; cases involving contractual obligations must be brought within six years or, with respect to some contracts, within four years from the date of breach; and an action based upon libel or slander must be commenced within one year.

Under certain circumstances, the time period to bring an action may be extended, as, for example, in cases involving the infancy (i.e., status as a minor) or insanity of the injured party. In some situations, the time may be extended if the potential defendant has left the state or is residing in the state under a false name unknown to the injured person.


The parties to a civil case may appeal based on errors committed at trial. In a criminal case, a defendant may appeal the conviction, but the prosecution may not appeal a not-guilty verdict because the principle of constitutional double jeopardy bars a defendant from being tried for the same offense after an acquittal. Generally, the basis for an appeal rests on possible errors of law or procedure during trial, including prejudicial statements made by opposing counsel.

The appellate process is governed by statute and rules established by the appellate courts, including the fixing of time limits for the filing of papers. The party appealing is called the appellant, and the other party is designated the respondent.

So that the appellate court will have full knowledge of the case and the claimed errors, the parties must submit a record on appeal to the court. This record consists of a transcript of the testimony, plus other pertinent papers which were part of the proceedings in the lower court, such as an indictment in a criminal case or the pleadings in a civil case.

The attorneys for the appellant and respondent then prepare and submit briefs in support of their respective positions. The appellant’s brief will describe the errors upon which he is seeking reversal of the lower court’s determination, citing relevant statutes or prior similar cases, known as precedents, in support of his argument. The respondent will submit a brief similar in form, outlining the legal authorities favorable to his position.

In some instances, the parties will submit the case to the appellate court for a decision based upon the record and briefs that have been filed. On other occasions, they will also argue the case orally before the appellate court, especially if the issues are novel or complex.

The appellate court will then consider the case in light of the applicable law. If no errors are found or if the errors claimed are insubstantial or harmless, the appellate court will affirm the decision of the lower court. If prejudicial error is found, the appellate court will reverse the lower court decision and correct the error or remand the case to the lower court for appropriate action consistent with the opinion of the appellate court, including retrial of the case where warranted.

Appeals are not limited to challenging the outcome of a trial. Errors of law committed in other situations may also be appealed. For example, a defendant in a criminal case may appeal an illegal or excessive sentence imposed after a guilty plea, which eliminated the need for a trial.

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