FREQUENTLY ASKED QUESTIONS ABOUT LITIGATION,
TRIALS, AND APPEALS
Disclaimer: The information contained on this page is not legal advice. The information provided on this website is for general informational purposes and is not necessarily updated to account for changes in the law. You should consult with an attorney for legal advice regarding your individual circumstances.
How do I start a lawsuit?
A lawsuit begins when a party (“the plaintiff”) files a summons and complaint with the clerk of courts in a state or federal court and pays the applicable filing fee. After the summons and complaint are filed, a court-stamped (“authenticated”) copy of each must be served on each defendant within a specified period of time. The summons formally notifies the defendant(s) that they are being sued, and the complaint provides a brief summary of the relevant facts and the legal claims being asserted against each defendant.
How much time do I have to file a lawsuit?
Almost every case is subject to one or more statutes of limitations, which is the specified period of time in which the law allows a party to file a lawsuit. The lawsuit must be filed before the statutes of limitations expires, because any claim filed after that date is subject to dismissal regardless of whether the case had merit. The statute of limitations will vary in length, depending on the nature of the claim being asserted. In addition to a statute of limitations, claims against governmental bodies or personnel are subject to additional notice requirements. The deadline for giving notice of a claim against governmental bodies and personnel typically expires much sooner than the statute of limitations.
I’ve just been served with a lawsuit. What happens next?
The summons will specify the period of time in which a defendant has to file with the court and serve on the opposing party an answer to the complaint. If no answer is filed and served before the deadline, the court may enter a default judgment and grant the plaintiff the relief requested in the complaint, which may include an award of money damages. Persons who have been served with a summons and complaint are encouraged to consult with an attorney as soon as they have been served to ensure that a proper answer is timely served and filed, containing all necessary denials of the allegations in the complaint as well as any appropriate affirmative defenses to the complaint.
I’ve been sued and I have claims against the party who sued me and/or other defendants in the lawsuit. Can I assert those claims in the lawsuit?
If a defendant has claims against the plaintiff, those claims can, and in many cases should, be asserted in a “counterclaim” against the plaintiff. Claims that arise under the same transactions identified in the complaint must in many cases be asserted as counterclaims, or they may be deemed waived. If a defendant has pending claims against other defendants, the claims can, and in some cases should, be asserted in a “cross claim” against the defendant(s). If a defendant believes another party who was not originally named in the lawsuit is liable for the plaintiff’s claim, the defendant may file and serve a third party summons and complaint, which will bring the new party into the lawsuit. Counterclaims, cross claims, and third party complaints are normally filed and served along with an answer to the complaint, although they may be filed at a later date if permitted by statute or under a scheduling order issued by the court. Questions as to whether a potential counterclaim, cross claim or third party claim can or should be brought in a lawsuit should be discussed with your attorney.
Is there a difference between state and federal court?
Each state has its own court system, which operates apart from the court system established by the federal government. In Wisconsin, every county has its own circuit court, with the number of branches/judges roughly commensurate with the county’s population. Circuit courts have general jurisdiction to rule on most types of claims. Appeals from the circuit court are heard by the Wisconsin Court of Appeals and Wisconsin Supreme Court. The federal court system has district courts which preside over cases involving constitutional issues and other federal laws, as well as claims involving citizens of different states with damages sought in excess of $75,000. There are two district courts in Wisconsin (Eastern and Western, based in Milwaukee and Madison), and appeals from those district courts are heard by the 7th Circuit U.S. Court of Appeals and the United States Supreme Court. Lawsuits may be dismissed if they are not filed in the proper jurisdiction.
What is “civil discovery”?
The rules of civil procedure contain tools which enable parties to a lawsuit to engage in discovery to obtain evidence and learn about the opposing party’s case before the lawsuit goes to trial. Parties may take depositions of individuals (whether parties to the lawsuit or third parties), where the witness is required to give answers to questions under oath with a transcript of the testimony prepared by a court reporter. Parties may serve interrogatories, which are questions relating to the case and which must be answered by the other parties under oath. Parties may serve requests for production (or subpoenas on third parties), requiring parties or third parties to produce documents and other tangible items (whether preserved in hard copy, electronic, or in another format) relevant to the case. Discovery is often critical to helping prove your case and responding to evidence and arguments raised by opposing parties.
If I file a lawsuit, will it necessarily go to trial?
Many lawsuits are resolved short of trial. Some cases are resolved through the parties reaching a settlement of all of their issues. Some defendants do not timely answer the complaint, in which case the court may issue a default judgment in favor of the plaintiff. Some cases are dismissed through a pretrial motion (such as a motion to dismiss or a motion for summary judgment), where the court concludes that a party’s claim or defense is not viable for some legal reason.
How is small claims court different from regular civil court?
Smalls claims courts were established to simplify the legal process for people with certain types of claims. In Wisconsin, small claims courts preside over such cases as evictions, replevin actions to recover property valued at $10,000 or less, personal injury and other tort claims with claimed damages of $5,000 or less, and other civil actions for money damages of $10,000 or less. Small claims cases are often assigned to court commissioners for an evidentiary hearing within a short period of time. Small claims trials are conducted informally, often without applying normal rules of evidence, although irrelevant and repetitious evidence or arguments may be excluded. Parties may appeal a court commissioner’s ruling to a circuit court judge by requesting a “trial de novo,” which is essentially a retrial of the issues.
What are mediation and arbitration?
Mediation is a process by which the parties to a dispute meet with an impartial third party (often a retired judge or attorney practicing in that area of law) and attempt to reach a resolution of their issues, usually through settlement offers exchanged through the mediator. Parties are free to mediate at any time, and some courts will require parties in a lawsuit to attempt mediation before trial.
Unlike mediation which is designed to help parties try to settle their dispute voluntarily, arbitration is a process through which the parties will contest their case with evidence and argument presented to one or more arbitrators, instead of a judge or jury. Many contracts contain mandatory arbitration provisions, which typically specify how the arbitrator(s) for the case will be selected and which rules will govern the arbitration. Arbitration can be a more efficient method of settling disputes as compared to a lawsuit. Arbitration rules usually place limits on permissible discovery. At the conclusion of an arbitration hearing, the arbitrator(s) will issue an arbitration award, which may be confirmed in circuit court.
What is the burden of proof to win my case?
The burden of proof in a case will depend on the type of claims involved. Criminal cases have the highest burden of proof, in which the prosecution normally must prove the defendant is guilty beyond a reasonable doubt. Most civil (non-criminal) lawsuits have a “preponderance of the evidence” standard, which essentially means that the evidence supporting the plaintiff’s claim is more likely than not. Some civil claims, such as fraud or punitive damage claims, are subject to the “clear and convincing evidence” standard, which requires more proof than “preponderance of the evidence” but not as much as “beyond a reasonable doubt.”
If my case goes to trial, who will decide the case?
In most but not all cases, either party will have the right to a trial by jury. A jury trial is not available in some types of cases, such as divorces. In civil cases which are eligible to be heard by a jury, if any party requests a jury and pays the applicable jury fees, the case will be tried to a jury. Judges have only limited authority to overturn a jury’s verdict. In cases which are eligible to be heard by a jury but none of the parties request a jury, the case will be heard by a judge.
How will I know when my case will go to trial?
Local practices vary by court. After the lawsuit is filed, the court will issue a scheduling order establishing all critical deadlines for the case. Some judges prefer to hold a scheduling conference shortly after all defendants have answered the complaint. Other judges prefer to wait until one of the parties requests a scheduling conference or the parties have completed most of their discovery. Most courts will provide a trial date at the scheduling conference, although some courts will not schedule a trial date until the pretrial conference, by which time the case is essentially ready for trial. The trial date will depend on the schedule of the court, attorneys, and parties, with the length of trial (number of days or weeks) estimated by the attorneys based on their knowledge of the case and experience in similar cases.
After the case goes to trial, is it over?
Following trial, the court will enter a judgment in favor of one or more parties, depending on the outcome at trial. The parties who prevail at trial are normally entitled to recover certain costs associated with the lawsuit, and those costs are included in the judgment (referred to as "taxable costs"). Once judgment is entered, a party dissatisfied with the judgment may have the right to appeal the judgment to the Court of Appeals, if he or she believes errors or mistakes were made by the judge or the jury.
If I’m awarded money in the judgment, will I get paid right away?
In some cases, shortly after judgment is entered, a party found liable (or an insurance company) will pay the judgment. When that happens, the party paying the judgment is entitled to a satisfaction of judgment, confirming that their liability for the judgment has been satisfied. Although a judgment is payable upon entry of the judgment, some parties will ask the court to enter a stay of any collection proceedings until after any appeals have been exhausted. Whether to grant a stay is left to the court’s discretion. If a party owes money under a judgment and refuses to pay it, the party owning the judgment may pursue collection remedies through various procedures. These include garnishment of the defendant’s wages or bank accounts, placing a lien against the defendant’s real estate, and requiring the defendant to testify under oath regarding their income and assets at a supplemental examination.
TRIALS, AND APPEALS
Disclaimer: The information contained on this page is not legal advice. The information provided on this website is for general informational purposes and is not necessarily updated to account for changes in the law. You should consult with an attorney for legal advice regarding your individual circumstances.
How do I start a lawsuit?
A lawsuit begins when a party (“the plaintiff”) files a summons and complaint with the clerk of courts in a state or federal court and pays the applicable filing fee. After the summons and complaint are filed, a court-stamped (“authenticated”) copy of each must be served on each defendant within a specified period of time. The summons formally notifies the defendant(s) that they are being sued, and the complaint provides a brief summary of the relevant facts and the legal claims being asserted against each defendant.
How much time do I have to file a lawsuit?
Almost every case is subject to one or more statutes of limitations, which is the specified period of time in which the law allows a party to file a lawsuit. The lawsuit must be filed before the statutes of limitations expires, because any claim filed after that date is subject to dismissal regardless of whether the case had merit. The statute of limitations will vary in length, depending on the nature of the claim being asserted. In addition to a statute of limitations, claims against governmental bodies or personnel are subject to additional notice requirements. The deadline for giving notice of a claim against governmental bodies and personnel typically expires much sooner than the statute of limitations.
I’ve just been served with a lawsuit. What happens next?
The summons will specify the period of time in which a defendant has to file with the court and serve on the opposing party an answer to the complaint. If no answer is filed and served before the deadline, the court may enter a default judgment and grant the plaintiff the relief requested in the complaint, which may include an award of money damages. Persons who have been served with a summons and complaint are encouraged to consult with an attorney as soon as they have been served to ensure that a proper answer is timely served and filed, containing all necessary denials of the allegations in the complaint as well as any appropriate affirmative defenses to the complaint.
I’ve been sued and I have claims against the party who sued me and/or other defendants in the lawsuit. Can I assert those claims in the lawsuit?
If a defendant has claims against the plaintiff, those claims can, and in many cases should, be asserted in a “counterclaim” against the plaintiff. Claims that arise under the same transactions identified in the complaint must in many cases be asserted as counterclaims, or they may be deemed waived. If a defendant has pending claims against other defendants, the claims can, and in some cases should, be asserted in a “cross claim” against the defendant(s). If a defendant believes another party who was not originally named in the lawsuit is liable for the plaintiff’s claim, the defendant may file and serve a third party summons and complaint, which will bring the new party into the lawsuit. Counterclaims, cross claims, and third party complaints are normally filed and served along with an answer to the complaint, although they may be filed at a later date if permitted by statute or under a scheduling order issued by the court. Questions as to whether a potential counterclaim, cross claim or third party claim can or should be brought in a lawsuit should be discussed with your attorney.
Is there a difference between state and federal court?
Each state has its own court system, which operates apart from the court system established by the federal government. In Wisconsin, every county has its own circuit court, with the number of branches/judges roughly commensurate with the county’s population. Circuit courts have general jurisdiction to rule on most types of claims. Appeals from the circuit court are heard by the Wisconsin Court of Appeals and Wisconsin Supreme Court. The federal court system has district courts which preside over cases involving constitutional issues and other federal laws, as well as claims involving citizens of different states with damages sought in excess of $75,000. There are two district courts in Wisconsin (Eastern and Western, based in Milwaukee and Madison), and appeals from those district courts are heard by the 7th Circuit U.S. Court of Appeals and the United States Supreme Court. Lawsuits may be dismissed if they are not filed in the proper jurisdiction.
What is “civil discovery”?
The rules of civil procedure contain tools which enable parties to a lawsuit to engage in discovery to obtain evidence and learn about the opposing party’s case before the lawsuit goes to trial. Parties may take depositions of individuals (whether parties to the lawsuit or third parties), where the witness is required to give answers to questions under oath with a transcript of the testimony prepared by a court reporter. Parties may serve interrogatories, which are questions relating to the case and which must be answered by the other parties under oath. Parties may serve requests for production (or subpoenas on third parties), requiring parties or third parties to produce documents and other tangible items (whether preserved in hard copy, electronic, or in another format) relevant to the case. Discovery is often critical to helping prove your case and responding to evidence and arguments raised by opposing parties.
If I file a lawsuit, will it necessarily go to trial?
Many lawsuits are resolved short of trial. Some cases are resolved through the parties reaching a settlement of all of their issues. Some defendants do not timely answer the complaint, in which case the court may issue a default judgment in favor of the plaintiff. Some cases are dismissed through a pretrial motion (such as a motion to dismiss or a motion for summary judgment), where the court concludes that a party’s claim or defense is not viable for some legal reason.
How is small claims court different from regular civil court?
Smalls claims courts were established to simplify the legal process for people with certain types of claims. In Wisconsin, small claims courts preside over such cases as evictions, replevin actions to recover property valued at $10,000 or less, personal injury and other tort claims with claimed damages of $5,000 or less, and other civil actions for money damages of $10,000 or less. Small claims cases are often assigned to court commissioners for an evidentiary hearing within a short period of time. Small claims trials are conducted informally, often without applying normal rules of evidence, although irrelevant and repetitious evidence or arguments may be excluded. Parties may appeal a court commissioner’s ruling to a circuit court judge by requesting a “trial de novo,” which is essentially a retrial of the issues.
What are mediation and arbitration?
Mediation is a process by which the parties to a dispute meet with an impartial third party (often a retired judge or attorney practicing in that area of law) and attempt to reach a resolution of their issues, usually through settlement offers exchanged through the mediator. Parties are free to mediate at any time, and some courts will require parties in a lawsuit to attempt mediation before trial.
Unlike mediation which is designed to help parties try to settle their dispute voluntarily, arbitration is a process through which the parties will contest their case with evidence and argument presented to one or more arbitrators, instead of a judge or jury. Many contracts contain mandatory arbitration provisions, which typically specify how the arbitrator(s) for the case will be selected and which rules will govern the arbitration. Arbitration can be a more efficient method of settling disputes as compared to a lawsuit. Arbitration rules usually place limits on permissible discovery. At the conclusion of an arbitration hearing, the arbitrator(s) will issue an arbitration award, which may be confirmed in circuit court.
What is the burden of proof to win my case?
The burden of proof in a case will depend on the type of claims involved. Criminal cases have the highest burden of proof, in which the prosecution normally must prove the defendant is guilty beyond a reasonable doubt. Most civil (non-criminal) lawsuits have a “preponderance of the evidence” standard, which essentially means that the evidence supporting the plaintiff’s claim is more likely than not. Some civil claims, such as fraud or punitive damage claims, are subject to the “clear and convincing evidence” standard, which requires more proof than “preponderance of the evidence” but not as much as “beyond a reasonable doubt.”
If my case goes to trial, who will decide the case?
In most but not all cases, either party will have the right to a trial by jury. A jury trial is not available in some types of cases, such as divorces. In civil cases which are eligible to be heard by a jury, if any party requests a jury and pays the applicable jury fees, the case will be tried to a jury. Judges have only limited authority to overturn a jury’s verdict. In cases which are eligible to be heard by a jury but none of the parties request a jury, the case will be heard by a judge.
How will I know when my case will go to trial?
Local practices vary by court. After the lawsuit is filed, the court will issue a scheduling order establishing all critical deadlines for the case. Some judges prefer to hold a scheduling conference shortly after all defendants have answered the complaint. Other judges prefer to wait until one of the parties requests a scheduling conference or the parties have completed most of their discovery. Most courts will provide a trial date at the scheduling conference, although some courts will not schedule a trial date until the pretrial conference, by which time the case is essentially ready for trial. The trial date will depend on the schedule of the court, attorneys, and parties, with the length of trial (number of days or weeks) estimated by the attorneys based on their knowledge of the case and experience in similar cases.
After the case goes to trial, is it over?
Following trial, the court will enter a judgment in favor of one or more parties, depending on the outcome at trial. The parties who prevail at trial are normally entitled to recover certain costs associated with the lawsuit, and those costs are included in the judgment (referred to as "taxable costs"). Once judgment is entered, a party dissatisfied with the judgment may have the right to appeal the judgment to the Court of Appeals, if he or she believes errors or mistakes were made by the judge or the jury.
If I’m awarded money in the judgment, will I get paid right away?
In some cases, shortly after judgment is entered, a party found liable (or an insurance company) will pay the judgment. When that happens, the party paying the judgment is entitled to a satisfaction of judgment, confirming that their liability for the judgment has been satisfied. Although a judgment is payable upon entry of the judgment, some parties will ask the court to enter a stay of any collection proceedings until after any appeals have been exhausted. Whether to grant a stay is left to the court’s discretion. If a party owes money under a judgment and refuses to pay it, the party owning the judgment may pursue collection remedies through various procedures. These include garnishment of the defendant’s wages or bank accounts, placing a lien against the defendant’s real estate, and requiring the defendant to testify under oath regarding their income and assets at a supplemental examination.