Civil Procedure

What is Civil Procedure?

Civil procedure (or Civ Pro as you'll call it in law school) involves the process of bringing a legal claim in court. But as you might imagine, once you feel wronged, you don't simply march into the nearest courthouse demanding to see a judge. This chapter will help you understand the process of deciding which court to use, the process of starting the lawsuit, and the steps along the path to a verdict.


I feel like a good starting point is learning whether or not a court has authority to even hear a case. We call this jurisdiction. There are several types of jurisdiction, but we'll focus on just a couple.

  1. Personal Jurisdiction. Generally, a court has personal jurisdiction over those that reside within the court's geographic boundaries. By living in Rexburg, I am subject to the jurisdiction of the state courts of Idaho. But what if I was sued in a Florida court while living here? Could I be sued in a Florida state court after I hit a student from Orlando, FL last summer? The answer is, well, probably not. But the answer depends on some other factors such as whether I accepted to be sued in Florida or if I spend a substantial time in Florida. Things get a little more interesting if the defendant is a business. A court can exercise personal jurisdiction over a business in three places: where the business is headquartered, the state where it is incorporated or registered, and any state where it conducts substantial business. When a defendant conducts substantial business over the internet or there is some interactivity over the internet, state courts may exercise personal jurisdiction. Whether the defendant is a person or a business, a court can exercise personal jurisdiction over an out-of-state defendant so long as the defendant has "minimum contacts" with the state where the court is located. Most state's minimum contacts laws include committing a tort (an injury) within the state or doing business in that state.
  2. Subject Matter Jurisdiction. A more complex issue involves subject matter jurisdiction. While states have courts that only have jurisdiction only over certain subjects (such as Delaware's business courts that only hear cases involving topics such as breach of contracts), we will primarily focus on federal court subject matter jurisdiction.

At this stage, it's important to remember that unlike most countries, the United States has two court systems - state and federal. This means that here in Idaho, we have a state trial court, appeals courts, and Supreme Court. If you are sued and lose at trial court, you can appeal to the appeals court. If you lose again, you can appeal to the Idaho Supreme Court. Similarly, we in southeast Idaho have a federal system that includes a district court (the federal equivalent of a trial court) in Pocatello, a federal appeals court in San Francisco, and the U.S. Supreme Court in Washington D.C.

The following image will be important in your study of jurisdiction:

As you can see, state courts can hear almost any kind of case. The only cases state courts can not hear are those listed as exclusive to federal courts. The overlapping area, concurrent jurisdiction, is interesting because in these cases, the lawsuit can be heard in either state or federal courts. In order to be heard in federal court, the case must either involve a federal question, or meet the diversity of citizenship requirement. 

Let's start with federal questions. Federal question cases require an interpretation of the U.S. Constitution, a federal statute, or a federal treaty. For example, suppose a plaintiff alleges that a Utah law infringes her First Amendment religious freedom rights. Because the case raises a federal question (the interpretation of the law and its constitutionality), both state and federal courts have the jurisdiction to hear it. 

Diversity of citizenship can be a bit more tricky because it must satisfy two conditions: (1) the plaintiff(s) cannot reside in the same state as the defendant(s) and (2) the claim must seek more than $75,000 in damages. Remember that all plaintiffs must be from different states than all the defendants. Also remember that a business can have more than one state of residency. 


Once a case is in the right court (federal or state), venue determines which trial court will hear the case. There are many trial courthouses in Idaho. Venue involves determining which trial courthouse is most appropriate. Usually, the trial court in the county where the defendant resides is the appropriate venue. So if I hit a pedestrian while driving in Rexburg, chances are that the case will be heard in the Rexburg courthouse (a state court). 

But suppose that the person I hit was from Orlando, FL and that she sustained injuries of $100,000. Notice that the plaintiff can also bring the lawsuit against me in the federal courthouse in Pocatello because we are residents of different states and the claim is for more than $75,000, thus meeting all the requirements of diversity of citizenship. Because the Pocatello courthouse is the closest federal court to the place of injury, it would also be an appropriate venue in the federal system.


A plaintiff that has the legal right to bring a claim in court has standing, also known as standing to sue. To have standing, the person must have been the person injured and the outcome of the case must personally affect him or her. 

Imagine that you love the new soda shop in town (because apparently you can’t have enough of those in southeast Idaho), and are devastated to hear that it had to shut down after an employee embezzled all of its profits. In your anger, you file a lawsuit against the employee for taking away your precious “Tickled Pink,” “Eternal Companion,” or “FlaMango” that you’ve so desperately desired since the company’s closing. You may feel that you’ve been wronged, but the law disagrees. Rather, only the owner can bring the lawsuit against the employee. Hence, only the owner has standing to sue in this situation.

The Steps of Civil Litigation

When a lawsuit commences, the parties file motions and conduct discovery. These documents vary widely in each case, but every lawsuit will begin with the same document - a complaint. 


The first documents filed with the court are known as pleadings. These include the plaintiff's complaint followed by the defendant’s answer. The complaint outlines the plaintiff's allegations against the defendant and the remedy requested (usually a sum of money). In the answer, the defendant will usually deny all of the allegations. These documents are typically sparse on details. 

A case can be won based solely on the pleadings in two situations. If the defendant fails to respond, the judge may grant a default judgement, awarding the plaintiff everything he or she requested. In the second situation, the defendant may argue that even assuming everything the plaintiff alleges is true, the law cannot grant the plaintiff's desired outcome. This may be because the court does not have jurisdiction or because the plaintiff did not make allegations sufficient to state a legal claim.

By way of example, suppose Peggy sues Dan for assault. To bring a lawsuit for assault, a plaintiff must allege that the defendant credibly threatened actual bodily harm. It requires both that the defendant intended to cause apprehension of harmful or offensive contact and that the plaintiff experienced apprehension of harmful or offensive contact. So, if in the complaint, the plaintiff does not allege to have experienced the requisite apprehension, the defendant could move to dismiss the complaint. 

A complaint may also be dismissed if it wasn't filed within the statute of limitations. The statute of limitations are deadlines within which a plaintiff must bring a lawsuit. For example, in many states a lawsuit for a breach of contract must be brought within 5 years of the alleged breach. If the plaintiff waits 5 years and 1 day, the defendant will likely ask the court to dismiss the lawsuit because it was not brought within the statute of limitations.


If there is a dispute as to the facts of the case, the parties will begin the discovery process. During discovery, each side tries to get as much information as possible from the other party. Both the plaintiff and defendant are required to give information to the other side, thus eliminating the once-common game of trying to surprise the other side in trial. The basic idea is to inform the other side what evidence may be shown in trial, who the witnesses are, and the specific issues at play. 

There are several methods of discovery. One party may depose a witness for the other side. In a deposition, the witness is placed under oath and then is required to answer a number of questions posed by the attorney on the other side. The answers are recorded and may be used in trial. 

Interrogatories are another method of discovery. Interrogatories are a series of written questions posed to a witness or party to the litigation. Answers are written and submitted in response to the interrogatories, which may be used in trial. 

Each party is entitled to inspect financial reports, documents, records, or other physical evidence in the possession of the other party. This is a broad power and parties can sometimes inspect these records even if they will not be admissible in court when the trial begins.

Pretrial and Trial

The court may hold pretrial conferences to clarify issues and set a timetable for discovery and the subsequent trial. The court will also typically hold a pretrial conference to determine if the parties can work out the issues and avoid trial altogether. Most cases are settled before trial. 

At trial, the first order of business is to select a jury. The judge and the lawyers are permitted to question the jurors to ensure that they are unbiased. This process is known as voir dire. This is an important process and a great deal of effort goes into selecting jurors. After the jury is selected and seated, the plaintiff's lawyer begins with an opening statement, laying out the nature of the case, the facts as seen by the plaintiff, and the evidence that will be submitted. The defendant's attorney will likewise make an opening statement, usually contradicting the opening statement just given. 

The plaintiff's attorney then calls witnesses and presents the evidence that is relevant to the case. After direct testimony is over, the opposing lawyer may conduct cross-examination. This is when the attorney may become aggressive, trying to cast doubt on the witness's credibility or insinuate that the witness should otherwise not be trusted. Following cross examination, the original attorney may question the witness again (called redirect examination) and attempt to show the witness's original answers were accurate. 

During trial, the judge's responsibility is to see that the trial is fair to both sides. One major element of that responsibility is to rule on the admissibility of evidence. A judge may rule that a particular question or document is inappropriate or not relevant. 

When the plaintiff is done presenting evidence, the defendant presents his or her case, following the same procedure. The plaintiff is then entitled to present rebuttal witnesses. When the evidence is presented, each side is permitted to give closing arguments. 

The judge then instructs the jury in an effort to explain the law and how it relates to the issues they must decide. After all instructions are given, the jury will retire to a private room and discuss the case for as long as needed to come to a decision or verdict. In criminal trials, the decision must be unanimous. In civil trials, some states do not require a unanimous jury. In Idaho, both criminal and civil federal cases require unanimous decisions, though the parties may agree (prior to the verdict) to a non-unanimous decision in civil cases. In Idaho’s state courts, unanimity is required in criminal cases, while civil cases require only a three-fourths (3/4) majority.


The losing party may appeal by attempting to show that there was some significant error committed by the trial judge. An appellate court may review a trial court to ensure that the trial court provided a reasonably fair trial. An appellate court may affirm the lower court's judgement, modify it, reverse it, or remand it to the lower court for a new trial. 

Judgement and Order

When a party has no more possible appeals, it usually pays up voluntarily. If not voluntarily, then the losing party's assets can be seized or its wages or other income garnished to satisfy the judgement. 

Alternative Means of Resolving Disputes

Disputes do not, and frequently are not, resolved in court. In fact, the threat of litigation with its high costs and long length, usually propels parties toward a negotiated settlement. Most disputes are settled with the parties negotiating some compromise that avoids the cost of litigation.

Another option is arbitration. The parties use a private decision maker, the arbitrator, and the rules or procedure are more relaxed than what is expected in court. The arbitrator sets the rules, issues deadlines, and hears the arguments of both sides. Once the evidence is presented, the arbitrator will make a decision which is binding on the parties (though many states permit the losing party to take the case to court). Arbitration is quicker and cheaper than civil litigation. 

Unlike arbitration, mediation gives the neutral party no power to impose a decision. The mediator hears both sides' arguments and attempts to help them come to a resolution. However, the parties have complete control and may disregard the suggestions of the mediator.

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