Phases of Civil Litigation by Datius Did
Phases of Civil Litigation by Datius Did
Before you begin reading about the three main phases of civil litigation, know that the
civil litigation process can, generally, take two main different forms. Uncontested means that
both sides agree on a desired outcome but are using the court system to make their agreement
legally binding. These people may be required to have their agreement approved by a judge or
they may decide to do so as a way to help protect their interests. Uncontested cases can be
successfully completed through careful research, attention to detail and organization.
Contested means that the people involved in the case do not agree on what the outcome of
the case should be. Contested cases require that both sides argue their position to explain why the
law says that a judge should rule in for them. Contested cases will generally require much more
work than an uncontested case, even if the other side is not represented by an attorney. This is
because you will need to learn trial strategy and prepare to clearly explain the way that the law
applies to the facts of your case. And you will need to give this explanation while addressing the
other side, who will be presenting an explanation of the law that challenges your explanation,
arguing that it is only fair for the judge to rule in their favor instead of yours.
Order 8(A) CPC1 provide that order has introduce some new procedure in our
law or Civil litigation, before the case, is set before the hearing under
adversarial system. A court set as a mediator ADR it’s an alternative to the
adversarial system.
1
Cap 33 of 2019
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Civil litigation presupposes the existence of the minimum of two (2) parties; we
are operating under the adversarial system of justice. In our CPC is structured
in such a way that, going to court is last resort,. Therefore in any civil
litigation, must have a dispute. It must be a contested dispute, in any civil
litigation, there must be the following;
a) Litis Contestatio (there must be a dispute) must be contested
b) A cause of action.
c) Drafting plaint, a letter of action (demand letter, or demand note, a
demand and a refusal)
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In Advocate Costs
In Amradha’s case it was held that, where plaintiff did not save a demand note
on the defendant and the defendant does not contest the suit (he admit every
thing), the plaintiff would not be entitled to costs generally except under a
special order of a court.
In Abdul Aziz Velji Ratansi vs Shari Singh (1968) HCD 453, both cases were
interpreting Rule 61 of Advocate Remuneration &Taxation of Cost Rules, which
specifically provide that in the absence of a demand note, a plaintiff will not be
entitled for Advocate costs. The rule applies only in those cases where advocate
are employed.
Also, it is under the CPC a demand note is not mandatory, not specifically
provided for, the interpretation of s.61 of Advocates Remuneration read
together with the above cases. It imposes penalties on the plaintiff who has
brought a suit without having sent a demand note and finishes the defendant
not contesting the claim
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PHASES OF CIVIL LITIGATION BY DATIUS DIDACE 2021
Phase 1: Pre-Trial
Step 1: Research
Step 2: Filing
Use your research to tell you what specific information you are
required to include in your petition6. A petition is the document
2
A case, controversy, or lawsuit. Participants (plaintiffs and defendants) in lawsuits are called litigants.
3
A lawsuit or dispute that is processed in court or similar resolution method.
4
A judge or group of judges whose job is to hear cases and carry out justice. Judges sometimes use
"court" to refer to themselves in the third person, as in "the court has read the briefs."
5
Methods of resolving disputes without official court proceedings. These methods include mediation and
arbitration.
6
In a civil case, a court paper that asks the court to take some kind of action.
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you write that asks the court to give you a certain outcome to file,
take 3 copies of your petition to the Clerk of the Court. The clerk
will stamp them to show that you are officially asking the court for
the things listed in your petition.
When you give your petition to the clerk, you should be ready to pay
a filing fee. Filing fees are often $200 or more. If you cannot afford
to pay the filing fee, you may file a statement of inability to
afford to ask the court to waive the fee for you. This form may also
be called a Pauper’s Oath7 or Statement of Inability to Afford
Payment of Court Costs8.
Keep in mind: The court will not contact you with a court date or
decision. Instead, you must complete the next steps until you have
a court order signed by a judge.
After you file your petition10 with the court, you are required to tell
the person, people or business that could be affected by
your case that you have filed. This is called giving
legal notice. Your research in Step 1 should tell you who the law
requires you to notify in your specific type of case. If you are unsure
7
A swearing to tell the truth, which would subject the oath-taker to liability for perjury if she knowingly
told a lie.
8
The fees charged for using the services of a court, such as filing fees, fees for serving court papers, fees
to pay a court reporter to transcribe depositions, photocopy court papers, etc.
9
A written announcement or warning.
10
In a civil case, a court paper that asks the court to take some kind of action.
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To give legal notice15, ask the court clerk to issue citation16, and
arrange for a process server17 to give the citation to the person (or
business) you’re suing. You may not serve
the respondent18 yourself. The only way to avoid formally serving
the Respondent is if your case is
uncontested and the respondent shows their agreement by signing
and filing a Waiver19 of Citation.
11
A person or party who starts a case by filing a petition at court. Also called Plaintiff.
12
A person or business that files a formal complaint with the court.
13
The person against whom an appeal is made; the responding party in a dissolution, nullity, adoption, or
probate case.
14
An individual (or business) against whom a lawsuit is filed.
15
The person against whom an appeal is made; the responding party in a dissolution, nullity, adoption, or
probate case.
16
A court order or summons that lists the charges and tells a defendant to go to court, post bail, or both.
17
Any person over 18, not directly involved in the case, who will deliver the citation and a copy of the
plaintiff's complaint, and later return to the court an affidavit that he or she has completed service.
18
The person against whom an appeal is made; the responding party in a dissolution, nullity, adoption, or
probate case.
19
To give up a legal right voluntarily, intentionally, and with full knowledge of the consequences.
20
The legal authority of a court to hear and decide a certain type of case. It also is used as a synonym for
venue, meaning the geographic area over which the court has territorial jurisdiction to decide cases
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If the respondent has their own claims against the petitioner, then
the respondent can tell the court about those claims in a Counter-
Petition. There is usually a fee to file a Counter-
Petition. A statement of inability to pay costs can be used for a
Counter-Petition to attempt to waive the filing fees.
Phase 2: Trial
The trial phase of the civil litigation process will be very different if
your case is uncontested, meaning that both sides agree on what
the final outcome of the case should be. If your case is uncontested,
the trial phase should be very short and might be better thought of
as a “hearing.”
21
The person against whom an appeal is made; the responding party in a dissolution, nullity, adoption, or
probate case.
22
An official response to claims made in a lawsuit.
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23
A decision issued by a court
24
A case is contested when the parties disagree with each other about what should happen.
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objections that you are likely to see and use in court could
determine whether you win or lose your case.
Step 2: Procedure
Once you are in trial, you will not have the chance to research what
is happening. Instead, you should prepare for different possible
scenarios and outcomes in advance so that you are ready to
participate even if things go differently than you expected.
25
Evidence presented by a witness who did not see or hear the incident in question but heard about it
from someone else. With some exceptions, hearsay generally is not admissible as evidence at trial.
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Step 4: Practice
In court, you will need to clearly explain the way that the law
applies to the facts of your case.
You will also need to know the legal concepts, available evidence,
procedures, and rules that apply to your case.
26
When someone that loses at least part of a case asks a higher court (called an "appellate court") to
review the decision and say if it was right.
27
A formal protest made by a party over testimony or evidence that the other side tries to introduce.
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Phase 3: Post-Trial
Important: Deadlines
Whether you agree or disagree with the judge’s final decision, you
should pay special attention to the deadlines that apply to post-trial
action. These deadlines will tell you how long you must wait before
your judgment is no longer eligible for appeal. Appeal standards are
very complex and often overwhelming for non-attorneys. You should
talk to an attorney about your case if you want to appeal the judge’s
decision OR if the other side has an attorney to help
them appeal a judgment in your favor.
28
If defendants in a civil case receive legal notice, but do not file an answer at court by the deadline and
do not go to the court hearing, they are "in default." When this happens the court can decide the case
without the defendant's input.
29
A judgment awarding a plaintiff the relief sought in the complaint because the defendant has failed to
appear in court or otherwise respond to the complaint.
30
Free or low-cost legal services for low-income individuals.
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Scenario 2: Enforcement
If you agree with the outcome of your case, you may still need to
take extra steps to enforce the judge’s order after it is signed. Read
the court order31 closely so that you understand what must be done
to comply with the court order. Make sure you understand your
obligations as well as the other side’s obligations to you. Look for
deadlines that tell how long you and/or the other side each have to
comply with the court order.
If the other side does not comply with the court order by the
deadline, you may file a Motion to nforce or a similar titled
document to tell the judge that the court order is not being
followed. What you file to enforce a judgment and the specific
enforcement process will depend on the type of case you have.
31
A legal decision made by a court that commands or directs that something be done or not done. Can be
made by a judge, commissioner, court referee, or magistrate.
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Scenario 3: Appeal
If you disagree with the judge’s decision then you may be able
to appeal it. An appeal takes place when an appellate court reviews
what happened in the trial court. If the appellate court believes the
trial court made a mistake (called an error) and believes the
mistake made a difference in the outcome of your case (harmful
error), the appellate court can change the trial court’s decision or
send your case back to the trial court to be tried again.
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