The Anatomy of a Civil Lawsuit

author by Bryan Spoon on Jun. 29, 2017

 General Practice Accident & Injury  Personal Injury Lawsuit & Dispute  Litigation 

Summary: This article is a brief look at what "suing" someone actually means, including the process and a rough timeline.

Many people do not know what actually happens when one person “sues” another.  The path to a jury is not straight or quick, but involves significant preparation and planning.  This brief guide is meant to be a brief overview of the typical steps necessary to prevail on a civil lawsuit filed in state court.

The first step to any lawsuit is to file a complaint with the court.  See Montana Rules of Civil Procedure, Rule 3.  In order to instigate a lawsuit, a plaintiff must file a complaint in the correct court.  The state courts in Montana are broken up by county and which county a plaintiff is required to file his/her complaint depends on the kind of lawsuit and the facts giving rise to the plaintiff’s claim.  A complaint does not need to be complicated or extensive.  A complaint need only contain a short and plain statement of the claim showing the plaintiff is entitled to relief, and demand the specific relief the plaintiff is seeking.  A plaintiff needs to provide the court with two documents: the complaint, and a summons that the court will issue.

After a complaint has been filed in the correct court and obtaining a copy of the suit and the summons issued by the court, a plaintiff has (in most cases, but not all) three years to “serve” the suit.  Serving suit means hand delivering a copy of the complaint and summons to the defendant or an authorized representative of the defendant.  There are other means of serving suit, but they will not be discussed here.

Once a complaint and summons has been served on a defendant, the defendant must file an “answer” with the court and the plaintiff.  The answer must state in short and plain terms the defenses to each claim asserted in the complaint and admit or deny the allegations contained in the complaint.  The defendant’s answer must also contain any “affirmative defenses” the defendant is planning on using against the plaintiff’s claims.  Affirmative defenses include comparative negligence, fraud and any claim the plaintiff is barred from suing because the statute of limitations has expired on the claims asserted.  These are not the only affirmative defenses available to defendants.

After the plaintiff receives the defendant’s answer, the parties begin what is called “discovery.”  Discovery is the process of getting information from the other party through written requests, depositions and requests for production of documents and other tangible things.

Upon request from a party, the court will bring the parties together for a scheduling conference.  During this conference, the parties agree on specific dates for the conclusion of discovery, the deadline for submission of motions and a trial date.  In state court, the parties can agree to vacate this order if they wish.  Federal court, however, is different and absent extreme conditions, the scheduling order remains in place throughout a case after it is issued.  A typical scheduling order in state court plans for a trial date roughly six months from when the order is issued.  However, in very complicated cases with difficult issues or cases with numerous plaintiffs or defendants, the scheduling order will provide more time for the parties to conduct discovery and will set a trial date the court feels appropriate under the circumstances.

Only then can the parties begin the process of selecting a jury for the trial.  Once a jury has been selected, the trial can begin.  Depending on the complexity of the case and the issues to be litigated (including the number of witnesses and exhibits each party intends to offer), the trial can take anywhere from a single day to several weeks.  Once the parties have presented their cases and finished their closing arguments, the judge then instructs the jury on the law.  After the legal instructions, the jury is sent to deliberate and come to a decision and render a verdict on liability and award damages, if any.  The court enters the judgment and the process is concluded, unless one or both parties believe the court erred in some way.  If so, the parties can appeal specific legal issues to the Montana Supreme Court.

This is a long and involved process that is not to be entered into lightly.  Thankfully, very few cases are ever tried in front of a jury.  Because both parties realize just how long and difficult it is to try a case, the vast majority of cases settle prior to trial.

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