DISCLAIMER: Altiorem Legal Services (hereinafter, “Altiorem”) cannot and does not provide legal advice. Altiorem is not a law firm; Altiorem’s staff are not attorneys, cannot act as attorneys, and do not act as attorneys; and any information provided by Altiorem in this article or otherwise is not a substitute for legal advice from an attorney. The information contained in this article should not be construed as legal advice, as it is not intended to be legal advice; the information in this article is provided for educational purposes only. Again, none of the information provided in this article should be construed as legal advice, and nobody should rely on or use the information contained in this article in their legal matters.
HOW IS CIVIL LAW DIFFERENT FROM CRIMINAL LAW?
The criminal system is the system that deals with individuals’ offenses against the state or society as a whole; such offenses are called crimes. As a result, criminal law is the system of laws concerned with identifying crimes and punishing individuals who commit those crimes.1 Legal Information Institute, Criminal Law, https://www.law.cornell.edu/wex/criminal_law (last visited Sept. 16, 2022).
By contrast, the civil system deals with individuals’ responsibilities to and offenses against each other. Civil law is a branch of law that governs the non-criminal rights and duties of persons and the equal legal relations between private individuals.2 Wex Definitions Team, Civil Law, https://www.law.cornell.edu/wex/civil_law (last updated Feb. 2022).
Examples of civil law matters involve divorces, child custody actions, breach of contract actions, suits for negligence, and property damage actions, among many others.
PROCEDURES OF UTAH CIVIL LAW
In civil cases, a case is started when one party—the plaintiff—files a complaint against another—the defendant. This complaint is one of several “pleadings” that can be filed in a civil matter.
Not every filing in a civil matter is a pleading; some are motions, briefs, and other papers filed over the course of a lawsuit. According to Rule 7(a) of the Utah Rules of Civil Procedure, the pleadings allowed in a civil action are,
- a complaint;
- an answer to a complaint;
- an answer to a counterclaim designated as a counterclaim;
- an answer to a crossclaim;
- a third-party complaint;
- an answer to a third-party complaint; and
- a reply to an answer if ordered by the court.
A complaint and an answer to a complaint are the most common pleadings in civil litigation. The elements of the complaint and answer are included below.
A complaint must include the following:
- a title and a proper caption (i.e., the names of the parties, the court, etc.);
- a short initiatory declaration or statement giving a concise account of the relief requested (that is, is the plaintiff looking for money, an injunction, etc.) and the grounds for the relief requested;
- paragraphed statements detailing who the parties to the case are;
- paragraphed declarations of proper jurisdiction and venue in the matter (is this the right court and kind of court?);
- one or more paragraphed sections that include a comprehensive statement of the relevant material facts claimed by the complaining party;
- a paragraphed Causes of Action section containing the arguments which cite authority for the relief requested (a “Cause of Action” is a legally recognized basis for a civil suit such as breach of contract, a personal injury, defamation, etc.);
- a paragraphed statement demanding a jury if the complainant desires that a jury adjudicate the facts of the case;
- a conclusion section summarizing the contents of the complaint; and
- a Prayer for Relief section making statements regarding the specific relief that the complainant desires the court to grant them (typically, money damages and/or injunctive relief).3 See Utah R. Civ. P. 7(c).
To see examples of the elements of a complaint in action, please visit our Work Samples page on our website.
An answer to a complaint must include the following:
- a title and a proper caption;
- a short initiatory declaration or statement giving a concise account of the purpose of the document;
- the defendant’s defenses, usually entitled “FIRST DEFENSE,” “SECOND DEFENSE,” “THIRD DEFENSE,” and so on, which typically include defenses such as,
- “Plaintiff’s complaint fails to state a claim upon which relief may be granted” (the plaintiff has failed to allege any facts that support their case or failed to identify a legal claim, a “cause of action,” that is recognized);
- “The relief sought in Plaintiff’s complaint is barred, in whole or in part, because of one of many legal reasons preventing the plaintiff from being able to bring the suit, including accord and satisfaction, assumption of risk, comparative fault, estoppel, lack of consideration, laches, license, payment, release, res judicata, the statute of frauds, the statute of limitations, waiver, and/or because Plaintiffs have engaged in inequitable conduct and come to court with unclean hands to seek equitable relief”;
- “Defendant denies each and every allegation of Plaintiff’s complaint not otherwise specifically denied hereinbelow” (the defendant did not do what the plaintiff alleges);
- “Without waiving any of the foregoing defenses and objections, and while reserving Defendant’s right to assert additional defenses and objections as the factual basis for them becomes known following an opportunity to conduct discovery, Defendant answers Plaintiffs’ Complaint—with Defendant’s answers corresponding numerically to the specific numbered allegations of Plaintiffs’ Complaint—as follows”;
- immediately after this statement, the defendant would, in numbered paragraphs, respond to each allegation of the plaintiff’s complaint with “Admit,” “Deny,” “Admit in part and deny in part,” “Defendant is with insufficient knowledge to answer the allegations of paragraph [#] of the complaint, and, therefore, denies the same,” etc.;
- any other defenses the defendant comes up with, including affirmative defenses such as Assumption of Risk (the plaintiff knew what they were getting into), Waiver (the plaintiff signed off on the risk), Statute of Limitations (the plaintiff waited too long to bring the suit), Statute of Frauds (the plaintiff never got this contract in writing as required by law), etc.
- the “WHEREFORE” clause at the end of the answer, which asks the court to make certain rulings concerning the plaintiff’s complaint, such as,
- “that the complaint be dismissed with prejudice upon the merits” (the court will dismiss the case, and the plaintiff will be prevented from filing it again);
- “that Plaintiff takes nothing thereby” (the plaintiff will receive no damages);
- “that Defendant be awarded reasonable attorney’s fees and costs incurred in defending this action”:
- “that relief be granted to Defendant as prayed for in Defendant’s counterclaim”;
- etc.; and
- the defendant’s counterclaim, which must include the same elements as a complaint, except for the title and caption (since those are already included in the answer’s title and caption).
To see examples of the elements of an answer to a complaint, please visit our Work Samples page on our website.
Steps in the Utah Civil Litigation Process
There are eleven or twelve different steps in the Utah civil litigation process (twelve if a party desires to appeal; eleven if not), which include,
- sending a notice or demand to the responding party (the prospective defendant if the case goes to court) before filing a formal complaint with the court;
- drafting and filing a complaint on the part of the plaintiff if the preceding notice or demand is unsuccessful at compelling settlement from the responding party;
- preparing the summons and serving the summons and complaint upon the defendant;
- the defendant’s filing of an answer to the complaint;
- resolving any responsive motions;
- making other responses on the part of the defendant, as well as further responses by the plaintiff;
- scheduling and attending a pretrial conference;
- engaging in discovery (this can be done at any stage of the civil litigation process after the filing of the parties’ pleadings—the plaintiff’s complaint and the defendant’s answer);
- scheduling and attending the trial;
- making post-trial and post-judgment motions;
- the enforcement of the judgments made as a result of trial; and
- appealing the trial court’s decision (not done in every case).4 David A. Thomas, Utah Civil Practice § 1.08 (2018 ed. 2018).
Let’s look at these twelve steps in detail.
1. NOTICE OR DEMAND
While it is usually best to resolve an issue without involving the court system, sometimes, no matter what one does, the issue cannot be resolved without court intervention. Given the expense and uncertainty of litigation, it makes sense for the potential plaintiff to send a demand letter or notice statement to the potential defendant before commencing any legal action.
This letter or statement should identify a specific deadline for a response, alerting the potential defendant that if a response is not met, then formal litigation will ensue.5 See id.
If writing a demand letter, which is usually more complex and detailed than a notice statement, the demand letter should include at least,
- an opening statement describing the purpose of the letter;
- a “Summary of Facts” section establishing liability on the part of the responding party;
- an “Injuries” section describing the injuries suffered by the complainant (i.e., the prospective plaintiff), which could be physical, mental, emotional, and economic injuries, among others;
- a “Special Damages” section detailing the special damages suffered by the complainant, such as essential medical costs, cost(s) of repair(s), and other money damages that can be specifically traced back to a particular amount spent by the complainant as a result of the responding party’s actions;
- a “General Damages” section detailing the general damages suffered by the complainant, such as emotional damages, loss of consortium (negative impacts on marital intimacy), and other damages which are impossible to quantify or be traced back to a particular amount spent by the complainant as a result of the responding party’s actions; and
- a “Conclusion” section concludes the demand letter and reiterates the essential points.
To see examples of the elements of a demand letter, please visit our Work Samples page on our website.
2. DRAFTING AND FILING THE COMPLAINT
If there is no response to the demand or notice within the specified period, or if the response is not satisfactory, drafting and filing a complaint would be the next step in the civil litigation process. For some, an attorney must draft the complaint and provide representation throughout the litigation. Other people, however, prefer to represent themselves and draft their complaints on their own or seek out paralegal services to help draft the complaint. Once the final draft of the complaint is completed, it is filed with the court in the proper jurisdiction.
3. PREPARING AND SERVING THE SUMMONS
When a complaint is created, it is usually accompanied by a summons as well. A summons is a document that officially notifies the defendant that a complaint has been filed in court against them and that the defendant must respond to the complaint within a certain period or suffer default judgment;6 See id. in Utah, that time period is twenty-one days if served within the state and thirty days outside of the state.7 Utah R. Civ. P. 12(a)(1) The summons must be served upon the defendant by a process server, a law enforcement officer, or any individual above the age of eighteen who is not a party to the case.
Once the complaint is served, the process server or law enforcement officer prepares a document called a “Proof of Service,” which is filed with the court and affirms when, where, and by whom the defendant was served. If the summons and complaint are served by an individual who cannot prepare their own Proof of Service document, then the plaintiff will usually be responsible for drafting the Proof of Service document for the server to fill out and sign.
Sometimes, if, for example, the defendant is impossible to find, the plaintiff can move the court for an order of alternative service, which allows the plaintiff to serve the defendant via other methods, such as publishing the summons in a newspaper of local circulation within the believed whereabouts of the defendant, once a week for four consecutive weeks, or service via email, among other methods.
The Proof of Service document must be filed with the court, as it is the evidence showing that the defendant was made aware of the complaint and on what date.8Thomas, supra, § 1.08.
4. RESPONSE OF THE DEFENDANT
As mentioned above, if a defendant has been served in the state of Utah, they have twenty-one calendar days to file an answer; however, if the defendant is served outside of the state of Utah, they have thirty calendar days to file an answer.9Utah R. Civ. P. 12(a)(1)
The answer will explain why the defendant agrees or disagrees with each of the statements of the complaint. A defendant may also file a counterclaim with their answer if appropriate.10Utah R. Civ. P. 13
5. RESOLVING ANY RESPONSIVE MOTIONS
The defendant can file a dispositive motion (i.e., a motion that will result in the dismissal of the complaint) like a Motion to Dismiss, a Motion for Summary Judgment, or a Motion for Judgment on the Pleadings. At this point, the court decides if the complaint is valid, and if so, the case will move forward, but if not, the case will be dismissed and closed.
6. FURTHER RESPONSES BY THE DEFENDANT AND THE PLAINTIFF
If a defendant files a counterclaim with their answer, then the plaintiff will have an opportunity to respond to the counterclaim, including the filing of a dispositive motion addressing the counterclaim.
7. PRETRIAL CONFERENCE
After the complaint, answer, counterclaims, and other pleadings have all been completed—although no pleadings besides the complaint and answer are required—trial preparation can begin.
During this process, a settlement agreement can be made between the parties, but if a trial seems inevitable, the parties’ attorneys meet with the judge to narrow down the issues to be tried and set a schedule.
This will allow a set amount of time for discovery to be completed and get the trial scheduled, as courts can sometimes have incredibly long wait times for a trial.
From what they see on television, many people are only familiar with civil law and courtroom procedures. Despite what is seen on television or in movies, it is very rare for evidence to be a “surprise” in court because of a process called “discovery.”
After the initial complaint and answer have been filed, the discovery phase begins, and both sides participate in it as part of their trial preparation.
Discovery is the formal process of exchanging information between the parties about the witnesses and evidence they will present at trial.11American Bar Association, How Courts Work (Dec. 30, 2021), https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/.
There are a few ways to get discovery from the opposing party. Parties may discover any matter not privileged (i.e., protected from disclosure, such as conversations with a spouse, attorney, or spiritual leader) that is relevant to the claim or defense of any party (there are exceptions to this).12Utah R. Civ. P. 26(b) The party seeking discovery usually sends a “Discovery Requests” document to the other party to initiate discovery; however, there is information that a party must serve upon the other immediately without waiting for a discovery request—referred to as initial disclosures.
a. Initial Disclosures
Under Rule 26(a)(1) of the Utah Rules of Civil Procedure, a party must, without waiting for a discovery request, serve on the other party the following:
- The name and, if known, the address and telephone number of,
- each individual who is likely to have discovery information supporting its claims or defenses, unless solely for impeachment, identifying the subjects of the information; and
- each fact witness the party may call in its case-in-chief and a summary of the expected testimony.
- A copy of all documents, data compilations, electronically stored information, and tangible things in the possession or control of the party that the party may offer in its case-in-chief, except charts, summaries, and demonstrative exhibits that have not yet been prepared and must be disclosed.
- A computation of any damages claimed and a copy of all discoverable documents or evidentiary material on which such computation is based, including materials about the nature and extent of injuries suffered.
- A copy of any agreement under which any person may be liable to satisfy part or all of a judgment or to indemnify or reimburse for payments made to satisfy the judgment.
- A copy of all documents a party refers to in its pleadings.13Utah R. Civ. P. 26
A plaintiff must serve the other side with initial disclosures within fourteen days after the filing of the defendant’s first answer to the plaintiff’s complaint.14See id.
A defendant must serve the other side with initial disclosures within forty-two days after the filing of the defendant’s first answer to the complaint.15See id.
Another way to gather discovery is through depositions. A deposition is a process of obtaining statements relevant to the case from the deponent (the person being deposed), in which statements are made outside of court but under oath.16Utah R. Civ. P. 30
Depositions consist of an attorney asking the deponent several questions and prompting them to explain the circumstances surrounding the case. Information obtained via depositions can be used in or to prepare for trial. A deposition is used so that attorneys know what a witness will say when questioned before trial.
It is also an effective way of catching a witness in a potential lie. A deponent may say one thing during the deposition but something different during the trial. An attorney can then question them on why they have changed their answer.
c. Requests for Production of Documents
Another form of discovery includes obtaining records or other documents from the opposing party via a formal Request for the Production of Documents.17Utah R. Civ. P. 34 One can make a Request for the Production of Documents if, for example, certain desired records are not disclosed during initial disclosures. When requesting documents, both the plaintiff and the defendant can request, in writing, any documents that they want the other side to produce.
A method of discovery that goes with the production of documents includes interrogatories.18Utah R. Civ. P. 33 Interrogatories are questions of fact material to the case that one party asks another. Both the plaintiff and the defendant can ask relevant questions of each other. When interrogatories are answered, these answers are assumed to be under oath. Therefore, it is very important to answer interrogatories as honestly as possible.
e. Requests for Admissions
Another method of discovery includes Requests for Admissions.19Utah R. Civ. P. 36
Under Rule 36 of the Utah Rules of Civil Procedure, requests for admissions are written requests to admit the truth of any discoverable matter outlined in the request, including the genuineness of any document. The matter must relate to statements or opinions of fact or the application of law to fact.
It is very important to note that one must include caution language at the top right corner of the first page of the Requests for Admissions. This caution language must state in boldface type, “You must respond to these requests for admission within 28 days, or the court will consider you to have admitted the truth of the matter as set forth in these requests.”
That means that if these admissions are not responded to by the party to whom the requests are made, they are deemed admitted. This is important to know if one receives a request for admissions from the opposing party to fill out.
An example of a request for admissions could look something like this:
- Admit that you took the minor child to the doctor on September 28, 2020, and did not inform the defendant of the doctor’s appointment before the appointment took place.RESPONSE:
f. More Information About Discovery
The disclosures, discovery requests, and responses are not filed with the court. The court receives a notice stating that discovery has been completed, what type of discovery it was, and when it was completed. There are discovery cut-off dates that the court will issue. This means one cannot serve discovery upon the other party after that date.
g. Pretrial Disclosures
The last part of discovery that happens before trial is a pretrial disclosure. A pretrial disclosure is due to the court twenty-eight days before trial, and it must also be served on the opposing party.20Utah R. Civ. P. 26(5).
A pretrial disclosure lists the witnesses’ respective names, addresses, and telephone numbers; the list is organized into witnesses who will be called to testify during the trial and those who may be called to testify during the trial. The pretrial disclosures also briefly summarize what each witness may testify to.
A pretrial disclosure includes a copy of each exhibit, including charts, summaries, and demonstrative exhibits each party intends to use at trial. Like the witnesses, the exhibits are organized into “may offer” and “will offer” categories. This way, the parties have copies of all the exhibits before trial.
Discovery is an essential part of the trial process. Sometimes it seems that trials are set out many months or perhaps even a year into the future, but this is so that each party has time to prepare and build a strong case.
A trial is a formal examination before a competent tribunal of the matter in a civil or criminal cause to determine such an issue.21Merriam-Webster, Trial, https://www.merriam-webster.com/dictionary/trial (last visited Sept. 16, 2022). In other words, a trial is “[a] formal judicial examination of evidence and determination of legal claims in an adversary proceeding.”22Bryan A. Garner, Black’s Law Dictionary 1644 (Ninth ed. 2009).
A trial can be in front of a jury or just a judge. If neither party requests a jury trial, the trial will be before the judge only called a bench trial. Unlike in criminal cases, a plaintiff in a civil case is not guaranteed the right to a jury trial under the Utah or United States Constitutions.
If a jury trial is held, then jury selection must take place. Jury selection is important to both sides, as the jury will decide the case.
The plaintiff has the burden of proof, which means that the plaintiff must prove certain elements of the claim to be considered by the court. The defendant can challenge or counter any of the elements of proof provided by the plaintiff.
During the trial, there are opening statements, and then the plaintiff goes first presenting their case (called “plaintiff’s case-in-chief”). After the opening statements, the plaintiff puts on evidence by calling witnesses and submitting exhibits. The defendant also has a chance to question the witnesses called by the plaintiff during the plaintiff’s case-in-chief in a process called “cross-examination.”
After the plaintiff completes its presentation of testimony, the defendant then gets to call witnesses and submit exhibits (called “defendant’s case-in-chief”). The plaintiff gets a chance to cross-examine the witnesses called by the defendant during the defendant’s case-in-chief.
After the defendant completes its presentation of testimony, the plaintiff will get the opportunity to address any issues raised for the first time during the defendant’s case-in-chief (called “plaintiff’s rebuttal case”).
After each side has made its case, closing statements are given by each party.
The judge then considers the exhibits (if it is a bench trial), or the jury begins deliberations (if it is a jury trial). The judge can decide right then or take some time to review the exhibits and what happened during the trial.
Once a decision is made, the parties reconvene in the courtroom and are told the decision. The judge will then typically ask the prevailing party to prepare an order that memorializes the decision (i.e., records it in writing).
The following are the ten trial procedures involved in civil law cases:23Utah Courts, Summary of Civil Procedures, https://www.utcourts.gov/howto/courtprocess/civil.html (last visited Sept. 16, 2022).
a. Jury selection.
- The jury selection process is governed by Rule 47 of the Utah Rules of Civil Procedure.
- In civil cases, the jury is comprised of eight members.
- The court clerk is in charge of calling a panel of prospective jury members—called jurors.
- The judge—or, in some cases, the lawyers or the parties—ask the eight prospective jurors questions about their background and beliefs to discover any potential biases or prejudices that a juror or jurors may have, which biases or prejudices would be unfairly detrimental to either party’s case if a biased or prejudiced juror is left and allowed to deliberate and reach a verdict upon the case.
- A party can ask the judge to remove any juror “for cause” if the juror,
- is not qualified under Utah Code § 78B-1-105;
- is related to either party or to an officer of a corporation that is a party;
- is a debtor, creditor, guardian, ward, employer, employee, principal, or agent of a party;
- has served as a juror or a witness in a previous trial;
- has a monetary interest in the case; or
- is not likely to act impartially.
- In addition, both the plaintiff and the defendant may each remove up to three jurors without stating any reason; this process is known as “peremptory challenges.”
b. Opening statements.
- Each party makes an opening statement about the nature of the case, the evidence they will present, and the facts they intend to prove.
- A party may waive the right to make an opening statement.
- The defendant may wait until they present their witnesses and exhibits to make an opening statement.
c. Plaintiff’s evidence.
- The plaintiff is the first party allowed to call their witnesses and offer their exhibits before the court.
- Direct Examination: The plaintiff asks each witness what they know about the case.
- Cross-Examination: After the plaintiff finishes questioning each witness, the defendant may also ask questions of that witness.
- Re-Direct Examination: The plaintiff may then ask further questions to the witness.
- Furthermore, the plaintiff may offer exhibits supporting their case, such as documents, photographs, etc.
- When presenting the plaintiff’s evidence, the Utah Rules of Evidence apply.
d. defendant’s evidence.
- After the plaintiff has called all their witnesses and offered all of their exhibits, the defendant may do the same.
- Examination, cross-examination, and re-direct examination occur in the same manner as when the plaintiff presented their evidence but with the defendant asking the first questions.
- When presenting the defendant’s evidence, the Utah Rules of Evidence apply.
e. Rebuttal evidence.
- After the defendant has called all their witnesses and offered all of their exhibits, the plaintiff may call witnesses to rebut or challenge any new information introduced by the defendant’s witnesses.
- The judge may allow a surrebuttal—i.e., a rebuttal to the rebuttal—on the defendant’s part.
- When presenting rebuttal evidence, the Utah Rules of Evidence apply.
f. Jury instructions.
- The process of jury instructions is governed by Rule 51 of the Utah Rules of Civil Procedure.
- During the jury instruction process, if there is a jury, the judge will instruct the jurors about the law they must follow and apply while deliberating.
- The parties must propose to the judge the instructions they want to be given to the jury.
- The parties also prepare a proposed verdict form, which the jurors use to answer specific questions about the case.
g. Closing arguments.
- During the closing arguments portion of the trial, each party summarizes the evidence they presented to persuade the judge or jury to decide the case in their favor.
- The plaintiff makes their closing argument first, then the defendant, and then the plaintiff may respond to the defendant’s closing argument.
- Either party may waive their right to make closing arguments.
h. Jury deliberations and verdict.
- After the parties make their closing arguments, the court orders the jury to retire to the jury room to deliberate.
- At least six jurors must agree on the answer to all the required questions on the verdict form, but they need not be the same six on each question.
- When six or more jurors have agreed on the answer to all required questions, the foreperson signs the verdict form and advises the bailiff that the jury has reached a verdict.
- The judgment process in Utah civil law cases is governed by Rule 54 of the Utah Rules of Civil Procedure.
- After the jury’s verdict—or if the parties participated in a bench trial after the judge has decided the facts—the court will enter a judgment.
j. Final order.
- The final Order in a Utah civil case is governed by Rules 7 and 52 of the Utah Rules of Civil Procedure.
- Either at the end of a trial or when the parties have reached a settlement, the prevailing party must prepare a “Findings of Fact and Conclusions of Law” document and an “Order” for the judge to review and sign unless the requirement is waived under Rule 52 of the Utah Rules of Civil Procedure.
- The “Findings of Fact and Conclusions of Law” document basically mirrors the original Complaint if the plaintiff prevails or the counterclaim (if any) if the defendant prevails; this document is voiced by the court in the second person (e.g., “The Court finds that…”), and it summarizes the facts of the case as contained in the Complaint or Counterclaim made by either party, respectively; furthermore, the “Conclusions of Law” portion typically concludes that an Order should be issued and that its terms should be according to the prevailing party’s Prayer for Relief section in their Complaint or Counterclaim (the part of the pleading in which a party asks for specific orders or judgments to be made by the court to ameliorate their damages according to the established facts).
- An “Order” is a document prepared by the prevailing party, which establishes that the court has reviewed the Findings of Fact and Conclusions of Law, as well as the other pertinent documents in the case, and that the court is ready to make an order “for good cause showing”; after establishing that the court is ready to make an order, the “Order” document proceeds to list all the orders made in the case, to which the parties are bound, which orders typically reflect the prevailing party’s Prayer for Relief.
- Within fourteen days after the court’s decision, the prevailing party (or the party ordered by the court) must prepare and serve upon the other party’s proposed Findings of Fact and Conclusions of Law and an Order conforming to the court’s decision.
- Objections to the proposed documents must be filed within seven days after service.
- g. The party preparing the documents files them with the court after being served with an objection or after the time to object expires.
10. POST-TRIAL AND POST-JUDGMENT MOTIONS
Once a verdict has been reached or a decision is made, the losing party may, if unsatisfied with the verdict or decision, request a new trial or appeal the decision.24 Thomas, supra, § 1.08. At this stage, the losing party prepares post-judgment motions to move the court, for example, to grant a new trial or to begin the appellate process.
11. ENFORCEMENT OF JUDGMENTS
Although a decision may have been made and ordered by the court, not everyone abides by that order. If the losing party fails to follow the order, then the parties can find themselves back in court to have the order enforced. Sometimes this means following a visitation schedule, and other times paying the winning party the money owed. If a party continues to fail to abide by the order, they can be held in contempt of court and be required to pay the other side’s attorney’s fees.
Another option for either party, if they are not satisfied with the court’s decision, is to appeal to a higher court. The higher court determines whether the lower court has made a legal mistake.25Utah State Courts, Guide to Appealing a Case in Utah’s Appellate Courts, https://www.utcourts.gov/howto/appeals/docs/00_Guide_to_Appealing_a_Case.pdf (last modified July 2020).
When a decision is to be appealed, certain steps must be taken for the appeal process. It is common for a judgment to be suspended while the appeal is pursued.26Thomas, supra, § 1.08.
The following are the steps to be taken to appeal a decision:
a. Notice of appeal.
- The notice of appeal must be filed within thirty days of the entry of the final judgment.
This notice lets the court that issued the judgment and the other parties in the case know that the appeal is desired. The notice of appeal is filed with the trial court that issued the decision.
b. Preparation and submission of briefs and replies.
- Once a notice of appeal is filed, the appellant (the person filing the appeal) has ten days to request the trial transcript.27See id. This request provides the appellant with the court transcript from the court reporter. This allows the appellant to review everything that happened during the trial.
- The district court then files a record and record index with the appellate court.28See id. This shows what was filed during the case and when. Notice that the record index, the record index, and the due date of the brief are then sent to the parties.29Id.
- The appellant’s brief is due 40 days after the district court files the record/record index.30See id. The appellant uses the brief to persuade the appellate court that the trial court made a specific error or errors in law, fact, or procedure that affected the outcome of the case.31Id.
- After the appellant’s brief is filed, the appellee’s (opposing party) brief is due 30 days later.32See Courts, supra. This is the appellee’s chance to respond to the arguments made by the appellant.
- The appellant can reply to the appellee’s brief if necessary or desired.33Id.
c. After the briefs are filed.
- After the briefs are filed, the appellate court will set the case on the next available calendar for consideration and decision. The court will either decide based on the briefs or schedule an oral argument.34See id.
- It is common for the courts to decide based on the briefs. If the court determines that oral arguments will significantly help the decision process, they will schedule oral arguments for the case.35See id.
- There is no exact timeline for how long it takes for a decision to be made. It is important for the appellate court to carefully consider all the briefs presented, which can take time.
d. Appellate court decision.
- Whether there are oral arguments or not, the appellate court will issue a written decision.
- The appellate court can make the following decisions in an appellate case:
- Affirm–the court has concluded that the trial court was correct, and its decision stands.
- Remand–the court returns the case to the trial court to make a finding of fact in one or more aspects of the case.
- Reverse–the court has decided that the trial court’s decision was in error and has undone the decision of the trial court.36See id.
- The court’s decision does not have to be unanimous, but a majority must agree on the outcome.37Id.
A supreme court justice can either dissent or concur with the majority opinion.
- A dissenting opinion is when the authoring judge disagrees with the majority opinion.38See Courts, supra.
- A concurring opinion is when the authoring judge agrees with the majority opinion but for different reasons.39See id.
e. After the decision.
- If one of the parties does not agree with the appellate court’s decision, then the party can ask the court to reconsider its decision by filing a petition for rehearing.40Id.
- The petition is intended to include points of law or fact that the party thinks the court has overlooked or misunderstood.
- If the petition for rehearing is denied, a party may file a petition for writ of certiorari with the Utah Supreme Court. However, if the petition for writ of certiorari is denied, no more appeals are available in the Utah State Courts.41Id.
- After the case is finished completely in the appellate court, the appellate court returns the record to the trial court and gives up its jurisdiction.42Id.
OTHER INFORMATION REGARDING CIVIL LAW PROCEDURES
Another thing that happens in the time between the opening of a case and trial is negotiation.
Trials are expensive and can last for days. Additionally, a lot of paperwork, preparation, and time goes into preparing a civil case. As a result, the parties will look for ways to avoid going to trial. One way parties do this is by negotiating a deal that everyone will be happy with.
The parties can also create an alternative dispute resolution process that allows them to negotiate a deal without trial.
Whether it is family law or suing someone for damages, it can be intimidating to face the system alone.
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