Family Lawyer Heber City Utah
Someone first receives official notice that he has been sued by receiving the plaintiff’s complaint and an accompanying summons from the court. The summons typically directs the now-defendant to answer the complaint, but the defendant actually has a number of different ways of responding to being sued. If you have been served with a summons in a family dispute, contact an experienced Heber Utah family lawyer.
First, the defendant can simply ignore the whole thing. If the defendant in a criminal case fails to answer a summons or appear for trial, the police can go out and arrest her. Not so in a civil case. But that doesn’t mean that anyone can just ignore a complaint. The sanction for failing to respond to the complaint is that the plaintiff can get the court to enter a default against the defendant. A default prevents the defendant from subsequently entering any defenses on the merits of the case, and the plaintiff can proceed to get a default judgment that concludes the case against the defendant and then can attempt to enforce it like any other judgment.
Sometimes a defendant may take the chance of ignoring a complaint and having a default judgment entered against it because the defendant doesn’t think the plaintiff will be willing or able to enforce the judgment. The second tack the defendant can take is to raise an objection to being sued that is unrelated to the merits of the case. The objection takes the form of a motion to dismiss. A motion is a formal request to the court, here to get rid of the case without ever reaching the substance of what happened.
Some of these objections are trivial. A defendant can say that there was a technical defect in the form of the summons or in the method of service of process, sending the complaint and summons by mail, for example, when personal service is required. If the plaintiff can cure the defect, in this case by personally serving the defendant, then the objection may delay the case but doesn’t halt it altogether. If the plaintiff cannot cure the defect because the defendant is unavailable to be served, then the defendant’s strategy may prevent the case from going forward at all.
A more important basis for a motion to dismiss is that the court lacks jurisdiction over the defendant or the case. Recall that a court can only render a binding judgment in a case when it has jurisdiction, or authority over the subject matter of the case and over the parties. If the defendant demonstrates that the court lacks jurisdiction, the court has no power to do anything other than officially recognize its lack of jurisdiction by dismissing the case.
The third move the defendant might make is to challenge the legal sufficiency of the plaintiff’s complaint. This procedure was classically known as a demurrer, and is today more commonly referred to as a motion to dismiss for failure to state a claim or failure to state a cause of action. In such a motion to dismiss, the defendant argues that even if all of the facts that the plaintiff alleges are true, there is no legal basis for holding the defendant liable to the plaintiff. The motion therefore tests the strength of the plaintiff’s legal argument without getting into the facts underlying the dispute.
If the defendant has no basis for making a motion to dismiss the complaint, or if any motions to dismiss fail, the defendant finally has to meet the complaint on the merits of the case. The defendant does this by filing a pleading called an answer, which, obviously, answers the allegations made in the plaintiff’s complaint. The defendant can meet the plaintiff’s allegations in three ways, by saying “no” (denying that the allegations are true), “I don’t know” (disclaiming knowledge about the allegations), or “yes, but” (admitting the allegations but stating facts that would provide a defense to the plaintiff’s claims).
Ideally, a defendant might like to deny everything the plaintiff said in its complaint, thereby hiding all the information the defendant has about the case and putting the plaintiff to the trouble of proving every piece of information it needed to establish its claim. In former times and in a few jurisdictions today, the defendant could accomplish that through a general denial, which places into contention every allegation in the complaint. Most courts no longer permit a general denial, though, because in most cases it subverts the purposes of the pleadings and the goals of the procedural system. The pleading process is designed to help identify and narrow the issues that are in dispute. If the defendant, through a general denial, controverts an allegation that it knows to be true, an issue that could be excluded is raised unnecessarily.
Sometimes the defendant will admit that the essential elements of the plaintiff’s complaint may be true, but the defendant will argue that the complaint doesn’t tell the whole story. If so, in its answer, the plaintiff can raise an affirmative defense. A defense introduces a new factor that eliminates or reduces the defendant’s liability even if all of the elements of the plaintiff’s claim are established.
Often the defendant doesn’t know whether some of the plaintiff’s claims are true. In that case, the rules of civil procedure permit the defendant to say, in effect, “I don’t know.” This puts the issue into dispute and the plaintiff has to come up with its proof. Of course, the desire to promote candor and to define the disputed issues through the pleadings requires that the defendant really not know if the plaintiff’s allegation is true, and courts often extend that requirement to force the defendant to engage in a reasonable degree of investigation to ascertain the truth. If, for example, the allegation concerns some facts about what the defendant itself did, the defendant cannot profess lack of knowledge. Once again, the goal of the process is to efficiently define what the parties are really disputing about and what they can agree on.
Usually we think of a lawsuit as involving two people, the plaintiff and the defendant. But even an ordinary action may involve multiple parties. In addition to involving multiple parties, lawsuits often involve multiple claims.
It would be possible to proceed to trial without each party finding out in advance what the other knows. But modern civil procedure uses a more open system in which each party has an extensive opportunity to unearth all of the facts relevant to the litigation during the pretrial stage of the litigation. To obtain information that is in the adversary’s possession, or that can be most easily obtained from the adversary even though it may be available elsewhere, a party can interview the other party under oath, called a deposition; submit written questions, called interrogatories; demand that documents or other physical evidence be produced; require the other party to submit to a physical examination; and ask the other party to admit the truth of facts relevant to the litigation.
A deposition is an oral examination of the other party or someone else with knowledge of the case. A deposition is like the examination of a witness at trial, in that it is conducted by an attorney, a verbatim record is made, and the witness is under oath; the key differences are that the examination is not conducted in front of a judge and there is no cross-examination. Instead, a court reporter swears in the witness and records the testimony. By taking someone’s deposition, an attorney can find out what that person knows in a flexible way; the answer to one question may open up a new line of inquiry. If the witness might testify in an adverse way at trial, the deposition pins down the testimony, allowing the attorney to develop contrary evidence or to use inconsistencies between the deposition testimony and subsequent testimony at trial. It also gives both attorneys a chance to assess how good the witness will be at trial–not only what she says, but how persuasive or credible she is.
The disadvantage of taking depositions is the expense. In a typical deposition, the attorneys for both sides will be present, running up their fees, and the court reporter must be paid, too. One way of reducing this cost is to submit written questions (interrogatories), to be answered under oath. All the attorney has to do is prepare and submit the interrogatories, not be present at a deposition; therefore, interrogatories can be much cheaper, especially because standard form interrogatories are often used for routine aspects of cases.
Interrogatories also place on the adversary the responsibility of ascertaining the facts needed to respond to the questions posed. The disadvantage of interrogatories, though, is that they are inflexible and not spontaneous. The answers often are crafted by the attorney for the responding party to be responsive but not particularly forthcoming, cryptic, and narrowly drawn to give no more information than is absolutely necessary. Nor can an attorney follow up on the answer to one question by asking another; the attorney has to anticipate all the questions that might be asked and include them in the original set of interrogatories.
In connection with depositions or interrogatories, or in a separate request, one party can demand that the other produce documents or other evidence.
Where someone’s physical or mental condition is at issue in the case, one party can ask the court to require them to submit to a medical examination. And a party must disclose whether it has retained an expert to testify at trial and what the expert will testify about.
Finally, where one party believes that some facts are undisputed, that party can request the other to admit that they are true, narrowing down the issues to be tried.
Pretrial discovery has significant advantages over a system of trial by surprise in achieving a fair and efficient process, and in promoting the values of the underlying substantive law. Simply at a practical level, it focuses the recollection of witnesses at an early stage and preserves information that otherwise might not be available at the time of trial. Because it typically takes years for a civil case to come to trial, witnesses may forget details about: events or may even die, and documents or other evidence may be lost or destroyed. Discovery comes well before trial, when recollections are fresher and evidence is more likely to still be available.
More importantly, through discovery the parties learn the contours of each others’ cases and clarify which issues actually are in controversy. This helps the parties to prepare for trial and negotiate a settlement because it narrows down what is involved in a case and gives them a sense of the strength and weakness of each party’s position.
Finally, discovery furthers the law’s substantive values by making it possible to bring actions or assert defenses that could not be done in the absence of full discovery, and by allowing the parties to bring out all of the evidence that might relate to the application of the relevant rules of law. Only when the parties discover and present at trial all of the evidence that bears on the case can the relevant rules of law be correctly applied.
These functions of discovery suggest that the scope of discovery–what information parties can discover and what tools they can use to obtain it–should be very broad, and in most court systems it is.
Seek the assistance of an experienced Utah family lawyer
As the defendant in a Utah family law dispute, there is a lot at stake. You should appear in the court on the date listed in the summons and defend the case against you. Utah family law is complex. Seek the assistance of an experienced Heber Utah family lawyer. The lawyer will review your case and advise you on your options. Never attempt to self defend yourself in order to save on attorney fees. It will prove costly.
Heber City Utah Family Law Attorney Free Consultation
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506