Vincent D. Sowerby, attorney at law
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Law Office of Vincent D. Sowerby, P.C.
On the corner of G and Newcastle Streets, downtown Brunswick, Georgia
Telephone: 912-280-0330 Fax: 912-280-0331
E-mail address: vince@sowerbylaw.com
On the corner of G and Newcastle Streets, downtown Brunswick, Georgia
Telephone: 912-280-0330 Fax: 912-280-0331
E-mail address: vince@sowerbylaw.com
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INTRODUCTION:
The Rules of Civil Procedure determine how cases are started,
managed and finished. It is a set of rules that provide procedure.
There is a federal Civil Practice Act that is applied in the
United States District Courts. Georgia has also adopted a Civil
Practice Act that is modeled after, and even uses the same
numbering scheme as, the federal Civil Practice Act, but there are
significant differences between the two. The Civil Practice Act
was intended to promote a the just, speedy and inexpensive
determination of every case on the merits, instead of on technical
rules of pleading. Sometimes though, procedural rules determine
the outcome of the case. This page will barely scratch the surface
of the Civil Practice Act.
The Rules of Civil Procedure determine how cases are started,
managed and finished. It is a set of rules that provide procedure.
There is a federal Civil Practice Act that is applied in the
United States District Courts. Georgia has also adopted a Civil
Practice Act that is modeled after, and even uses the same
numbering scheme as, the federal Civil Practice Act, but there are
significant differences between the two. The Civil Practice Act
was intended to promote a the just, speedy and inexpensive
determination of every case on the merits, instead of on technical
rules of pleading. Sometimes though, procedural rules determine
the outcome of the case. This page will barely scratch the surface
of the Civil Practice Act.
CIVIL PROCEDURE
HOW CASES ARE STARTED:
All civil cases begin when a plaintiff gives the clerk of court a complaint, petition or application. This document sets
forth identity of the parties, says what happened, and says what the plaintiff wants. The part that says what happened
are the allegations while the part that says what the plaintiff wants are the prayers for relief. The clerk will put the
documents in a file folder which is numbered. The first case filed during a given year is invariably going to be
numbered "1" in some sort of fashion and the very last case filed on December 31 will tell us exactly how many civil
cases got filed during the course of that year. In some courts, the case will be assigned to a particular judge. The
assignments are random in order to prevent the parties from picking a particular judge. The Clerk will issue a
summons. In a Georgia Court, the clerk of court then sends the Complaint and Summons to the sheriff to be served
on the defendant. What constitutes valid service of process can be complicated. Best thing is to hand deliver the
papers directly to the defendant. In federal court, it is rare for the clerk of court to send the papers to the U.S.
Marshal for service. It's up to the plaintiff to use a private process server, which is also an option in a Georgia court.
In federal court, the defendant only has 20 days in which to file an Answer, in which he will probably deny the
important allegations of the plaintiff's complaint. If a defendant does not deny, then the allegations are automatically
admitted. If an allegation is admitted, it does not need to be proved by evidence at a trial. The Rules of Civil
Procedure require that some defenses be raised in the Answer or they are waived. These defenses are primarily
procedural, such as insufficiency of process or service of process, improper venue (case was filed in the wrong
court), and lack of jurisdiction over the defendant's person. There are also some "affirmative defenses" which have to
be raised in an answer as well.
The filing of an answer "frames the issues", meaning that the plaintiff now has the burden to prove whatever allegations
the defendant denied.
All civil cases begin when a plaintiff gives the clerk of court a complaint, petition or application. This document sets
forth identity of the parties, says what happened, and says what the plaintiff wants. The part that says what happened
are the allegations while the part that says what the plaintiff wants are the prayers for relief. The clerk will put the
documents in a file folder which is numbered. The first case filed during a given year is invariably going to be
numbered "1" in some sort of fashion and the very last case filed on December 31 will tell us exactly how many civil
cases got filed during the course of that year. In some courts, the case will be assigned to a particular judge. The
assignments are random in order to prevent the parties from picking a particular judge. The Clerk will issue a
summons. In a Georgia Court, the clerk of court then sends the Complaint and Summons to the sheriff to be served
on the defendant. What constitutes valid service of process can be complicated. Best thing is to hand deliver the
papers directly to the defendant. In federal court, it is rare for the clerk of court to send the papers to the U.S.
Marshal for service. It's up to the plaintiff to use a private process server, which is also an option in a Georgia court.
In federal court, the defendant only has 20 days in which to file an Answer, in which he will probably deny the
important allegations of the plaintiff's complaint. If a defendant does not deny, then the allegations are automatically
admitted. If an allegation is admitted, it does not need to be proved by evidence at a trial. The Rules of Civil
Procedure require that some defenses be raised in the Answer or they are waived. These defenses are primarily
procedural, such as insufficiency of process or service of process, improper venue (case was filed in the wrong
court), and lack of jurisdiction over the defendant's person. There are also some "affirmative defenses" which have to
be raised in an answer as well.
The filing of an answer "frames the issues", meaning that the plaintiff now has the burden to prove whatever allegations
the defendant denied.
DISCOVERY:
The Rules of Civil Procedure allow one party to propound interrogatories, to request the production of
documents, to request that certain matters be admitted, to inspect places or things, and to depose witnesses.
Interrogatories are written questions that have to be answered under oath in writing. A Request for Production
of Documents is just like a subpoena requiring that the materials requested be produced and copied. A
deposition is where a witness is placed under oath and asked questions, pretty much the same as at a trial.
Taken together this process is called discovery, because it's a process whereby the parties are allowed to
discover the cards in the other player's hand. The process is supposed to avoid an ancient evil known as trial
by ambush, where everyone comes into court not really knowing what evidence the opponent has. The
process is supposed to work without any involvement by the court and is supposed to be quick, cheap and
efficient. In Georgia everyone gets at least six months to conduct discovery. In federal court, the goal is to
have it all done much faster.
Unfortunately, the process has been abused. There has been much debate among courts, lawyers, lawyers'
groups, and bar associations in recent years lamenting the abuse. Sometimes parties or their lawyers act in
bad faith and intentionally try to hide information which is properly requested through discovery or otherwise
intentionally try to make the process as long, hard and drawn out as possible. When judges first see that
someone is not disclosing information in a timely manner, they will order that the disclosure be made within a
given time frame. If the disclosure is still not forthcoming, the judge can impose sanctions, the most drastic of
which is to dismiss the complaint or strike the answer, in which event the opponent wins the case. More often
than not, however, a judge will order that the non-disclosing party pay some attorneys fees. Sometimes those
fees can be substantial. Of course, the only way a judge will ever get involved in the discovery process is if a
party makes a motion about it, such as a motion to compel a response, a motion for a protective order to avoid
making a response, or a motion for sanctions.
While it would not constitute abuse worthy of sanction by the court, it has become very common, thanks to the
copy and paste ability of word processors, for responses to legitimate discovery to contain page after page of
boilerplate objections to each and every single question. The most absurd objections are the long-winded
ones to the interrogatory that asks the opposing party to give his correct legal identity and the interrogatory
that asks for the names, addresses and telephone numbers of witnesses.
Getting through the discovery process is sometimes quick and relatively inexpensive, but other times it
becomes a major battleground.
The Rules of Civil Procedure allow one party to propound interrogatories, to request the production of
documents, to request that certain matters be admitted, to inspect places or things, and to depose witnesses.
Interrogatories are written questions that have to be answered under oath in writing. A Request for Production
of Documents is just like a subpoena requiring that the materials requested be produced and copied. A
deposition is where a witness is placed under oath and asked questions, pretty much the same as at a trial.
Taken together this process is called discovery, because it's a process whereby the parties are allowed to
discover the cards in the other player's hand. The process is supposed to avoid an ancient evil known as trial
by ambush, where everyone comes into court not really knowing what evidence the opponent has. The
process is supposed to work without any involvement by the court and is supposed to be quick, cheap and
efficient. In Georgia everyone gets at least six months to conduct discovery. In federal court, the goal is to
have it all done much faster.
Unfortunately, the process has been abused. There has been much debate among courts, lawyers, lawyers'
groups, and bar associations in recent years lamenting the abuse. Sometimes parties or their lawyers act in
bad faith and intentionally try to hide information which is properly requested through discovery or otherwise
intentionally try to make the process as long, hard and drawn out as possible. When judges first see that
someone is not disclosing information in a timely manner, they will order that the disclosure be made within a
given time frame. If the disclosure is still not forthcoming, the judge can impose sanctions, the most drastic of
which is to dismiss the complaint or strike the answer, in which event the opponent wins the case. More often
than not, however, a judge will order that the non-disclosing party pay some attorneys fees. Sometimes those
fees can be substantial. Of course, the only way a judge will ever get involved in the discovery process is if a
party makes a motion about it, such as a motion to compel a response, a motion for a protective order to avoid
making a response, or a motion for sanctions.
While it would not constitute abuse worthy of sanction by the court, it has become very common, thanks to the
copy and paste ability of word processors, for responses to legitimate discovery to contain page after page of
boilerplate objections to each and every single question. The most absurd objections are the long-winded
ones to the interrogatory that asks the opposing party to give his correct legal identity and the interrogatory
that asks for the names, addresses and telephone numbers of witnesses.
Getting through the discovery process is sometimes quick and relatively inexpensive, but other times it
becomes a major battleground.
TRIALS:
All jury trials are the same. They begin with jury selection. Then the party with the burden of proof, which is always
the plaintiff, makes an opening statement to tell the jury what evidence is anticipated, followed by the defendant's
opening statement. Then the plaintiff presents his case. He does so by calling witnesses to testify on direct
examination, which is to say that the lawyer cannot ask leading questions. A leading question is one that suggests the
answer ("Your name is Bob, isn't it?" instead of "What is your name?") The defense lawyer then cross-examines the
witness. Leading questions are allowed on cross. When the plaintiff has presented his case in full, he rests, whereupon
the defendant then moves for a directed verdict, arguing that the plaintiff failed to prove some critical part of the case.
The judge then denies that motion and the defendant is allowed to present his case by calling his witnesses for direct
examination. The plaintiff's lawyer cross examines. When the defendant has presented all his evidence, which
incidentally consists of nothing but witness testimony and exhibits which the jury will be allowed to take back into the
jury deliberation room, he rests. If the plaintiff has some evidence to rebut the defense, he presents it now. That's
called rebuttal. When he is done, the defendant may present evidence to rebut the rebuttal. That's called sur-rebuttable
and it goes on like that, getting shorter and shorter until finally all the evidence is in.
At this point the judge tells the jury to leave the courtroom. While they are gone, the Plaintiff makes a motion for
directed verdict which the judge will most likely deny. Then the lawyers and the judge discuss what law the judge will
read to the jury and how it will be worded. Once the judge has informed the lawyers what law he will give and what
law he will not give, then the jury is brought back into the courtroom. The plaintiff may chose to argue to the jury once
or twice. If he chooses twice, then the plaintiff "opens" or has the "opening argument." If not, then the defendant
argues first. When the defendant finishes, then the plaintiff' always gets the final or "closing" argument. In argument,
the lawyers are allowed to make just about any argument they want, no matter how illogical or unreasonable it may be.
Some are arguments are not permitted because they are just plain unfair.
Now the judge "charges the jury", also known as "instructing" them. It's really just the judge reading law to the jurors,
which also includes an explanation of the verdict form. Then the jury leaves the room. The judge asks the lawyers if
they have any objections to the charge. If the judge agrees that a mistake was made, he calls the jury back into the
courtroom and corrects the mistake. If a party does not make an objection to the charge now, he will not be heard to
complain about the charge on appeal.
The exhibits are collected and sent to the jury. They deliberate and come back and render the verdict. Jurors are
dismissed. Now parties renew their motions for directed verdict, but this time they are called motion for judgment
notwithstanding the verdict, or JNOV for short. Most judges always deny a motion for directed verdict, even if he
thinks it should be granted, hoping the jury will render of verdict in favor of the movant. If the jury does not, then
judge grants JNOV, which is to say he tosses out the jury's verdict as wrong. Either party can also ask the judge to
overrule the jury on the amount of money awarded, either up or down and the judge has the power to tell one party that
they either accept the new amount of he will grant a new trial as to damages. So, if the judge decreases the jury's
award as requested by the defendant, then the plaintiff either accepts the decreased amount or gets to try the case on
damages all over again with another jury. If the judge increases the money, then it's the defendant's option to accept the
increased amount or have a new trial. It is also possible for either party to ask for a new trial as to liability on various
other grounds.
All jury trials are the same. They begin with jury selection. Then the party with the burden of proof, which is always
the plaintiff, makes an opening statement to tell the jury what evidence is anticipated, followed by the defendant's
opening statement. Then the plaintiff presents his case. He does so by calling witnesses to testify on direct
examination, which is to say that the lawyer cannot ask leading questions. A leading question is one that suggests the
answer ("Your name is Bob, isn't it?" instead of "What is your name?") The defense lawyer then cross-examines the
witness. Leading questions are allowed on cross. When the plaintiff has presented his case in full, he rests, whereupon
the defendant then moves for a directed verdict, arguing that the plaintiff failed to prove some critical part of the case.
The judge then denies that motion and the defendant is allowed to present his case by calling his witnesses for direct
examination. The plaintiff's lawyer cross examines. When the defendant has presented all his evidence, which
incidentally consists of nothing but witness testimony and exhibits which the jury will be allowed to take back into the
jury deliberation room, he rests. If the plaintiff has some evidence to rebut the defense, he presents it now. That's
called rebuttal. When he is done, the defendant may present evidence to rebut the rebuttal. That's called sur-rebuttable
and it goes on like that, getting shorter and shorter until finally all the evidence is in.
At this point the judge tells the jury to leave the courtroom. While they are gone, the Plaintiff makes a motion for
directed verdict which the judge will most likely deny. Then the lawyers and the judge discuss what law the judge will
read to the jury and how it will be worded. Once the judge has informed the lawyers what law he will give and what
law he will not give, then the jury is brought back into the courtroom. The plaintiff may chose to argue to the jury once
or twice. If he chooses twice, then the plaintiff "opens" or has the "opening argument." If not, then the defendant
argues first. When the defendant finishes, then the plaintiff' always gets the final or "closing" argument. In argument,
the lawyers are allowed to make just about any argument they want, no matter how illogical or unreasonable it may be.
Some are arguments are not permitted because they are just plain unfair.
Now the judge "charges the jury", also known as "instructing" them. It's really just the judge reading law to the jurors,
which also includes an explanation of the verdict form. Then the jury leaves the room. The judge asks the lawyers if
they have any objections to the charge. If the judge agrees that a mistake was made, he calls the jury back into the
courtroom and corrects the mistake. If a party does not make an objection to the charge now, he will not be heard to
complain about the charge on appeal.
The exhibits are collected and sent to the jury. They deliberate and come back and render the verdict. Jurors are
dismissed. Now parties renew their motions for directed verdict, but this time they are called motion for judgment
notwithstanding the verdict, or JNOV for short. Most judges always deny a motion for directed verdict, even if he
thinks it should be granted, hoping the jury will render of verdict in favor of the movant. If the jury does not, then
judge grants JNOV, which is to say he tosses out the jury's verdict as wrong. Either party can also ask the judge to
overrule the jury on the amount of money awarded, either up or down and the judge has the power to tell one party that
they either accept the new amount of he will grant a new trial as to damages. So, if the judge decreases the jury's
award as requested by the defendant, then the plaintiff either accepts the decreased amount or gets to try the case on
damages all over again with another jury. If the judge increases the money, then it's the defendant's option to accept the
increased amount or have a new trial. It is also possible for either party to ask for a new trial as to liability on various
other grounds.
MOTIONS:
A motion is any request for the court to make a ruling. It can be oral or
written. Oral motions are made during trials and hearings and are ruled on by the
court right then and there. Written motions are filed with the clerk and the
opposing party has a given time frame, usually 30 days, in which to respond. There
are various discovery motions as discussed above. There are motions to dismiss for
lack of jurisdiction. There are motions for just about everything you can imagine.
A motion for summary judgment is common. The idea behind it is sweet. Simply
speaking, where there is no question of fact for a jury to resolve, there is no need
for a jury and the judge will issue judgment summarily, thus saving the parties and
everyone involved in our judicial system a lot of time, effort and expense. For
example, if the defendant in a car crash case is alleged to have run the red light
and all ten witnesses say his light was red, then the plaintiff ought to win on the
issue of negligence without being forced to go to trial. So that plaintiff would be
entitled to summary judgment on that issue. If, however, nine credible witnesses
say the defendant's light was red, but just one nutjob witness says it was green,
then the jury has to decide whether the light was red or green, no matter how
unbelievable the one witness is. In reality, summary judgment can get very complex
as it's not just any old question of fact. There has to be an absence of a genuine
issue of material fact, which means the parties can argue over whether the fact is
material to the outcome of the case or whether an issue is genuine in that it's
resolution one way or the other does or does not affect the outcome of the case.
A motion for summary judgment is generally made after all the discovery is done. It
requires a fairly massive investment of an attorney's time. While the attorney may
know the facts of the case very well off the top of his head, he still has to cite
the 300 page transcript of a witness' deposition that seems to take forever to
locate. There have been many cases where it was faster for the lawyer, cheaper for
the client, but more expensive to taxpayers, just to defend a case at trial than it
would be to prepare and file a motion for summary judgment. Some judges love
summary judgment. Some hate it.
A motion is any request for the court to make a ruling. It can be oral or
written. Oral motions are made during trials and hearings and are ruled on by the
court right then and there. Written motions are filed with the clerk and the
opposing party has a given time frame, usually 30 days, in which to respond. There
are various discovery motions as discussed above. There are motions to dismiss for
lack of jurisdiction. There are motions for just about everything you can imagine.
A motion for summary judgment is common. The idea behind it is sweet. Simply
speaking, where there is no question of fact for a jury to resolve, there is no need
for a jury and the judge will issue judgment summarily, thus saving the parties and
everyone involved in our judicial system a lot of time, effort and expense. For
example, if the defendant in a car crash case is alleged to have run the red light
and all ten witnesses say his light was red, then the plaintiff ought to win on the
issue of negligence without being forced to go to trial. So that plaintiff would be
entitled to summary judgment on that issue. If, however, nine credible witnesses
say the defendant's light was red, but just one nutjob witness says it was green,
then the jury has to decide whether the light was red or green, no matter how
unbelievable the one witness is. In reality, summary judgment can get very complex
as it's not just any old question of fact. There has to be an absence of a genuine
issue of material fact, which means the parties can argue over whether the fact is
material to the outcome of the case or whether an issue is genuine in that it's
resolution one way or the other does or does not affect the outcome of the case.
A motion for summary judgment is generally made after all the discovery is done. It
requires a fairly massive investment of an attorney's time. While the attorney may
know the facts of the case very well off the top of his head, he still has to cite
the 300 page transcript of a witness' deposition that seems to take forever to
locate. There have been many cases where it was faster for the lawyer, cheaper for
the client, but more expensive to taxpayers, just to defend a case at trial than it
would be to prepare and file a motion for summary judgment. Some judges love
summary judgment. Some hate it.
JUDGMENTS:
A judgment is the end of the case. It's what the entire process is all about from the first moment you
thought about needing to hire a lawyer. If the case is an "action at law" and does not involve any
equity, then the judgment is very short. It says either one party owes a specific sum of money to the
other or no-one owes anyone anything. A judgment is just a piece of paper. If it can't be turned into
cash, it can always be framed and hung on a wall.
To turn a judgment into cash can be difficult. First the clerk will issue a Writ of Fieri Facias, which in
north Georgia is called a "fee fah", but in south Georgia is called a "fi fay." It is recorded on the
General Execution Docket and becomes a lien on any property of the defendant located in that
county. There are 159 counties in Georgia, so theoretically, a Fi. Fa. could be recorded in 159
General Execution Dockets. They are matters of public record so I have no hesitation in linking to a
.pdf image of the front and back of a real one which has been recorded on the G.E.D.'s of two
counties.
A judgment is the end of the case. It's what the entire process is all about from the first moment you
thought about needing to hire a lawyer. If the case is an "action at law" and does not involve any
equity, then the judgment is very short. It says either one party owes a specific sum of money to the
other or no-one owes anyone anything. A judgment is just a piece of paper. If it can't be turned into
cash, it can always be framed and hung on a wall.
To turn a judgment into cash can be difficult. First the clerk will issue a Writ of Fieri Facias, which in
north Georgia is called a "fee fah", but in south Georgia is called a "fi fay." It is recorded on the
General Execution Docket and becomes a lien on any property of the defendant located in that
county. There are 159 counties in Georgia, so theoretically, a Fi. Fa. could be recorded in 159
General Execution Dockets. They are matters of public record so I have no hesitation in linking to a
.pdf image of the front and back of a real one which has been recorded on the G.E.D.'s of two
counties.
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INTERPLEADER:
Where one person has possession of something, usually money, which he knows is not
his (and thus he has no claim to it), but he has more than one person making a claim
to it, then an interpleader is the remedy. The person sues the two other people who
are making a claim to the money, gives the money to the court and is done. The two
people who claim the money then fight it out to see who gets it.
Where one person has possession of something, usually money, which he knows is not
his (and thus he has no claim to it), but he has more than one person making a claim
to it, then an interpleader is the remedy. The person sues the two other people who
are making a claim to the money, gives the money to the court and is done. The two
people who claim the money then fight it out to see who gets it.
COUNTERCLAIMS, CROSS-CLAIMS & THIRD PARTY CLAIMS:
When a defendant has a claim against the plaintiff, then defendant may counterclaim against the
plaintiff. If the counterclaim arises out of the same facts or transaction, the defendant must assert the
counterclaim or be forever barred. If, however, the defendant's claim is unrelated to the plaintiff's claim
against the defendant, then the defendant may choose to assert it in a counterclaim or may choose to
assert it in a separate action in which he is the plaintiff.
When a defendant has a claim against another defendant, it is asserted by cross-claim. The most
common cross-claim is where one defendant says that if he owes any money to the plaintiff, then the
other defendant owes it to him.
A third-party claim is where the defendant brings a new party into the action on the theory that if the
defendant is liable to the plaintiff, then the third-party defendant is liable to the defendant, except that
now the defendant is also called a "third-party plaintiff."
When a defendant has a claim against the plaintiff, then defendant may counterclaim against the
plaintiff. If the counterclaim arises out of the same facts or transaction, the defendant must assert the
counterclaim or be forever barred. If, however, the defendant's claim is unrelated to the plaintiff's claim
against the defendant, then the defendant may choose to assert it in a counterclaim or may choose to
assert it in a separate action in which he is the plaintiff.
When a defendant has a claim against another defendant, it is asserted by cross-claim. The most
common cross-claim is where one defendant says that if he owes any money to the plaintiff, then the
other defendant owes it to him.
A third-party claim is where the defendant brings a new party into the action on the theory that if the
defendant is liable to the plaintiff, then the third-party defendant is liable to the defendant, except that
now the defendant is also called a "third-party plaintiff."
PRE-TRIAL ORDER:
A Pre-Trial Order is a document that tells a judge everything a judge needs to know about a case in order to
conduct a jury trial. It is a document that is assembled by the lawyers and sets forth the plaintiff's case and the
defendant's case, lists all the exhibits that might be put into evidence, lists all the witnesses that may be called to
testify, and covers various other matters. A Pre-Trial Order is an important document as it controls the trial,
the evidence and theories of recovery.
A Pre-Trial Order is a document that tells a judge everything a judge needs to know about a case in order to
conduct a jury trial. It is a document that is assembled by the lawyers and sets forth the plaintiff's case and the
defendant's case, lists all the exhibits that might be put into evidence, lists all the witnesses that may be called to
testify, and covers various other matters. A Pre-Trial Order is an important document as it controls the trial,
the evidence and theories of recovery.
