February 5, 2015: Civil Litigation – The Basics

(Last Updated On: January 24, 2017)

In legal terms, civil cases typically involve private disputes between persons while criminal cases involve disputes between the government and persons whose actions are considered harmful to society and subject to punishment by fines or imprisonment.

Civil cases may be resolved by negotiation, mediation, arbitration or litigation.  This article will discuss the litigation of civil cases.

A civil case begins when one party, called the plaintiff, files a complaint setting forth a claim that another person, called a defendant, has breached some legal duty established by our Constitution, federal or state law, and is liable for the resulting damages.  The plaintiff asks the Court, either by judge or jury, to determine liability and award compensation for damages resulting from a breach. The case may be filed in federal or state court depending on the source of the legal duty involved and amount of damages claimed.  As an example, a case claiming a breach of contract between two Virginia residents would be filed in state court while a similar case for breach of contract between a resident of Virginia and a resident of another state and seeking more than $75,000 in damages could be filed in state or federal court.  Cases claiming violations of constitutional or federal statutory rights may also be filed in federal court.

In Virginia, civil cases involving $25,000 or less may be filed in General District Court and are decided by a judge.  Cases involving more than $25,000 are filed in Circuit Court and may be decided, at the parties’ option, by a judge or a jury.  In all cases, either the judge or jury examines the evidence and decides whether, under the applicable standard of proof, it establishes that the defendant is legally responsible for damages sustained by the plaintiff.  The applicable standard of proof is “preponderance of the evidence” in negligence or breach of contract cases and “clear and convincing” in cases involving fraud.

Civil trials consist of phases

(1)        jury selection;

(2)        opening statements;

(3)        presentation of evidence;

(4)        closing arguments;

(5)        jury instructions; and

(6)        verdict and judgment.

(1)        Jury Selection

A civil jury of seven (7) persons selected from a pool of citizens following questions by the judge and the parties’ respective attorneys.  Potential jurors may be dismissed based on their responses to the questions.  Additionally, both the plaintiff and defendant may exclude a certain number of jurors through “peremptory” and “for cause” challenges.  “Peremptory” challenges may be used to exclude a juror for any reason except improper reasons (such as discrimination), whereas a “for cause” challenge may only be used to exclude a juror for reasons such as bias.

(2)        Opening Statements

After jury selection, each of the parties’ respective attorneys present opening statements.  The opening statement is the opportunity for each party to outline what that party expects the evidence to prove.  The opening statements are not evidence.  The plaintiff who bears the burden of proof is given the first opportunity to make an opening statement.  The plaintiff’s opening is followed by that of the defendant. When a civil case involves numerous parties, each is allowed to a separate opening statement.

(3)        Presentation of Evidence

The next phase of the civil trial is the presentation of evidence in the form of witness testimony and physical evidence or exhibits.  Again, the plaintiff presents its evidence first.  The plaintiff typically calls witnesses, including experts in some cases, to provide testimony and may also introduce physical evidence such as photographs, medical records and other documents.  After the plaintiff has concluded its case “in chief,” the defendant may present its evidence in the form of witness testimony and physical evidence, etc.  In all cases, witness testimony is presented under oath and through “direct” examination by the party calling the witness followed by “cross” examination by the opposing party.  The party that originally called the witness has an opportunity for “re‑direct” examination and the opposing party an opportunity for “re‑cross” examination.

Once the defendant has concluded its case and “rests,” the plaintiff has an opportunity to present additional or “rebuttal” evidence which specifically contradicts the defendant’s evidence.

(4)        Closing Arguments

After each side has concluded its presentation of evidence and “rests,” the parties present closing arguments by their respective attorneys.  The closing argument summarizes the evidence presented with emphasis on that most favorable to the party presenting the argument.  The plaintiff attempts to convince the jury that the evidence requires a verdict in favor of the plaintiff while the defendant attempts to convince the jury that the plaintiff has failed to meet its burden of proof to establish defendant’s liability or an award of damages.  Typically the parties are given wide latitude in presenting closing arguments subject to the discretion of the Court.

(5)        Jury Instructions

The next phase of a civil trial with a jury is the process of jury instruction.  Each of the parties is given an opportunity to request instructions, which reflect the applicable law, that will govern the jury’s deliberation in deciding liability of damages. The judge decides what instructions apply to the case based on the claims at issue and evidence presented.  A party may object to the judge’s decision to grant or refuse a proffered instruction for possible appeal.  The judge then reads the instructions to the jury and advises what findings the jury must make in order to arrive at its verdict and the types of damages which may be awarded.

(6)        Verdict and Judgment

After receiving the instructions from the judge, the jury retires to a jury room to deliberate and attempt to agree on a verdict.  The verdict must be unanimous in Virginia.  When the jury has agreed on its verdict, the jury foreperson informs the bailiff or deputy sheriff who informs the judge.  The jury returns to the courtroom and the judge announces the verdict in open court.  In some cases a jury may be unable to reach a verdict (a “hung” jury), the judge declares a “mistrial,” and the case remains on the docket pending retrial or settlement and dismissal.  After considering any post-trial motions the judge enters an order of judgment for the plaintiff or defendant.

A substantial majority of civil cases are resolved before trial through negotiated or mediated settlements.  By some estimates, over 90% of civil cases are resolved by settlement in order to avoid the costs, both financial and emotional, and risks of trial.  Plaintiffs may agree to accept a lesser sum than desired to assure at least some recovery while defendants agreed to pay some amount to avoid additional costs and risks of a larger award at trial.  One study indicates that going to trial was better than settlement for both parties in only 15% of cases (“meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered.”)[1]  Even though used less frequently, the option of resolving civil disputes by trial remains an essential component of our legal system.


[1] Jonathan D. Glater, “Study Finds Settling is Better than Going to Trial,” The New York Times, August 7, 2008.