Civil Lawsuits in Arizona – “A Lawsuit is Civilized Warfare”

In Arizona, about 100,000 civil actions are filed each year. A civil action generally is filed in the superior court. If the amount in controversy is $10,000 or less, it may be filed in a justice court. This article looks at the struc­ture of a civil action brought in the Arizona Superior Court.

What is a Civil Action?

A civil action, simply defined, is a lawsuit brought to enforce, restore or protect private rights. Most commonly, a civil action is brought for monetary relief. Most civil actions involve claims arising out of breach of contract, motor vehicle accidents, malpractice, or other negligence. The terms “civil action” and “lawsuit” are interchangeable, as both refer to an action or proceeding in a civil court.

Starting a Lawsuit

The filing of a complaint with the clerk of the court starts a lawsuit. A complaint is a formal written statement filed by the party who starts the lawsuit (the plaintiff), which asserts that party’s claims in the action. When a complaint is filed, the case is assigned a number by the clerk. The clerk issues a summons, which is an official court document that requires the other party (the defendant) to defend against the plaintiff’s claims as stated in the complaint. A summons is served upon the defen­dant with a copy of the complaint.

Once served, a defendant must file a written response to the allegations made by the plaintiff in the complaint. An answer may be accompanied by a counterclaim, which asserts claims by the defendant against the plaintiff. The time for responding to the plaintiff’s complaint depends upon a number of factors, including whether service was made within or outside the state of Arizona.

A defendant personally served with a summons and com­plaint within the state of Arizona has 20 days after service to file a response with the court. If the defendant fails to respond within the required time, a default will be entered against the defendant and the plaintiff may be granted a judgment for the relief requested in the complaint. This is known as a “default judgment.”

Every civil action is assigned to a judge at the beginning of the case. Each side is entitled to one change of judge as a matter of right. The right is exercised by the filing of a notice of change of judge.

Pretrial Procedures

Disclosure of Information

Each party must furnish to the other a written disclosure of information within 40 days after the defendant’s answer is filed. This disclosure statement, as it is called, must contain specific information concerning the claims and defenses, the identities of witnesses, a description of all exhibits, and other pertinent information prescribed by Arizona Court Rule 26.1. The failure to disclose the information required by this court rule will result in penalties against the non-complying party, which may include exclusion of undisclosed evidence at the time of trial.

Alternative Dispute Resolution

Upon motion of any party, or upon its own initiative after consultation with the parties, the court may direct the parties to submit the dispute to an alternative dispute resolution program created or authorized by the court. In any event, no later than 90 days following the first appearance of a defendant, the parties must confer, either in person or by telephone, about the possibilities for a prompt settlement of the case, or whether they might benefit from participating in some form of alternative dispute resolution. Within 30 days after their conference, the parties are required to inform the court regarding their willingness to participate in alternative dispute resolution. If they agree to use alternative dispute resolution methods, the court will enter appropriate orders.

Discovery

Any party in a civil action may use discovery procedures to uncover evidence and avoid the element of surprise at the time of trial. The primary purpose of discovery is to uncover evidence. Discovery may also be used, however, to preserve evidence, to narrow issues, to secure admissions, and to confine testimony. The parties conduct discovery to prepare their cases for trial.

Under the rules of civil procedure, the various discovery procedures available are: oral depositions, written questions and interrogatories, requests to produce documents and things, physical and mental examinations, and requests for admission. The use of one discovery procedure does not preclude the use of others, and there is no required sequence for their use.

Illustration: Prior to trial, one party wants to take the depo­sition of the other party. The party desiring the deposition sends the other party a notice of deposition, specifying the place, date and time of the deposition. The party taking the deposition will be allowed to ask the other party a wide range of questions regarding the claims and defenses in the lawsuit. The testimony is given under oath and in the presence of a court reporter. The transcript of the deposition may be used at the time of trial to help prove or disprove any claim or defense in the case. If the person giving the deposition changes his or her testimony at the trial, the deposition can be used to show the changed testimony.

Compulsory Arbitration

Local Limits

The superior court in each county is authorized by law to require arbitration of all matters where the amount in contro­versy does not exceed $65,000. In most counties, however, the limits set by local rule for required arbitration are considerably less than $65,000.

In every case, the plaintiff must file a certificate with the complaint indicating whether the case is subject to compul­sory arbitration under the local rule of the court in which the case is filed. If a defendant disagrees with the plaintiff’s certifi­cate, the defendant must file a controverting certificate with the answer.

Appointment of Arbitrator

Cases that are subject to arbitration are placed on the arbi­tration calendar. The court administrator then selects an attorney from a list of attorneys to serve as the arbitrator in the case. Either side may file one notice of strike within 10 days after the arbitrator is appointed, in which event another attorney will be selected from the court administrator’s list to serve as the arbitrator.

Arbitration Hearing

The court-appointed arbitrator is empowered to swear wit­nesses and conduct the hearing. An arbitrator generally sched­ules the arbitration hearing (which most often is held at the arbitrator’s office) shortly after he or she is appointed as the arbitrator in a case. The rules of evidence are somewhat relaxed in the arbitration proceedings, and certain evidence is admissible at the hearing without the usual requirements. The arbitrator files an arbitration award with the court after the hearing has concluded. The arbitration award determines which party, if any, is entitled to money from the other.

Appeal From Arbitration

Any party who appears and participates in the arbitration hearing may contest the arbitration award. To do so, the party contesting the award must file an appeal with the clerk of the court within 20 days after the arbitration award is filed, and request that the case be set for trial in the superior court. At the time of filing the notice of appeal, the party appealing from the award must deposit with the clerk of the court a sum equal to one hearing day’s compensation of the arbitrator, but not exceeding 10% of the amount in controversy. The trial is a new determination of all issues in the case. Either party may request a jury trial.

The deposit on appeal will be refunded to the party appealing from the arbitration award if he obtains a judgment on the trial that is at least 23% more favorable than the award. If the judgment on the trial is not more favorable by at least 23% than the monetary relief granted by the arbitration award, the court will order the deposit to be used to pay the costs and fees related to the appeal. If the deposit is insufficient to pay all the costs and fees on appeal, the court will, absent a showing of substantial economic hardship, require the party appealing from the award to pay the difference.

Illustration: A plaintiff who appeals from a $10,000 award must obtain a judgment of at least $12,300 to avoid paying the defendant’s attorney fees and costs on appeal. Conversely, to avoid paying the plaintiff’s attorney fees and costs on appeal, a defendant who appeals from a $10,000 award cannot have a judgment entered against him for more than $7,700.

If no appeal has been filed by the expiration of the time for appeal, any party may file to have a judgment entered on the award. If no application for entry of judgment is filed within 120 days from the date of the arbitrator’s decision and no appeal is pending, the case will be dismissed.

Most cases that are subject to compulsory arbitration are resolved in the arbitration pro­ceedings and do not go to trial. Arbitration is a preferred method of resolving disputes.

Setting a Case for Trial

A case that is not subject to arbitration gets set for trial by the filing of a Motion to Set and Certificate of Readiness. This is a court document that requests the assigned judge to set the case for trial and certifies that all discovery has been com­pleted or will be completed in advance of trial. If one party disagrees with the other party’s Motion to Set and Certificate of Readiness, the party in disagreement may file a controvert­ing certificate with the court. The trial judge will then decide whether the case is ready to be set for trial.

When a case is ready to be set for trial, the trial judge may set a pretrial conference before setting a trial date, or may schedule both at the same time. Any party may request a trial by jury. If a jury trial is not requested, the trial will be by the judge.

If neither party files a Motion to Set and Certificate of Readiness within nine months from the commencement of the action, the case will be placed on the inactive calendar. A case that remains on the inactive calendar for two months may be dismissed for lack of prosecution. These fast-track time periods are shorter than the time periods in most other courts outside Arizona, and result in cases being decided here more quickly than in most other jurisdictions.

Motions

At any time during the pendency of a civil action, a party may file a motion, or a formal written request asking the court for some form of relief. Motions made during a trial may be oral. If a claim is not well grounded in fact or law, the opposing party may file a motion to dismiss before trial. If a motion to dismiss is granted, the claim will be dismissed without a trial.

Illustration: The defendant files a motion to dismiss the plaintiff’s personal injury claim because it was filed more than two years after the accident happened. The statute of limita­tions is two years. The court grants the defendant’s motion, and the plaintiff’s case is dismissed without a trial.

The Trial

In Arizona, civil trial juries consist of eight members (most readers probably would have guessed 12). The number of jurors is set by state law, but can be changed by agreement of the parties and the judge. In some cases, the parties stipulate to a lesser or greater number of jurors.

Regardless of the number of jurors, each juror must be a citizen of the U.S., be a resident of the county in which he or she is summoned to serve, be free of a felony conviction, and not be mentally incompetent or insane.

After a jury has been impaneled in a civil case, the attor­neys may make opening statements. Following opening state­ments, the case proceeds as follows:

the plaintiff’s evidence is introduced

the defendant’s evidence is introduced

the plaintiff may offer rebuttal evidence

the defendant may offer rebuttal evidence

The attorneys make closing arguments after all the evidence has been presented. The court then instructs the jury on the law and the case is submitted to the jury for delibera­tions. Unless the parties otherwise agree, at least six of the eight jurors must support the jury’s decision. The jury’s decision is called a verdict. The verdict does not have to be unanimous, so long as the required number of jurors have voted in favor of the verdict. The court will enter a judgment in the case based on the verdict, unless it is contrary to law. In cases tried by the judge, the judge acts as a one-person jury.

Award of Fees and Costs

The successful party in a civil action is awarded costs, but not necessarily attorney fees. In order for the winning party to recover attorney fees, there must be a legal basis. In Arizona, one such basis is a statute that allows attorney fees to be awarded to the successful party in any action arising out of a contract. Another basis, previously mentioned, is the arbitra­tion rule that requires a party who unsuccessfully appeals from an arbitration award to pay the other party’s costs and attorney fees. The amount of attorney fees awarded to the successful party is determined by the judge, and not the jury.

Appeals

After the trial, the losing party may file post-trial motions requesting that the judgment be vacated or that the jury’s verdict not be followed, and may appeal from the judgment to the courts of appeal. However, the decision of the trial judge will be affirmed unless material mistakes were made during the trial. In the vast majority of appeals, the trial court’s judgment is upheld. The losing party on appeal may be ordered by the court of appeals to pay the winning party’s attorney fees on appeal in appropriate cases.