Understanding a
Civil Case
Or
Mike Prosser presents:
My First Year of Law School in
Under Two Hours
A Program for Support Staff
 What
 What
is “civil” law?
is the difference between
civil law and criminal law?
Civil Law
 Simply
put, a civil proceeding is
that brought to enforce a private
right
 From Latin word civilis meaning
“of or pertaining to a citizen”
Criminal Law
In criminal law, a case is brought to
enforce a societal right
 The purpose is to prevent harm to
society
 Criminal law defines what conduct is
prohibited and defines the penalty for
violation of that law

What About Both?

Nothing prevents a person from being subject
to both criminal prosecution and civil lawsuit
 For example: a person may be charged and
sentenced criminally for Assault and Battery,
and the victim may still bring a civil lawsuit for
medical bills, pain & suffering, etc.
 Famous Example: O.J. Simpson
Types of Civil Actions
 Tort
 Contract
 Statutory
or Rule-Based Actions
Torts
Torts
 Intentional
Torts
 Negligence
Intentional Tort Examples
Battery
 Assault
 False Imprisonment
 Intentional Infliction of Emotional
Distress

Battery
The intentional causing of an actual
bodily contact, which is harmful or
offensive
 Bodily contact may be with either the
plaintiff’s person or with some object
intimately associated with his/her
person

Assault

Intentional causing of one to be put
in apprehension of an imminent
harmful or offensive bodily contact

Simply put, fear of an immediate battery
False Imprisonment
 The
intentional confinement of
someone within specific
boundaries without a privilege
to do so
Intentional Infliction of Emotional
Distress
One who by outrageous conduct
intentionally or recklessly causes severe
emotional distress is liable to the other
for the resulting harm, whether physical
or emotional
 Liability does not extend to mere insult
(so you can’t sue your coworkers for
this!)

Negligence
The failure to do something a
reasonable person would do; or
 The doing of something a reasonable
and prudent person would not do
 Which act or failure to act causes harm
to another

Elements of Negligence
 Duty
 Breach
 Cause
 Harm
What is Comparative Negligence?
It is a defense in negligence actions
whereby the defendant argues that the
plaintiff was at least partly at fault
 If jury/judge finds plaintiff to be negligent
the damages are reduced by the
percentage of the plaintiff’s negligence
 If plaintiff is more than 50% at fault then
judgment is for the defendant

Contracts
Contracts

A contract is a promise or a set of
promises for the breach of which the
law gives a remedy, or the performance
of which the law in some way
recognizes as a duty
General Requirements of a Contract
Mutual assent
 Consideration
 Two or more parties having legal
capacity to contract
 Object of agreement must not be
prohibited by law

Contract Requirements
Mutual assent is usually manifested by
offer and acceptance
 Offer is a communication which invites
the recipient the power to conclude the
contract by accepting
 Acceptance is the assent to the
proposal by the offeree

Contract Requirements
Consideration is that which is
promised by each party to a contract
 Promise
 Doing of an act
 Forbearance of an act
 Must be bargained for (a promise to
make a gift is not generally enforceable)

Contract Requirements

1.
2.
3.
Legal Incapacity arises from:
Infancy (under age of 18, even if minor
misrepresents age the contract may be disaffirmed
at the minor’s election); an exception is in
Massachusetts a minor age 16 may enter into a
contract for motor vehicle insurance (G.L. c. 175, §
133K)
Insanity: person under guardianship or adjudicated
as incompetent
Drunkenness: a contract is generally voidable if
made by person so drunk as to be incapable of
understanding the nature of his/her action
Contract Requirements



1.
2.
3.
Legality
General rule is that illegal contracts
are unenforceable in any way
Examples of Illegal Contracts:
Contract to violate a law
Contract in restraint of marriage
Contract to induce another to breach
a contract or other fiduciary duty
Statutory or
Rule-Based
Civil Actions
Statutory or Rule-Based Civil
Actions


1.
2.
3.
4.
Not traditional actions in the nature of
contract or tort
Examples:
Unemployment Appeals
Firearm Appeals
CMVI Appeals
209A Actions
Civil
Procedure
Civil Procedure
How does a typical civil case move
through the system?
 How does it progress differently from a
typical criminal case?
 Why are some cases brought in the
Superior Court instead of the District
Court?

Civil Case Progression
A
civil case is driven by the
parties, particularly the plaintiff,
much more than a criminal case
Initiation of Civil v. Criminal Case

Criminal case is only  Civil case cannot be
refused by the court
initiated after some
as long as the filing
type of approval by
fee is paid and the
the court (the
complaint is
granting of a
accompanied by the
complaint or an
appropriate
indictment by a
statement of
grand jury)
damages form (civil
cover sheet in
Superior Court)
Progression of Case:
Civil v. Criminal

Criminal case has
regular court
appearances to keep
case moving along. Is
never “unscheduled”
except when case is
over or defendant is in
default



Events in case are
driven by the parties’
actions out of court
Cases may be
unscheduled at times
while still pending
District Court has tried
to eliminate this through
its Standing Order 1-04
regarding civil case
management
Superior Court or District Court?
Amount of Claim:
 Cases may be brought in District Court for
any amount of damages, but the defendant
may have any claim for over $25,000
dismissed and force the plaintiff to bring the
case in the Superior Court
 “Procedural” amount versus “jurisdictional”
amount
 Rule 12(b)(10)
Superior or District Court?
Statutory Requirement:
 Some actions, by law, may only be
brought in the Superior Court, for
example:
– Tort claims against the Commonwealth of
Massachusetts must be brought in
Superior Court pursuant to the
Massachusetts Tort Claims Act (G.L. c.
258)
– Actions brought under Massachusetts Civil
Rights Act
– Actions for negligence in connection with the
distribution, sale, or serving of alcohol to
minors
– Appeals of parking tickets after finding by
municipal parking administrator (No kidding!)
– Medical malpractice cases may be maintained
in District Court, but must be approved by a
tribunal in the Superior Court
Superior or District Court?
Equity Jurisdiction
 Traditionally, only in Superior Court
 Since adoption of one-trial system, the
District Court has equity jurisdiction in
cases where there is also a claim for
money damages
What is Equitable Relief?
Equity powers allow the court to order a
party to do or refrain from doing
something, rather than just an award of
money damages
 Example: Injunctions, TROs

What Happens After a Civil Case
is Filed?
Discovery process
 Adding and dropping of parties and
filing of additional claims
 Summary judgment
 Settlement
 Trial

What is Civil Discovery?
Purpose is to obtain and preserve
evidence
 Narrows issues at trial
 Reduces “surprise” at trial
 Party may obtain discovery even though
it may not be admissible at trial (if it
reasonably may lead to discovery of
admissible evidence)

Discovery Procedures
 Depositions
 Requests
for Admissions
 Interrogatories
 Production of Documents
Deposition

Out of court examination of a witness under
oath, in which the questions and answers are
recorded (stenographer/notary public)
 Any party has absolute right to take
deposition of any witness without any
requirement of a showing of good cause
 Often used at trial to impeach testimony of
witness
 Sometimes admissible if witness later dies or
becomes unavailable
Requests for Admissions

A party may serve upon another party written
requests for admission of truth on any
discoverable matter
 Must be answered with an admission, denial,
a statement as to why the party cannot
truthfully admit or deny, or an objection (with
reasons)
 Responses are under pains of perjury
 If not responded to within 30 days then
deemed admitted
Interrogatories
Set of questions (not more than 30)
served upon a party that must be
answered under oath in writing
 Must be answered within 45 days
 Failure to answer can result in default
(and judgment) against defendant or
dismissal against plaintiff

Production of Documents
To a party, request is made in writing for
permission to inspect and copy
documents in party’s possession
 To get documents from a non-party
(witness) they must be served with a
subpoena duces tecum to bring books,
documents, etc. to a deposition

Adding Parties and Claims
 Counterclaims
 Cross-claims
 Adding
additional parties
(Impleader)
Counterclaim

A claim for relief asserted against the plaintiff
by the defendant
 Raised in the defendant’s answer
 Compulsory Counterclaim is one that must
be asserted immediately or barred. It arises
out of same transaction or occurrence as
subject matter of plaintiff’s claim
 Permissive Counterclaim may be asserted,
but is not barred if it isn’t. It may be the
subject of a later lawsuit.
Cross Claims
Claims made between parties in the
lawsuit (defendants)
 Made for purposes of contribution or
indemnification
 “I don’t owe you anything, but he does!”
 “If I’m paying, then he’s paying too,
because it’s also his fault!”

Adding Parties
Parties other than those originally in
action may be added as parties to
counterclaim or crossclaim (Rule 13(h))
 Added by a third-party complaint
 Also usually for purpose of
indemnification or contribution

Disposition without Trial
Motion made in lieu of answer (12(b)
motion)
 Motion for judgment on pleadings
 Summary judgment
 Voluntary dismissal
 Involuntary dismissal (failure to
prosecute)
 Settlement

12(b) Motions to dismiss
No subject matter jurisdiction
 Lack of personal jurisdiction
 Improper venue
 Insufficiency of process
 Insufficiency of service of process
 Failure to state a claim on which relief
can be granted

12(b) Motions to dismiss
Failure to join a party under Rule 19
 Misnomer of a party
 Pendency of a prior action in a court of
the Commonwealth
 Improper amount of damages
(“Procedural Amount”)

12(b) Motions to dismiss
These defenses are often listed as
“defenses” in the defendant’s answer,
rather than being separately raised in
motion to dismiss
 12(b) motion is a “responsive pleading”
and may be made in lieu of an answer.
If denied, defendant must then file
answer

Waived if Not Raised







Lack of personal jurisdiction
Improper venue
Insufficiency of process
Insufficiency of service of process
Misnomer of a party
Pendency of a prior action in a court of the
Commonwealth
Improper amount of damages (“Procedural
Amount”)
Motion for Judgment on Pleadings

Rule 12(c)
 Any party may challenge legal sufficiency of
the adversarial party’s pleading
 Only pleadings (complaint, answer)
considered
 If materials outside of pleadings considered,
is treated as summary judgment motion
Motion for Judgment on Pleadings

Usually seen in District Court in the context
of a collection type action (credit card debt)
 Defendant’s answer is something like, “I
know I owe the money, but I can’t afford to
pay right now.”
 Court will allow motion which establishes
liability, ability to pay is another issue
(considered in supplementary process action)
Summary Judgment
In deciding this motion, the judge must
“look behind” the pleadings to determine
if a genuine issue of fact exists
 If no genuine issue of fact exists, the
movant (plaintiff or defendant) is entitled
to judgment
 Motion must be supported by affidavits
made upon personal knowledge

Summary Judgment
Partial summary judgment may
sometimes be granted, simplifying
issues for trial
 May often be granted on liability, leaving
only issue of damages for trial

Voluntary Dismissal

Plaintiff may dismiss a defendant by filing a
notice of dismissal before the defendant files
an answer or motion for summary judgment
 If answer has been filed the stipulation of
dismissal must be signed by all parties who
have appeared in action (co-defendants)
 Or by order of court
Involuntary Dismissal

Example: 12(b) motion, 12(c) motion
 May be ordered if plaintiff fails to prosecute
by failing to act on default, respond to
interrogatories, appear for Case Management
or Pre-Trial Conference
 If plaintiff is “directed out” at close of case in a
civil bench trial, it is considered a motion for
involuntary dismissal not a directed verdict
motion (only in jury trials)
Settlement

An out-of-court resolution of the case
reported to the court before trial
 Report of settlement may result in the filing of
an agreement for judgment or a stipulation of
dismissal
 Upon reaching settlement, parties will often
ask for a 30-day order to file the agreement
or stipulation (could be 60, 90, etc.)
Trial
May be by judge only (bench trial)
 May be by jury
 Not all issues may be submitted to jury

– Example: 93A claim has no right to jury
trial, although judge may submit to jury in
non-binding question
Bench Trial
Judge makes all findings of fact and
rulings of law
 Judge must make written findings if
any party submits proposed findings
of fact and rulings of law (does not
apply to contempt trials)

Jury Trial
Judge rules on law; jury finds facts
 Jury may be given “special verdict”
where they answer specific written
questions
 Jury verdicts do NOT have to be
unanimous (District Court 5 of 6 jurors)

Jury Trials
Defendant may make motion for
directed verdict at close of plaintiff’s
case and at close of evidence
 Plaintiff may make motion for directed
verdict at close of evidence

Post Jury Trial Motions
Judgment N.O.V. is motion for entry of
judgment in moving party’s favor
notwithstanding the jury’s verdict
 Must be made within 10 days
 Court determines if reasonable men
could have differed as to the verdict,
considering the evidence in light most
favorable to non-moving party

Post Jury Trial Motions
Motion for new trial
 Must be made within 10 days

– Because damages are inadequate or
excessive
– For newly discovered evidence
– For misconduct of jury
– Errors at law committed at trial: this is
asking the trial judge to acknowledge an
error, different from appeal
Appeal

District Court
– Appeal to Appellate Division
– Appeal to Appeals Court
– Appeal to Supreme Judicial Court

Superior Court
– Appeal to Appeals Court
– Appeal to Supreme Judicial Court
Done Means Done

Res Judicata
– Claim preclusion
– Same claim cannot be retried again
– Similar to double jeopardy in criminal cases

Collateral Estoppel
– Issue preclusion
– If an issue has been litigated in an action the
same parties may not re-litigate the same specific
issue in a subsequent action even if the cause of
action is different
And now
you’re done!
Contact Info
Mike Prosser, Asst. Clerk-Magistrate
 Worcester District Court
 508-831-2016 (direct extension)
michael.prosser@jud.state.ma.us
