C H A P T E R

3
1
Civil Trial Procedure
ANTE INTERROGATORY
A formal notice to the defendant that a lawsuit has begun and that the defen-
dant must file an answer within the number of days set by state law is a
(A) complaint, (B) declaration, (C) summons, (D) verification.

LEARNING OBJECTIVES LO 4: Categorize the steps needed for a

plaintiff to obtain an attachment
LO 1: Explain the basics of how a lawsuit
LO 5: Contrast a trustee process/garnishment
begins, including if and when a
with an attachment
plaintiff has a case to file
LO 6: Explain and apply the common burden
LO 2: Define a pleading and explain what a
of proof in a civil case
complaint consists of
LO 7: Define the writ of execution
LO 3: Explain service of process and what
a defendant needs to do to avoid a LO 8: Define a summary proceedings
default judgment

KEY TERMS defendant

ad damnum deponent
affiant docket
affidavit docket number
allege Doe defendants
allegation encumbrance
answer ex parte
attachment garnishee
aver garnishment
averments gravamen
cause of action justiciable
civil action legal issues
class action lien
complaint lis pendens
constructive service litigant
counterclaim litigation
declaration personal service
default judgment petition
20
 Chapter 3 • Civil Trial Procedure 21

plaintiff summary proceeding

pleadings summons
preponderance of evidence trial docket
process trial list
process server trustee
pro se
ripeness doctrine
rules of civil procedure
trustee process
verification
writ
1
service of process writ of attachment
standing to sue writ of execution
statute of limitations writ of garnishment
substituted service

WEBSITES FOR PRONUNCIATION HELP

[Link]
[Link]

A
civil action—that is, a lawsuit other than a criminal one—comes about when two or
more people become involved in a dispute they are unable to settle by themselves. One
of them seeks to have a third party, the court, resolve the dispute for them. To do this,
a court action known as litigation (a suit at law) must be brought. The parties to a lawsuit are
called litigants. The person who brings the suit is called the plaintiff. The person against whom
the suit is brought is called the defendant. A class action is a lawsuit brought, with the court’s
approval, by one or more persons on behalf of a very large group of people who have the same
interest in the matter.
Under the ripeness doctrine, a court will not hear a case unless there is an actual, pres-
ent controversy for the court to decide. Judges will not decide cases that are hypothetical or
speculative. To be brought to court, potential cases must be justiciable—appropriate for court
assessment.
The federal rules of civil procedure govern civil cases brought in federal courts. These
rules can be found on the Internet ([Link] For example, Rule
23 federal rule of civil procedure governs class actions brought in federal court. Individual states
also have adopted rules of civil procedure that apply to cases brought in their state courts.

BEGINNING A CIVIL ACTION

To begin a civil lawsuit, the plaintiff usually makes an appointment with an attorney and tells the
attorney the facts of the dispute as he or she understands them. The attorney, after listening to
the client’s version of the facts, determines the legal issues (questions of law) that are involved
in the case. The attorney then tells the client about the law as it applies to the legal issues and
gives the client an opinion as to how successful a lawsuit might be. The client, with the advice
of the attorney, then decides whether or not to bring the lawsuit. A plaintiff may file a lawsuit
without an attorney’s help, by representing himself or herself, which is known as appearing
pro se. While it may inadvisable, plaintiffs and defendants have the right to be pro se in any legal
proceeding.
An important consideration for the attorney is whether the client has standing to sue.
Standing to sue means that a party has a tangible, legally protected interest at stake in a lawsuit.
For example, you could not bring suit against someone who breached your friend’s contract,
because you were not a party to that contract. You would not have “standing.”
Another critical consideration is whether the applicable statute of limitations bars the
lawsuit from being filed. Statutes of limitation set a time limit for how long plaintiffs can wait,
 22 Part 1 • Terms Used in Practice and Procedure

after the plaintiff is aware of the action (or reasonably should be aware), to file a lawsuit. Time
limits vary according to the kind of suit being filed, and are set by statutes. For example, in many
jurisdictions the statute of limitations for personal injury lawsuits is two years and often the stat-
ute of limitations for lawsuits based on written contracts is six years.
If the client decides to bring suit, the attorney usually writes a letter to the defendant, say-
ing that he or she represents the plaintiff and has been authorized to bring suit against the defen-

1 dant. In the letter, the attorney often makes an attempt to settle the case out of court and gives the
defendant a few days to answer the letter. If no settlement can be reached, the plaintiff’s attorney
will begin the lawsuit.

SELECTING THE COURT

The attorney’s first task in bringing suit is to select the court in which to bring the action. In
choosing a court, the attorney must determine which court has jurisdiction over both the person
who is being sued and the subject matter of the case, as discussed in Chapter 1.

PLEADINGS
Civil suits are begun and defended at the outset by the use of papers known as pleadings.
Pleadings are the written statements of claims and defenses used by the parties in the lawsuit.
Pleadings serve the purpose of giving notice to all parties of the claims and defenses in the suit;
in addition, pleadings narrow the issues for trial so that both parties and the court know the legal
issues that must be decided.
To begin a civil suit, the plaintiff’s attorney files a complaint with the clerk of the court,
which is the plaintiff’s first pleading. A complaint (called a declaration at common law) is
a formal document containing a short and plain statement of the claim, indicating that the
plaintiff is entitled to relief and containing a demand for the relief sought. The complaint sets
forth the plaintiff’s cause of action, which is the ground on which the suit is maintained. The
essential basis, or gist, of the complaint is known as the gravamen of the lawsuit. The com-
plaint contains allegations (also called averments), which are claims that the party making
the complaint expects to prove. To allege, or to aver, means to make an allegation; to assert
positively. The clause in the complaint stating the damages claimed by the plaintiff is called
the ad damnum. In some states, a complaint must be accompanied by a verification signed by
the plaintiff. A verification is a written statement made by the plaintiff, under oath, confirm-
ing the correctness, truth, or authenticity of a pleading. In some states, especially in courts of
equity (see Chapter 7), civil suits are begun by the filing of a petition—a written application
for a court order.
The lawsuit officially begins when the complaint or petition is filed with the court. The
plaintiff’s attorney either mails (registered or certified) or hand-delivers the complaint to the
court, with the proper filing fee. The clerk of court keeps a record, called a docket, of cases that
are filed and assigns a docket number to each case. The term trial docket or trial list refers to
the calendar of cases that are ready for trial.
Due to the advance of technology, pleadings and other papers may be filed or served elec-
tronically, according to Rule 5 of the Federal Rules of Civil Procedure, provided that the local
federal courts allow for electronic filing and that other parties consent to electronic service.
States have similar allowances. Indiana Trial Rule 5(F) allows for the electronic filing of plead-
ings. To protect the privacy of litigants, Rule 5.2 of the Federal Rules of Civil Procedure requires
that certain personal information (Social Security number or date of birth) be presented in a way
that does not entirely disclose the information. For example, the last four numbers of a person’s
Social Security number only may be listed.
Once the complaint is filed with the court, the defendant is notified of the suit by a method
known as process. Process is defined as the means of compelling the defendant in an action to
appear in court.
 Chapter 3 • Civil Trial Procedure 23

Word Wise
Truth

The root “ver-” used in the term “verification” is from the Latin word for “truth,” veritas. Other
words with the same root are:
Word
Verdict
Verify
Meaning
Decision of the jury (see Chapter 20)
To prove to be true
1
Even that most familiar word, “very,” which means “truly” or “really,” comes from the
root “ver-.”

SERVICE OF PROCESS
A summons is used to notify the defendant of the lawsuit. A summons is a formal notice
to the defendant that a lawsuit has begun and that the defendant either must file an answer
within the number of days set by state law or lose the case by default. Service of process is
the delivering of summonses or other legal documents to the people who are required to re-
ceive them. A summons is obtained from the court, filled out, and given, along with a copy of
the complaint, to a process server (a person who carries out service of process). The process
server delivers copies of the summons and the complaint to the defendant and then fills in
the back of the summons indicating when and how service was made. The summons is then
returned to the court.
The process server may serve process by delivering a copy of the summons and com-
plaint to the defendant personally, which is known as personal service. Service that is not
personal service is called constructive service when the summons and complaint are left at
the defendant’s last and usual place of abode and substituted service when they are delivered
to the defendant’s agent, mailed, or published in a newspaper. If the defendant is a corpora-
tion, process may be served on an officer of the corporation, on a registered agent of the cor-
poration, or on the person in charge of the corporation’s principal place of business. When the
defendant’s whereabouts are unknown, process may be served by publication in a newspaper.
In some states, service may be made by mail. As stated earlier, the Federal Rules of Civil
Procedure authorize electronic service, provided that there is written consent by the party to
be served.
When names of defendants are unknown, summonses and complaints refer to people as
Doe defendants, such as First Doe, Second Doe, John Doe, and Jane Doe.

TERMS IN ACTION
In the 2008 movie “Pineapple Express,” Seth Rogan’s character plays a process server who
uses creative methods to get divorce papers or civil complaints served on defendants, in-
cluding impersonating a doctor and serving a summons on a surgeon during an operation.
That may not be too far from reality for those who sometimes have to use deception to find
defendants, some of whom don’t want to be found. Process servers might have to dodge
menacing dogs while trying to find hiding homeowners who don’t want to receive service of
process on foreclosure actions, and they risk personal injury if they are attacked by angered
recipients of subpoenas or legal documents. California and Washington State allow process
servers to temporarily trespass in order to do their job. Whereas substitute service is al-
lowed in all jurisdictions, nothing beats being able to say, “You’ve been served.” Even Mark
(Continued)
 24 Part 1 • Terms Used in Practice and Procedure

Zuckerberg, the billionaire who created Facebook, heard those words when a process server
got past security at a fancy ski resort in Idaho, where Zuckerberg was having lunch in 2010.
One process server in Seattle was so unpopular for his menacing tactics that the Seattle Times
wrote an article about him in 2010, recounting how he once pitched a tent outside a target’s
house and camped there until the guy came home. Service of process can even be deadly. In
2008, a process server in Colorado was murdered after personally serving an irate husband at

1 the divorcing couple’s home.

Source: [Link]; [Link]; [Link]

The Answer
Upon receiving the summons, the defendant has a time limit to file an answer, which is the de-
fendant’s pleading. For example, in the federal system, a defendant generally has 21 days after
being served the summons to file an answer; in New Jersey state court, an answer must be filed
within 35 days of service of process. An answer is a written response to the plaintiff’s complaint,
filed with the court where the complaint was filed. An answer denies or admits the specific al-
legations in the complaint, or it may claim a lack of knowledge about the truthfulness of the
complaint’s allegations. A defendant’s answer may also include a counterclaim—a suit filed
against the plaintiff—which would then require the plaintiff’s written response.

Default Judgment
When a defendant fails to file an answer or other pleading in response to a summons and com-
plaint, he or she may lose the case by default. A default judgment is a court decision entered
against a party who has failed to plead or defend a lawsuit.

Differences Between Criminal and Civil Actions

Criminal Action Civil Action

1. Who brings the action? The government The injured party
2. What is the plaintiff’s Prove guilt beyond a reasonable Prove liability by a
burden of proof? doubt preponderance of evidence
3. What can be the result Prison, fine, or both; death; Pay money (damages) to the
for a losing defendant? restitution winning party; do or refrain
from doing a particular act

ATTACHMENTS
At times, plaintiffs need the assurance that if they obtain a judgment against the defendant (that
is, win the lawsuit), money will be available from the defendant to pay the amount of the judg-
ment. This assurance is accomplished by attaching the defendant’s property at the beginning
of the action. An attachment is the act of taking a person’s property and bringing it into the
custody of the law so it may be applied toward the defendant’s debt if the plaintiff wins the suit.
The method of obtaining an attachment varies somewhat from state to state. Under a typi-
cal state law, the plaintiff’s attorney files a motion for attachment with the court at the same time
the complaint is filed. The plaintiff’s attorney must also file an affidavit signed by the plaintiff,
stating facts that would warrant a judgment for the plaintiff. An affidavit is a written statement
sworn to under oath, before a notary public, as being true to the affiant’s own knowledge, in-
formation, and belief. An affiant (also called a deponent) is a person who signs an affidavit.
The motion, affidavit, summons, and complaint, together with a notice of hearing, are sent to
the process server, who serves them on the defendant. A hearing is then held by the court to
 Chapter 3 • Civil Trial Procedure 25

determine whether or not to allow the attachment. The court may allow the attachment if it finds
that a reasonable likelihood exists that the plaintiff will recover a judgment against the defendant
for the amount of the attachment over and above any insurance coverage that the defendant has.

Ex Parte Hearing
Sometimes, the plaintiff’s attorney wishes to attach the defendant’s property, but does not want
to notify the defendant in advance that an attachment is going to occur. In such cases, the plain-
tiff’s attorney attends an ex parte session of the court. Ex parte means that the hearing is at-
tended by one party only. The plaintiff’s attorney asks the court to allow the attachment without
1
notifying the defendant beforehand. The court may allow the attachment without notifying the
defendant if it finds (1) that the defendant is not within its jurisdiction (but the defendant’s prop-
erty is, thereby giving it quasi in rem jurisdiction), or (2) that a danger exists that the defendant
will conceal the property, sell it, or remove it from the state, or (3) that a danger exists that the
defendant will damage or destroy the property.

Writ of Attachment
A writ is a written order of a court, returnable to the same, commanding the performance or
nonperformance of an act. If the court allows an attachment, the judge signs a paper called a writ
of attachment. This written order is to the sheriff, commanding the sheriff to attach the real or
personal property of the defendant, up to an amount approved by the court.
When real property is attached, the writ of attachment or a notice of lis pendens (pending
suit) is recorded at the registry of deeds in the county where the property is located. This proce-
dure has the effect of putting a lien on the property until the lawsuit is completed. A lien (also
called an encumbrance) is a claim that one person or entity has against the property of another.
The claim attaches to the property until the lawsuit is completed. If the plaintiff obtains a judg-
ment against the defendant, an officer of the court, such as a sheriff, can sell the property under
the court’s direction and obtain the money to satisfy the judgment.
If personal property is attached, the court officer may take possession of it, or in some circum-
stances place a keeper over it, or sell it immediately as in the case of perishable property. With varia-
tions from state to state, certain items are exempt from attachment, such as necessary wearing apparel,
furniture and books up to a particular value, tools necessary to carry on a trade, and materials and
stock up to a specified value. Other technical restrictions on the attachment of personal property exist.

Trustee Process and Garnishment

Sometimes, it is necessary to attach property of the defendant that is being held by another per-
son. This is most commonly done to attach money that the defendant has in a bank account or
wages or other money that has been earned by the defendant, but not yet paid.
The procedure for attaching the defendant’s property that is in the hands of a third person
is called trustee process in some states and garnishment in others. To begin trustee process,
the plaintiff’s attorney obtains a trustee process summons, or a writ of garnishment from the
court, fills it out, and files it with the court, together with the complaint, a motion for approval
of attachment on trustee process, and a supporting affidavit. The defendant is notified (unless the
attachment is on an ex parte basis), and a hearing is held by the court to determine whether the
trustee process attachment should be allowed. If it is allowed, the summons is sent to the process
server, who serves it on the trustee or garnishee (the one holding the defendant’s property). The
summons orders the trustee to file, within a prescribed number of days after service, a disclosure
under oath of the goods, effects, or credits, if any, of the defendant that are in the possession of
the trustee at the time of service. In some states, trustee process cannot be used in actions for
malicious prosecution, slander, libel, assault and battery, and specific recovery of goods. Certain
other actions are also exempt from trustee process. With some exceptions, the plaintiff must file
a bond with the court before trustee process can be used. The bond is for the purpose of paying
the defendant’s court costs and damages in the event that the attachment was wrongfully brought
by the plaintiff.
 26 Part 1 • Terms Used in Practice and Procedure

TERMS IN ACTION
Although O.J. Simpson is scheduled for a 2017–2018 release from a Nevada prison for various
convictions stemming from a 2008 Las Vegas robbery, he succeeded in winning his first criminal
trial in 1994, known as “the trial of the century.” Charged with the double murder of his ex-wife

1 Nicole Brown Simpson and her friend Ron Goldman, Simpson was found not guilty after a nine-
month-long nationally televised trial. But in 1997, Simpson was found liable in the civil, wrong-
ful-death case, filed after the criminal case, and the jury awarded the Brown and Goldman families
$33.5 million. After failing to pay the damages, the plaintiffs began the process of attachment.
While Simpson’s NFL pension was deemed to be exempt from garnishment, eventually much
of his nonexempt property was sold at auction to help pay his judgment. Simpson’s most famous
personal property, his 1968 Heisman trophy, sold for $230,000. A grand piano at Simpson’s home
wasn’t sold at auction, however, because a judge agreed with Simpson’s lawyers that it was a gift
made by Simpson and Nicole in 1984 to Simpson’s mother, but was kept at his Brentwood man-
sion. In 1999, the State of California filed a tax lien against Simpson for well over $1,000,000.

Source: [Link]; [Link]; [Link]; [Link]; [Link]

BURDEN OF PROOF
Recall that in criminal cases, the prosecution must prove beyond a reasonable doubt that the defen-
dant committed the crime. In civil cases, the burden of proof is different. To win a civil case, the
plaintiff must prove the case by a preponderance of evidence—evidence of the greatest weight.
This degree of proof requires the judge or jury to believe that the evidence more likely than not
favors the plaintiff. Preponderance of the evidence is not a quantitative standard. For example, one
credible witness for the plaintiff may be sufficient for the preponderance standard, even over mul-
tiple, inauthentic witnesses or witnesses with poor memories testifying for the defendant.

ENFORCING THE JUDGMENT

If the losing party is ordered to pay money to the winning party and does not do so, the winning
party must ask the court for a writ of execution. This process is used to enforce a judgment for
the payment of money. The writ orders the sheriff to enforce the judgment.

SUMMARY PROCEEDINGS
Lengthy and complicated trials are expensive for the parties and the governmental agencies ad-
ministering them. Whenever possible, it is beneficial to hold a trial quickly, in a simple manner.
A summary proceeding is the name given to a short and simple trial, one that occurs without
much or any traditional discovery process (which will be discussed in Chapter 5). Proceedings
held in small-claims courts are examples of summary proceedings.

Reviewing What You Learned

After studying the chapter, write the answers to each of the following questions:
1. How does the plaintiff’s attorney begin a civil suit? 2. What two purposes do pleadings serve?

_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
 Chapter 3 • Civil Trial Procedure 27

3. How is the defendant notified that a lawsuit has been brought 8. How is the defendant notified of the plaintiff’s motion for
against him or her? attachment?

_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________
4. Describe three ways that process may be served on the
_____________________________________
9. The court may allow an attachment if it finds what?
1
defendant.
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________
10. On what three occasions may the court allow an attachment
_____________________________________ without notifying the defendant beforehand?

5. In what ways may process be served if the defendant is a _____________________________________

corporation?
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________
11. What is done with the writ of attachment or notice of lis pen-
_____________________________________ dens when real property is attached?

_____________________________________ _____________________________________
6. How can plaintiffs be assured that money will be available _____________________________________
from defendants if the plaintiffs win a lawsuit?
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________
12. What is a statute of limitations and why is it important?
_____________________________________
_____________________________________
7. Under a typical state law, what two documents must the plain-
tiff’s attorney file with the court to obtain an attachment? _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________
 28 Part 1 • Terms Used in Practice and Procedure

Understanding Legal Concepts

Indicate whether each statement is true or false. Then, change the italicized word or phrase of each false statement to make it true.

ANSWERS ____ 6. An ex parte session of the court is attended by both

parties to the suit.

1 ____

____
1. To begin a lawsuit, the plaintiff’s attorney files a sum-
mons with the clerk of the court.
2. Pleadings help to narrow the issues for trial so that both
parties and the court know what legal issues must be de-
____

____
7. A writ of attachment is a written order to the sheriff to
attach the property of the defendant.
8. When real property is attached, the writ of attachment
is recorded at the city or town hall where the property
cided. is located.
____ 3. A complaint is a formal notice to the defendant that a ____ 9. The procedure for attaching the defendant’s property
lawsuit has begun and that the defendant either must that is in the hands of a third person is called a writ of
file an answer within the number of days set by state encumbrance in some states.
law or lose the case by default. ____ 10. A trustee process summons orders the trustee to file, with-
____ 4. To obtain an attachment, under a typical state law, the in a prescribed number of days, a disclosure under oath of
plaintiff’s attorney files a motion for attachment with the the goods, effects, or credits of the defendant that are in
court at the same time that the complaint is filed. the possession of the trustee.
____ 5. An affiant is also known as a deponent.

Checking Terminology (Part A)

From the list of legal terms that follows, select the one that matches each definition.
ANSWERS
a. ad damnum ____ 1. A record of cases that are filed with the court.
b. affiant ____ 2. A formal document containing a short and plain statement of the claim, indicating
c. affidavit that the plaintiff is entitled to relief and containing a demand for the relief sought.
d. allegation (Select two answers.)
e. allege ____ 3. The act of taking a person’s property and bringing it into the custody of the law so
f. answer that it may be applied toward the defendant’s debt if the plaintiff wins the case.
g. attachment ____ 4. A person who signs an affidavit. (Select two answers.)
h. aver ____ 5. On one side only.
i. cause of action ____ 6. A claim that one person or entity has against the property of another. (Select two an-
j. civil action swers.)
k. class action ____ 7. A procedure for attaching the defendant’s property that is in the hands of a third per-
l. complaint son.
m. constructive service ____ 8. The ground on which a suit is maintained.
n. counterclaim ____ 9. A number assigned to each case by the clerk of court.
o. declaration ____ 10. A written statement sworn to under oath, before a notary public, as being true to the
p. default judgment affiant’s own knowledge, information, and belief.
q. defendant ____ 11. A type of service in which the summons and complaint are left at the defendant’s last
r. deponent and usual place of abode.
s. docket ____ 12. References to defendants whose names are unknown.
t. docket number ____ 13. The defendant’s pleading in written response to the plaintiff’s complaint.
u. Doe defendants ____ 14. A court decision entered against a party who has failed to plead or defend a lawsuit.
v. encumbrance ____ 15. The essential basis or gist of a complaint filed in a lawsuit.
w. ex parte ____ 16. Appropriate for court assessment.
x. garnishment ____ 17. Questions of law to be decided by the court in a lawsuit.
y. gravamen ____ 18. A pending suit.
z. justiciable ____ 19. Claims that the party making it expects to prove.
aa. legal issues ____ 20. To make an allegation; to assert positively. (Select two answers.)
bb. lien ____ 21. defendant’s suit filed against the plaintiff.
cc. lis pendens ____ 22. person against whom a lawsuit is brought.
____ 23. The clause in the complaint stating the damages claimed by the plaintiff
 Chapter 3 • Civil Trial Procedure 29

Checking Terminology (Part B)

From the list of legal terms that follows, select the one that matches each definition.
ANSWERS
a. litigants ____ 1. A written application for a court order.
b.
c.
d.
litigation
personal service
petition
____
____
____
2.
3.
4.
A party that has a tangible, legally protected interest at stake in a lawsuit.
Parties to a lawsuit.
Evidence of the greater weight.
1
e. litigant ____ 5. Regulations that govern the proceedings in civil cases.
f. plaintiff ____ 6. A suit at law.
g. pleadings ____ 7. The principle under which the court will not hear a case unless there is an actual, pre-
h. preponderance of evidence sent controversy for the court to decide.
i. process ____ 8. A short and simple trial.
j. process server ____ 9. A written order to the sheriff, commanding the sheriff to enforce a judgment of the
k. ripeness doctrine court.
l. rules of civil procedure ____ 10. The written statements of claims and defenses used by the parties in the lawsuit.
m. service of process ____ 11. A formal notice to the defendant that a lawsuit has begun and that the defendant ei-
n. standing to sue ther must file an answer within the number of days set by state law or lose the case by
o. statute of limitations default.
p. substituted service ____ 12. The calendar of cases that are ready for trial. (Select two answers.)
q. summary proceeding ____ 13. A written order to the sheriff commanding the sheriff to attach the real or personal
r. summons property of the defendant.
s. trial docket ____ 14. A person who holds legal title to property in trust for another.
t. trial list ____ 15. A written statement made under oath, confirming the correctness, truth, or authentic-
u. trustee ity of a pleading.
v. trustee process ____ 16. The means of compelling the defendant in an action to appear in court.
w. verification ____ 17. The delivering of summonses or other legal documents to the people who are required
x. writ to receive them.
y. writ of attachment ____ 18. Set time limit for how long plaintiffs can wait to file a lawsuit.
z. writ of execution ____ 19. The delivery of a copy of the summons and complaint to the defendant personally.
____ 20. A written order of a court, returnable to the same, commanding the performance or
nonperformance of an act.
____ 21. A type of service in which the summons and complaint are delivered to the defend-
ant’s agent, mailed, or published in a newspaper.
____ 22. A person who carries out service of process.
____ 23. One who brings a lawsuit.
 30 Part 1 • Terms Used in Practice and Procedure

Using Legal Language

Read the following story and fill in the blank lines with legal terms taken from the list of terms at the beginning of this chapter:

After checking to see whether the client’s case wasn’t too old, but also filed a motion for a(n) _____________________________
Attachment

1 was still within _______________________________________

The statute of limitation

___________________, the attorney began the lawsuit by filing

the _____________________________,
Complaint which is the plaintiff’s
at a(n) _____________________________
Ex parte

Lien
session of the court

to place a(n) _____________________________,

called a(n) _____________________________

Encumbrance
which is also

on the defend-

first _____________________________,
Pleading with the clerk of the ant’s real property, without the defendant being notified before-

court, who assigned a(n) _____________________________

A docket number hand. Along with the motion, the attorney was required to file a(n)

to the case to identify it. The attorney then had the _____________________________,
affidavit which was signed under oath

_____________________________
Process server serve copies of the by the client, who was called the _____________________________
Affiant

_____________________________
Summons and complaint on the de- or _____________________________.
Deponent The court allowed

fendant, who was called a(n) _____________________________

Doe defendant the attachment, and the _____________________________
Writ of attachment

because of an unknown name. Because of the fact that was recorded at the Registry of Deeds. Because this did not in-

_____________________________—that
Process is, the means for volve the attachment of property in the hands of a third party,

compelling the defendant to appear in court—occurred by leav- _____________________________,

Trustee process which is also called

ing the papers at the defendant’s last and usual place of abode, _____________________________,
Garnishment was not used. As case prepa-

it was not _____________________________

Personal service; instead, rations for trial were concluding, it was placed on the docket.

it was called _____________________________.

Constructive service The attorney