The Fundamentals of Litigation

The Court System.

In New Jersey, like in many states, there are basically four levels of courts: (i) the Municipal Court hears minor violation of law such as traffic summonses, domestic violence cases, DWI’s and minor crimes, (ii) the Superior Court hears disputes between parties and can award monetary damages and other relief, (iii) the Appellate Division hears appeals from cases that have already been tried and judged by the Superior Court, and (iv) the Supreme Court is the highest court in New Jersey and it hears cases that are usually appealed from the Appellate Division. There are also specialized courts of limited jurisdiction such as the Tax Court which handles property tax disputes, Surrogate Court which handles matters of wills and probate, and the Administrative Law Court which handles regulatory and administrative law cases. Most party versus party litigation matters will be initially brought before the Superior Court.

Types of Cases.

The Superior Court has vast jurisdiction to hear different types of cases, such as matters involving (i) accidents and personal injury, (ii) professional malpractice, (iii) breach of contract, (iv) business disputes, and (v) just about anything that requires a decision regarding a case or controversy that is not specifically reserved for one of the specialized courts.


All cases start with a complaint. The complaint is a document that is filed with the Court which outlines the reason why the court should intervene and decide a matter in favor of the plaintiff. The complaint must set forth all the possible legal claims against a party. If it does not, the right to later introduce the claim may be lost. Once the complaint is filed, it must be served upon the opposing party.


Once a complaint is filed and served, the defendant will have three options: (i) ignore the complaint, (ii) answer the complaint, or (iii) answer and counterclaim against the plaintiff. It is never a good idea to ignore the complaint as there is always a risk of having a default judgment entered. An answer to the complaint must be filed within 35 days from the receipt of service of a complaint. The answer should set forth, point by point, an admission or denial of the facts in the complaint and all the possible defenses to the complaint. If it does not, the right to later introduce a defense may be lost. Additionally, similar to the complaint, a defendant may also file a counterclaim against the plaintiff. The plaintiff will then be in the position of having to file an answer to the counter claim.


Once the complaint and answer are filed, there will be a period of discovery in the case. The discovery period may take in excess of 300 days depending on the type and complexity of the case. Discovery involves the exchange of all relevant information, evidence and documents, between the parties that support their respective positions. Discovery includes (i) interrogatories, (ii) document requests, (iii) requests for admissions, and (iv) depositions. Interrogatories are written questions concern the facts, claims or defenses that must be answered. Document requests involve the exchange of all documents relevant to the case. In today’s electronic age, document requests may involve electronic records such as emails, computer memory or electronic document drives. Requests for admissions are separate questions asking the other party to admit or deny a relevant fact of the case. Lastly, depositions are in-person interviews of the parties by the opposing attorney. The interview is in the form of questions and answers and is recorded by a court reporter. The record of the interview, along with the other discovery items, is often used to challenge the testimony and credibility of a person who may later change their statement during a trial.

Mediation / Arbitration.

After the discovery is complete, the court may order that the parties meet with a mediator or arbitrator to determine if a settlement may be reached. A mediator serves to help the parties reach a settlement. An arbitrator, however, will make a determination of the case and may also decide a monetary value to the case. The arbitrator’s award is not legally binding unless the parties agree to accept that determination.
If the parties do not agree to settle, then the matter will proceed to trial.


Motions involve asking the judge to make decisions about the case without an actual trial. For example, a discovery motion made to the court may compel an opposing party to produce a document or answer a question that they failed to produce or answer. Motions may also be made to the judge to ask the court to make a decision on the entire case, such as in motions to dismiss for failure to state a claim or on summary judgment grounds. If there is no facts in controversy or if the claim in the complaint is legally deficient, then the case may be dismissed by the court without a trial.


Whereas a case may be dismissed without a trial on motion, a case may also be won without a trial if the opposing party fails to answer. Where there is no answer, the plaintiff can ask the court to enter a default. If the monetary award is for a sum that is certain, the clerk of the court may be able to enter a judgment against the party that failed to answer. If the monetary award is to be determined and is not a sum that is certain, then a proof hearing will be necessary where the judge will make finding on the record to award the damages.


The final process of advancing a case or defending a case is called a trial. At trial, the plaintiff will have to prove his case by a preponderance or weight of the evidence. In other words, if the defendant has an equal amount of evidence or more evidence supporting his defense, the plaintiff will not be able to succeed in his case. The plaintiff will present his case first. The defendant can question any person or evidence presented by the plaintiff. The defendant can then present his case. Likewise, the plaintiff will be able to question any person or evidence presented by the plaintiff.


Following a trial, the matter may be dismissed or there may be an award or judgment by the court. The parties may then appeal that determination to a higher court, such as to the Appellate Division.

Picking the Right Attorney.

The litigation process is a long, stressful, and often expensive proposition. Depending on the nature of the claim or defense, even small cases in New Jersey can consume up to $30,000 in legal fees. The process is also complicated. Selecting an experienced litigation attorney who understands the law and who understands the legal process is important. You should not be paying a novice attorney to learn the law and the litigation process through your case.
The attorneys at The Choi Law Group, LLC have been representing clients in litigation matters for over 20 years. We would be happy to meet with you and discuss your case.
The above is presented for information purposes only and is not to be considered as legal advice.