Court Process

Plaintiff. The party starting the case is called the “plaintiff.”

Defendant. The “defendant” is the party who did not start the case. The defendant knows there is a case when he or she gets served with court papers. [See Service, below.]   

Complaint. A “Complaint” is the paper where the plaintiff writes out the facts and law that they claim  in numbered paragraphs. The facts must include who the plaintiff is and where they reside, who the defendant is and where they reside, the facts that describe what the defendant did wrong, the law that allows the plaintiff to get a court judgment or order, and the amount of money the plaintiff has lost because the defendant did something wrong. VRCP 3, 8, 10. The plaintiff can request trial by jury. VRCP 38.

A plaintiff cannot have a trial by jury if the plaintiff files in small claims court. VRSCP 5.

The plaintiff can choose to start the case either by filing the Complaint in court, or by serving it on the other party. If the Complaint if filed first, the plaintiff must get “good service” on the defendant in 60 days. If the Complaint is served first, the plaintiff must file the Complaint in court in 21 days. VRCP 3. If the plaintiff misses these deadlines, the case can be dismissed.

Filing Fee. The plaintiff pays the court a filing fee. Filing fees are set by the legislature. 32 V.S.A. § 1431(b)(1). If you have a low income, you can use this form to ask the court to waive the filing fee.

Service. The plaintiff must make sure the Complaint and instructions about how to respond (called the Summons) are sent to the defendant. That is called being “served” papers. It is plaintiff’s responsibility to get “good service.” If the Summons and Complaint are sent first-class mail, and the defendant writes an Answer to the court, that is good service. If a sheriff or other process server gives the Complaint to the defendant, or brings it to the last and usual place the defendant lived and leaves it with a person of suitable age and discretion (a responsible person) that is good service. The plaintiff must prove the defendant got good service or the plaintiff cannot get an order or judgment. VRCP 4.

Answer. The defendant must write an “Answer” to the Complaint VRCP 3, 8, 12(a)(1)(a).The Summons that comes with the Complaint tells the defendant how many days after service she or he has to file a written Answer. (21 days for Civil Division complaints, 30 days for small claims complaints.) The Answer responds to each numbered paragraph of facts and the law set out in plaintiff’s Complaint. A defendant who has knowledge that the listed facts or law are true responds by writing “Admit” or “Agree.” A defendant who doesn’t know if the facts or law are true responds by writing “Denied” or “Don’t know.” A defendant who knows the facts or law in any given paragraph are not true responds by writing “Denied” or “Disagree.” See our sample Answer form you can use.

If the defendant admits or agrees to all of the facts and law in the plaintiff’s Complaint, the court can decide that the plaintiff will win.

The defendant can request that the trial be by a jury. The request must be in the Answer, or filed with the court within 14 days after serving the Answer (or serving a related pleading). VRCP 38. The defendant mails the Answer to the court and a copy to the plaintiff. VRCP 5, 12(a)(1). The defendant should be sure to file a certificate of service with the Answer. Here is the form for certificate of service.

If the case is in small claims, the defendant can disagree with the facts, and/or can disagree that the law gives plaintiff a remedy. The defendant can request trial by jury, VRSCP 5, but there is a filing fee. You can use this form to ask the court to waive the filing fee.

Answer can include defenses. In addition to disagreeing with the facts and law claimed by the plaintiff, the defendant’s Answer can include certain legal defenses, such as the law doesn’t allow plaintiff to file a case unless there has been an effective Termination Notice, accord and satisfaction (the plaintiff has already been paid), discharge in bankruptcy, or the case was filed after the statute of limitations has expired. VRCP 8(b).

Answer can include counterclaims. A defendant may write out claims against the plaintiff. [See Claims against landlord.] The defendant has to pay a filing fee, 32 V.S.A. § 1431(b)(1) or ask the court for a fee waiver for counterclaims. Usually, the defendant puts counterclaims in the same document as the Answer. The way to write out a counterclaim is to write out the facts that describe what the plaintiff did wrong, and the law that allows the defendant to get a court order, and the amount of money the defendant has lost because the plaintiff did something wrong. VRCP 13. The counterclaims can be served on the plaintiff or the plaintiff’s attorney by mail or by hand delivery. VRCP 5.

Default. If the defendant does not file an Answer within the days set out in the Summons, the court clerk can make a docket entry of default. VRCP 55(a). The plaintiff can make a Motion for Default Judgment. VRSCP3(e), VRCP 55(b). The plaintiff does not have to send the defendant a copy of the motion. VRCP5(a). If the court grants default judgment, the court usually mails the judgment to the defendant at the address where defendant was served. If the defendant did not meet the 21 or 30 day deadline to answer, the defendant can request that the court allow her to file a late Answer, and that request is usually granted. The defendant can also request that the court vacate the default judgment. The request must say why she didn’t answer, and must say what her defenses to the Complaint are. VRCP 55(c). In other words, the court might reopen the case but only if there is evidence that the outcome might be different.

Certificate of Service. A copy of every paper after the Complaint that is written and sent to the court must also be sent to other party (except a plaintiff’s Motion for Default Judgment). The party filing the paper with the court must also write up and sign a Certificate of Service to certify that the other party was sent a copy. VRCP 5.

Discovery. Discovery process exists so that trial can go faster and make more sense, because both parties have a right to know before trial what the other party is going to say. The law thinks it is not fair if one party tries to surprise the other at trial.

Either party can send the other party written questions that must be answered within 30 days. There are three kinds of written questions that are used frequently:

• VRCP 33 Interrogatories – these are questions seeking information that one party has for the other, The answers must be signed under oath by the person answering. VRCP 33(a).
• VRCP 34 Production of Documents – these ask for the other party to produce documents that are important to understanding the case. The response must be signed by the responding party or the party’s attorney. VRCP 26(g).
• VRCP 36 Request for Admissions – these are statements of fact that one party wants the other to agree to. The response must be signed by the responding party or the party’s attorney. VRCP 26g) 

If a party receives written questions and does not answer them, the court can keep the party from using the information that the question asked for as evidence at trial. VRCP 37(d) (for Interrogatories VRCP 33 and Requests for Production VRCP 34). If a party does not answer Requests to Admit within the time required, the facts in the request are deemed admitted, just as if the party had agreed with all the facts claimed by the other party. VRCP 36.

Also, either party can also require a party or another witness to appear at a deposition. A deposition is where a person must answer questions under oath, and the questions and answers are recorded in a transcript. Both parties have the right to be present at a deposition.

Subpoena. Parties in a lawsuit can get information from witnesses prior to or at trial. Ask the court to issue a subpoena to get information from witnesses. Use this subpoena form. The subpoena can order the witness to give the party copies of documents, and/or come to court to testify on the day the trial is scheduled. The party fills out the subpoena and gets the clerk of the court to sign it. Have a sheriff serve it on the witness and send a copy to the other party. Keep a copy of the proof of service you get back from the sheriff. VRCP 45. All subpoenas must include fees.

A motion is a request to the court. When you make a motion, the other party can respond. When the other party makes a motion, you should respond.

There can be many, many different kinds of motions. There are motions to change procedure, such as a Motion to Continue. VRCP 40. Some motions are to order a party to do something in the time before trial, such as Motion for Rent Into Court, 12 V.S.A. § 4853(a). For small claims, see VRSCP 4 and 13.

If you get a motion, pay attention.

Respond to motions in writing, on time. Some motions can decide the whole case, such as Motion to Dismiss, VRCP 12(b), Motion for Default, VRCP 55 (See Default, above), and Motion for Summary Judgment VRCP 56. Because Motions could change the whole case, the non-moving party should not ignore the Motion. Motions must be responded to in writing to the court, and sending a copy of the response to the other party and keeping a copy for yourself. VRCP 5. Most motions must be responded to in 14 days. An opposition to a motion asks that the request not be granted, and lists the reasons why it should not be granted. Often, the reasons to oppose a motion are that the moving party does not have all the grounds that the law or rule requires. VRCP 78.

Motions can be decided without a court hearing. Only a few of the many kind of motions have a court date for a hearing. Most are decided on the writings filed with the court. The court decides if a motion needs to be scheduled for hearing. If a motion is scheduled for hearing, the only issue the court will decide on that hearing day is the issue in the Motion; the court won’t decide the whole case. VRCP 78.

Motion for Summary Judgment. VRCP 56. The court’s decision on a motion for summary judgment could decide the whole case, so it is important to understand just what it is. It is a way to decide the case without a trial. Trials decide two things: what the facts are, and if any law gives either party the right to a judgment. If there is a trial in front of a judge or jury, they listen to the both parties’ version of the facts. The judge or jury decide what facts have been proven. Then the judge decides if the law justifies a judgment for either party.

What happens with a motion for summary judgment: at any time after a case is filed with the court, one party writes a motion that says, “there is no need for a trial, because we already know the facts. And, because there is no dispute about the facts, and because the law is on my side, I should get judgment in my favor.” The other party gets just 30 days to file a written opposition.

How can one party say there is no dispute of fact? A party can look at what has been written in the Complaint and Answer, and responses to discovery. She can also file affidavits from witnesses with personal knowledge of the facts. She can file documents with affidavits certifying where those documents came from, and that those are the true and accurate documents in the case. The summary judgment rule requires that she make a list of undisputed facts, and in the list write down the place (refers to the Complaint, Answer, affidavit, etc.) each fact comes from.

Your opposition to summary judgment could say, “there is a dispute of fact.” To do that, you must attach affidavits and documents which tell a different story or which raise questions about the facts the moving party has relied on. In an opposition, you must respond to each of the moving party’s list of undisputed facts. If you don’t agree with the fact, say so, say why, and write down what affidavit or document backs up your version (refer to the Complaint, Answer, affidavit, etc.).

Sometimes, the moving party’s facts may be true as far as they go, but the moving party has left out facts about one or more necessary parts of the law. Your written opposition could point out any missing facts that are necessary for the court to reach a legal conclusion. Provide an affidavit or document to support the facts you point out.

In your opposition, you could write that the moving party is wrong on the law, or that another law knocks out the legal reason for the claim.

Once both sides have filed their written Motion for Summary Judgment and Opposition to Motion for Summary Judgment, it is up to the judge. There is no deadline for the judge to decide. Usually the judge decides in writing. The judge is allowed to order either party to give more information, and may hold a hearing to better understand the parties’ legal arguments. The judge can decide to issue a judgment. The judgment can decide all or part of the case. Or, the judge can decide that there are facts in dispute, and there must be a trial to determine the facts.

What you should write when you are making a motion. Motions should be titled with a brief statement of the request. For example “Motion to Continue Trial scheduled for January 1, 2022.” Motions are based on a law or a rule. The law or the rule usually calls for grounds, meaning, accepted legal reasons, for the motion. The party making the motion must mail a copy of the motion to the non-moving party. Depending on the kind of motion, the non-moving party has 14 days to file a written opposition to the motion.

When it comes to scheduling issues or settlements, parties often make agreed-upon motions. One party writes up the motion and tells the court that the other party agrees.

Motions. Whether the court holds a hearing depends on the motion and whether the court thinks a hearing is necessary.

Status conference and pretrial conference. The court can ask the parties to come to court to report how much time they need before they are ready for trial, if they think they may be able to settle the case, and how long a trial will take. At a pretrial conference, the court can give deadlines for completing discovery or filing motions, or order parties to share trial exhibits before trial. The disputes between the parties are not decided at a status conference. VRCP 16.

Trial or merits hearing. The court will send a notice of trial or merits hearing. If a jury trial was not requested in time by the plaintiff or the defendant in the Complaint or Answer, VRCP 38, the trial will be in front of a judge.

On the trial day, the plaintiff goes first. The plaintiff has to prove all of the facts to win her case. This includes the amount of money the defendant owes her — which is called her “damages.” She can do this with witnesses and documents. The plaintiff’s questions to the witnesses she brings to court is called “direct examination.” A witness may testify to the reasons why a document is reliable and should be admitted as evidence. The defendant gets a chance to ask the plaintiff’s witnesses questions to show if the witnesses’ version is ambivalent, ambiguous or incomplete. This is called “cross examination.”

After all the plaintiff’s witnesses have testified and all of the plaintiff’s documents have been considered for admission, if the plaintiff does not have evidence on all necessary parts of the law, the defendant should ask the court to decide for the defendant. VRCP 50.

On the trial day, the defendant goes second. The defendant can bring witnesses and documents that show evidence that refutes — goes counter to — plaintiff’s claims, proves defendant’s defenses, or proves defendant’s counterclaims. Counterclaims can include damages the plaintiff owes the defendant. The plaintiff gets to ask questions of the defendant’s witnesses. The judge or jury gets to decide if the credibility of the witnesses and documents. If defendant is not able to refute plaintiff’s evidence, or does not bring evidence on all parts of the law of defendant’s defenses or counterclaims, defendant should not win.

It is very important to bring all the witnesses and documents to the trial or hearing day: it is the party's one chance to show why their claim or defense should win. Parties are not usually allowed to bring more evidence later.

Judgment. The court will decide which party won. Sometimes, the judge will decide on the day of trial, and state the reasons out loud in court. Sometimes the judge will “close the evidence,” and take days or weeks to write out the reasons for the court decision. Once the judge has decided, the judge says which party is granted judgment. It is possible that plaintiff can win on some claims and defendant can win on some counterclaims, and the court will decide the sum owed from one party to the other. In a case between you and your landlord, judgment can include an order saying who gets possession of the rental unit.

From the date of judgment, either party has 30 days to file a notice of appeal. It is filed with the trial court. VRAP 3(b) and must include a filing fee. 32 V.S.A. § 1431(b)(1). If you have a low income, you can ask the court to waive the fee. Use this fee waiver form. Parties cannot bring up new facts on appeal. Appeals are only to ask the court to interpret the law differently. Thirty (30) days after judgment enters, if no appeal has been filed, the judgment is final.

Enforcing judgments. The judgment often will say an amount of money that one party owes the other. (Sometimes, the court will put off deciding the exact amount of money until a “damages” hearing.) If there is an order showing the amount of money owed, the owing party (the “judgment debtor”) has a legal obligation to pay it to the other party (the “judgment creditor”) within 30 days. At the time payment is made, the parties should sign a written acknowledgement form that the judgment has been paid. This should be filed with the court.

If the parties can make an agreement on a payment plan, that could also be filed with court.

A judgment creditor can ask the court to enforce the judgment if the judgment debtor has not paid the judgment within 30 days. The judgment creditor has several ways of collecting on a judgment: asking a bank to freeze a bank account, VRCP 4.1(k), a lien on real property, 12 V.S.A. § 2903, a wage assignment order, 12 V.S.A. §§ 3168-3172. The court cannot order any of these ways once a judgment debtor shows the court that her income or assets are needed to take care of the reasonable expense of the judgment debtor and her dependents or are otherwise exempt from collection. 12 V.S.A. § 2740, 12 V.S.A. § 3170.