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.