Civil Cases

Civil cases are cases brought to seek court orders telling someone to do something or to stop doing something and judgments for money damages . Two types of civil cases are specifically designed to be filed without the help of an attorney: a tenant petition to enforce the state Sanitary Code, and small claims cases.⁵ See Chapter 8: Getting Repairs Made for more about tenant petitions.

A civil court case requires you to negotiate hurdles of several kinds. These include filing the complaint, preliminary hearings, service of court documents, payment of filing fees, and the trial itself. In addition, time limits are set by the court for taking all the steps necessary to a successful lawsuit. You must be aware of these timing issues when you use the court system. This information can be found in the Massachusetts Rules of Civil Procedure and local court rules.⁶ These rules are complicated. Selected rules of civil procedure can be found online on the Trial Court Law Libraries website.

The Civil Complaint

Writing the Complaint

A civil case officially begins with the writing and filing of a complaint with the court.

The complaint is the document you create to define and start your lawsuit. At a minimum, it identifies the parties (plaintiff and defendant) and clearly states the legal claim with the basic facts that support it. It also outlines the relief (remedy) that you want the court to provide. For example, do you want the court to:

• Order your landlord to make repairs?
• Order your landlord to turn on the heat?
• Order your landlord to return your
  security deposit?
• Order your landlord to compensate you
  for the harm you have suffered?
• Fine or jail your landlord for her behavior toward you?

See Chapter 14: Taking Your Landlord to Court for descriptions of legal remedies in landlord-tenant cases.

The courts provide complaint forms for small claims actions and tenant petitions. See Form 14 for a sample Tenant Petition for Enforcement of the State Sanitary Code you can use. Legal form books provide a guide for writing other civil complaints. However, an attorney's guidance may be essential to be certain that your complaint is in the proper form.

Filing the Complaint

To begin a lawsuit, the original copy of the complaint is filed in the clerk's office of the court with jurisdiction over your case. The clerk does not have to accept complaints that do not comply with court rules.⁷ You should keep at least three copies of your complaint.

When you file your complaint, you are required to pay a filing fee unless you can show the court that you are indigent (unable to pay the fee).⁸ The procedure for waiving (not having to pay) filing fees is discussed in the Paying Court Fees section in this chapter.

When your complaint is filed, a court clerk will assign a case number called a "docket number." Ask the clerk to write this number down for you, and keep it in a safe place. This number will be used to file and identify your case, and it must appear on all court papers filed in your case.

Serving the Complaint

After your complaint is filed, the clerk will give you a summons to serve on (deliver to) the person or entity named as the defendant in your lawsuit. A summons is the official court document that tells a person when to appear in court. A complaint tells a person why she must appear in court.

A copy of the summons, together with a copy of the complaint, must be delivered to the defendant within a certain period of time to notify her that you are initiating a lawsuit. This is called service.⁹ The time period will vary, depending on the type of legal action you are initiating. To serve the summons and complaint, you can:

• Hire a sheriff or constable to serve the papers, or
• Ask the court to appoint a "special process server."

A special process server is someone who is not involved in your case, over age 18, and willing and able to serve the papers on the defendant.¹⁰ A special process server usually does the work at no cost. The disadvantage is often a lack of experience in dealing with a defendant who may be very upset or try to refuse receipt of service.

After service is made, the person who served the complaint completes what is called the "return of service" section on the original summons, describing how service was made. For example, the process server may give a copy of the summons and complaint in person to the defendant. The server then files the original summons and complaint with the court. Service is not complete until the summons, with the return of service section properly filled out, is filed with the court. Improper service of the complaint could be grounds for your complaint to be dismissed.¹¹ For example, you cannot mail a summons and complaint to an individual defendant.¹²

Paying Court Fees

If you cannot afford court fees, they may be waived if you meet the court's definition of indigency under the indigency guidelines.¹³

See Booklet 9: Affidavit of Indigency. You can use this form to ask that you not have to pay court fees. The clerk is empowered to make the decision to waive routine filing and service fees. You must go before a judge to waive special fees, such as fees for an interpreter, a deposition, or an expert witness.

Before the Trial

The Answer and Counterclaims

The defendant is required to file an answer to your complaint with the court. The answer admits or denies the allegations of your complaint. It also states defenses to your claims, and asks the court to take action favorable to the defendant. The defendant may also file counterclaims that create a countersuit against you. You should file your own answer to the counterclaims, just as the defendant is required to file an answer to your complaint.¹⁴

Motions

Motions are written requests filed with the court that seek orders about your case.¹⁵ Most motions can be made at any time in the case by any party to the case. Common examples are a motion to dismiss, which asks the court to end the case; a motion for a temporary restraining order, which asks the court to prevent or require certain actions by a party; or a motion for an attachment, which asks the court to freeze the assets of a party in anticipation of a judgment for money.

Discovery

All parties to a lawsuit are entitled to ask for discovery.¹⁶ Discovery is the process that allows the parties to examine each other's evidence, including a list of witnesses. Discovery takes different forms:

• A deposition is your verbal questioning of a witness under oath with a transcriber who produces a transcript of the deposition;
• Interrogatories are your written requests for sworn written answers to questions;
• Requests for Production of Documents are your written requests to examine documents or receive copies of documents; and
• Requests for Admissions are your written requests that a party admit or deny in writing particular statements of fact.

The discovery process can be very complicated and time-consuming, but it can be a very important part of a civil lawsuit. Remember: Both sides in a case are entitled to discovery.

Preparing for Trial

When you go to trial, your goal is to persuade a judge or a jury to decide in your favor. You will tell your story both with evidence and with argument. To accomplish this, you must prepare to prove your case. Before you go to court, you should:

Be thoroughly familiar with the facts in your case.

Prepare yourself and your witnesses to testify about these facts.

Gather all the physical evidence, including paperwork, that you want the court to see.

Evaluate each witness, document, or object and consider whether people who have no knowledge about your case will find the facts as you present them believable and relevant.

What Is Evidence

Evidence is what the court allows you to use to prove your case.¹⁷ It can be testimony by witnesses or documentary and physical evidence, such as letters, photographs, and reports. Evidence is convincing to the extent that it is credible or believable. For example, a witness may testify to the exact facts of your case, but if she also admits that she previously told a very different version of the facts, few judges will rely on her testimony to decide your case.

Preparing Witnesses

Witnesses play an important role in a trial. The purpose of a witness is to reveal the facts of a case or to confirm facts already revealed. In some cases, the testimony of witnesses may be your best evidence.

With some exceptions, witnesses may testify only about events about which they have personal knowledge. Witnesses cannot testify about what most people said to them or to anyone else. This is called hearsay, and hearsay is generally not allowed in court. To illustrate: Your neighbor can testify that she saw a workman in the basement working on the furnace. She usually cannot testify about what he said to her.

Before you go to court, it is very important that you prepare all of your witnesses. This includes yourself if you plan to testify. Witnesses are usually nervous, and preparation helps them feel more comfortable. Witnesses are telling a story to a judge who is almost certainly completely unfamiliar with the facts of your case. Their testimony must be organized to present all the important facts in a logical order. You do not want to have any surprises when your witnesses testify. To prepare each witness:

• Make a list of the facts that you believe this person may be able to testify to.
• Create a list of questions that ask the witness to state the facts.
• Write your questions down in a logical order.
• Go through your questions with your witnesses once or twice so you are all familiar with both the questions and he answers.

When you create questions to ask witnesses, the court does not allow you to put the answer in the question. This is called "leading the witness." To use a very simple example: If you want a witness to say that a person was present on a particular day, you should ask: "On June 1, 2008, who visited you?"—not: "On June 1, 2008, did Jane Doe visit you?"

Here is an example of questions that create a story and do not lead the witness. You want to prove that your landlord knew about bad conditions using the testimony of a neighbor who was present when your landlord visited your apartment. You might ask questions as follows:

• Please state your name and address.
• On January 1, 2003, did you visit my apartment?
• On that date, was anyone else present?
• Who was present?
• What rooms did my landlord enter?
• Did I say anything to the landlord?
• What did I say? (This is not hearsay because a witness can testify about what you, as the plaintiff or defendant in a case, said.)
• Did my landlord say anything?
• What did my landlord say?

Go through your questions with your witnesses, including yourself, and write down the answers. You can bring a written list of the questions and answers to court. You do not have to memorize them. Witnesses, however, may not bring a written list of answers. Also, make sure you tell your witness—and remind her of—the date and time your case is scheduled in court.

Preparing Evidence

Evidence such as documents, damaged personal property, photographs, reports, and other papers or objects play an important part in proving your case. For example, a photograph of a ceiling falling down or dead mice in an apartment can create a lasting impression on a judge. As they say, "a picture is worth a thousand words."

In court, documentary and physical evidence will be referred to as "exhibits" and will be assigned numbers. Exhibits can be very important. Here is a list of evidence that you may be able to use in court:

• A lease
to prove you have a tenancy.
• 
  
• Rent receipts and cancelled rent check to prove that you have paid rent.
• Board of Health reports, which can be used to prove violations of the state Sanitary Code.
• Letters and notices that you sent the landlord, which prove you gave her notice of bad conditions.
• Photographs of bad conditions, which can prove their existence.
• Diaries, logs, calendars, or other written records, which may be used to show when certain events occurred and can also be used to refresh your memory of them.
• Damaged personal property.

There are procedures for items to be accepted as evidence by the court. First, you must ask a judge permission to have your evidence (or exhibit) "marked for identification." A clerk will then give your evidence an exhibit number. Then you must establish that the evidence is authentic and relevant. Usually this is done by asking a witness questions about the exhibit. For example, you might ask a witness to identify a photograph, and then ask if the photograph is a fair and accurate representation of the place or object just identified. Then you ask a judge to "admit" the exhibit into evidence.

As you can see, the admission of evidence is sometimes a complicated matter, and not all courts handle it the same way. Board of Health reports that have been certified "under the penalties of perjury" by the Board of Health inspector may be placed into evidence even if the inspector is not in the courtroom to testify about the report. You (the tenant) should be prepared to testify about when and why you called the Board of Health for an inspection, and then you can put into evidence the inspector's report yourself.

Preparing Your Argument

You make an "argument" to the court when you summarize the facts of your case and explain what you want the court to do for you. Before the court hears testimony in a trial, the parties sometimes each make an "opening statement" or "opening argument." This statement should be short and to the point, highlighting the main points of your case and the relief you want from the court. At the end of the trial, each side will make a "closing statement." At this time, you should emphasize the facts that support your case, explain why you believe your case is the more persuasive, and again tell the judge what you want her to do.

Going to Court

Going to court is an unfamiliar experience for most people. One way to help yourself feel more comfortable in court is to visit the courthouse before your trial date. You can learn a great deal from simply watching court cases. If possible, watch cases similar to yours. Look at where the parties stand, where they put their papers, and how they address the judge. Watch how the clerk and the judge do their jobs.

Just remember that almost everyone is nervous in court. You can steady your nerves if you know your rights, know the facts in your case, and remember what your goal is and why you are using the court system.

Common Sense About Court Etiquette

When you go to court, you should keep the following in mind:

Dress Appropriately
Unfortunately, people make quick judgments based on appearance, and your clothing might influence the treatment that you receive. Judges, clerks, and lawyers wear business clothing. If you dress nicely, you may be treated with greater respect than if you appear in jeans and a T-shirt.

Be on Time
If court begins at 9:00 a.m., be there early to give yourself time to find the right room. If you are not present when your case is called, a clerk may dismiss your case. If you know you will be late, call the court and let the clerk know. Not being on time can have serious consequences in court. For example, if you do not appear in an eviction case when the list of cases is called, the clerk will enter a default judgment and you will lose your case (unless you had a good reason and you later ask the court to remove the default judgment).

Be Respectful
While you may find that some court staff are more agreeable than others, they have the power to make your life very difficult if they feel mistreated. When you arrive at the courthouse, you should be polite to everyone. You never know when you may need to ask someone for assistance.

Make Sure You Are in the Right Place
When you arrive at the court, go to the clerk's office and ask which courtroom your case is in. Go to that courtroom. The first thing that usually happens is that a clerk calls the names of all the cases scheduled. When your name is called, let the clerk know that you are present. At that time, if you are negotiating a settlement with the other side, you can ask the clerk for more time to work out your agreement.

If the clerk finishes reading the list of case names without calling your name, immediately go to the clerk and ask her to determine where your case is. You may be in the wrong courtroom, or the clerk's office may have made an error and not sent your case to the courtroom yet.

Ask Questions
If you are unsure of what to do or what has happened, ask someone for help. On the whole, court staff can be very helpful.

Negotiating a Good Settlement

Most people settle cases before the trial begins. Many times, settlement occurs on the trial date. This happens because trials are time-consuming and expensive. They are also unpredictable. No one can be sure how a judge or jury will decide a case.

For this reason, you should know what your bottom line is for settlement of your case. There are a number of factors to consider:

• How strong is your case?
• If money is involved, what is the most or least you could gain in a court decision and what is the lowest amount acceptable to you?
• What alternative settlement options do you have? For example, would you rather have money or stay in your home?
• Do you have any other goals, such as repairs or better security?

It is helpful to prepare a list of your goals for settlement. Include in the agreement a timeline for action by your landlord or you. The more specific you are, the better.

The heart of settlement negotiations is the willingness, on all sides, to compromise. Figure out which compromises you are willing to make to resolve your case. You will feel better about the decisions you make in settlement talks if you have thought your choices through in advance.

When you negotiate, be persistent. If you feel that you are losing control of your emotions or actions, ask for a "time out" in order to calm down so you will be able to think clearly. You can also ask for time out if you feel the other side is losing control. Try to have a friend or someone else with you when you negotiate.

If you reach a settlement, you must put it in writing and file it with the court as an Agreement for Judgment . Before you sign this document, read it very carefully. Be sure you understand its terms and can carry them out. For example, if you have agreed to a payment plan for back rent, make sure it is realistic, because if you don't keep to the agreement, a landlord may be able to evict you. In addition, once you have signed the agreement, it will be very difficult, if not impossible, to make any changes. At the request of a party, the agreement can be enforced by the court.

The Trial

Your trial begins when your case is called by the clerk. The parties are then usually asked to make brief opening statements. Remember, your statement should be short and to the point. You should tell the court the important facts of your case and what you want the court to do for you.

After both sides make opening statements, each side will present its case by calling witnesses to testify and by introducing exhibits. Do not be afraid to ask for help. After each witness testifies, the other side will have a chance to question the witness. This is called cross-examination.

When all the evidence has been presented, the parties will make closing arguments to the judge. This is when you tell the judge what you have proved and why she should decide in your favor. The judge may tell you her decision when closing arguments are completed, but, more often, the judge will "take the case under advisement."¹⁸ If so, you will receive the decision in the mail. Do not be surprised if you have to wait a few weeks or even a few months for a judge's decision.

Judgments and Appeals

The court's decision is called a judgment.¹⁹ Under certain circumstances, you may wish to consider challenging the decision and appealing the case. Generally, if a judge decided against you because she felt that the other side was more believable, you probably have no grounds for an appeal. On the other hand, if the judge did not follow the law, you may have a better chance of succeeding on appeal. A decision to appeal is complicated, and requires the assistance of an attorney. It is important to be careful when filing an appeal because you can be required to pay money to the other side for filing a frivolous appeal.²⁰

If you want to appeal a decision, you must act quickly after receiving the court's decision, because appeals must be filed within a very short time. For example, in most civil lawsuits, the parties have 30 days to appeal a decision. In eviction cases, the appeal period is only 10 days. If the decision is not appealed within the time limit, the judgment becomes final.

Enforcing Court Judgments

Collecting money from or enforcing a judgment can be the hardest part of winning your case, and it certainly can be the most frustrating. If your landlord is not willing to pay you or cooperate with the court's order, you should probably consult an attorney who specializes in collection law. In most cases, a judgment is enforceable for 20 years.²¹ The primary legal ways to seek compliance with and payment of a civil judgment are:

• Attachment,
• Trustee Process,
• Execution,
• Supplementary Process,
• Contempt.

Attachment

An attachment is created to place a hold on the sale or transfer of property during a lawsuit so that it will be available to satisfy a court judgment.²² An attachment can be requested as soon as you begin your court case. You must show the court that you have a good chance of winning your case and that your landlord may dispose of the property if she is not prevented from doing so. If you win a court judgment, the property attached will be available to pay the judgment.²³

Trustee Process

Trustee process is similar to the attachment process in that it places a hold on property during a lawsuit.²⁴ The difference is that a third party, a trustee, is asked to control or hold the property owned by the landlord. Most often, trustee process is used to ask a bank to freeze accounts held in the name of the landlord. When used against bank accounts, trustee process is a powerful weapon. It is hard to do business on a cash basis.

Execution

When your court judgment is final, you must request the court to issue an execution in order to enforce the judgment.²⁵ A sheriff can then be hired to "levy on" the execution to obtain satisfaction of the judgment.²⁶ This means that a sheriff can have certain property sold to satisfy the judgment. Because the levy process is complicated, an attorney should be hired to oversee it.

Supplementary Process

When you have an unpaid execution that requires your landlord to pay money to you, you are a creditor and your landlord is a debtor. In supplementary process, a court hearing is held so a creditor can ask a debtor about the debtor's ability to pay the money owed under the judgment.²⁷ Using the information obtained from a supplementary process hearing, the court can create an order requiring payment according to a specific schedule. In some cases, however, the court is powerless because a debtor has no assets and is judgment-proof.²⁸ Small claims (for no more than $2,000) has its own supplementary process.²⁹

Contempt

When a landlord fails to follow the terms of a court order, she may be held in contempt and punished by the court.³⁰ For example, a landlord who fails to make court-ordered repairs may be ordered to live in her building until the repairs are completed.³¹