Chapter 8: Parties in a Civil Case

Before we discuss the steps (or stages) in a civil case (in chapter 9), we first need to define and discuss the parties involved. Some of these parties also are involved in criminal cases, although we will not specifically address them in that context here. The parties involved in a civil case are plaintiffsdefendantsattorneysjudges, and juries.
8.1      Plaintiffs
As discussed in chapter 4 at 4.2, a plaintiff is a party who brings a civil case claiming to have been injured by the wrongful conduct of a defendant. A plaintiff brings a civil case by filing a lawsuit (i.e., suing) in the appropriate court, which we will discuss in chapter 9. In some cases and courts, a plaintiff may be called a petitioner. 

A plaintiff must have standing to bring a suit. Standing refers to a party’s right to assert a legal claim in a case. The general rule is that only a party who is directly injured by another may file a lawsuit. Therefore, Party A may not sue on behalf of his friend Party B who was injured in an automobile accident with Party C (unless, of course, Party A was involved in the accident as well). Other types of standing arise in class actions and derivative actions. We will briefly discuss derivative actions in chapter 20.

class action (or representative action) is a type of lawsuit in which a group of plaintiffs bring claims collectively against a defendant or group of defendants (or, less frequently, where a diverse group of defendants demand to be treated as a class against a single or group of plaintiffs). Modern class action law was developed in the United States; it may have its antecedent, however, in the medieval English phenomenon of “group litigation,” which allowed social groups such as villages or guilds to sue or be sued.[1] A class action suit may be brought for virtually any reason, but is most common (and most widely publicized) in two areas: (1) mass tort, where a defendant or defendants is alleged to have caused tortious harm to a large body of persons or organizations; and (2) shareholder rights, where shareholders of a corporation or equity holders of another type of business entity file a joint suit to protect certain rights under corporate (or analogous business entity) law. We will discuss shareholder rights in chapter 20.

A related type of litigation is multidistrict litigation (MDL), which is designed to handle multiple complex cases (usually tort actions) filed in different federal district courts that arise out of the same claims and facts.[2] Often the cases consolidated in MDL are themselves class action suits. An MDL may involve only a few or hundreds of cases. The disposition of the MDL cases is determined by the Judicial Panel on Multidistrict Litigation (JPML), which is a committee of seven federal district and appellate judges appointed by the Chief Justice of the US Supreme Court. In many instances, all of the cases are consolidated by transfer to a single district court. This can lead to extraordinarily complex situations where judges are forced to consider the laws of multiple states and apply them to different defendants and plaintiffs. In some other cases, the individual actions are heard in their separate districts but are coordinated for pretrial purposes (for example, for motion practice and discovery, which we will discuss in chapter 9 at 9.2 and 9.4, respectively).[3]

8.2     Defendants
defendant is a party being sued by a plaintiff in a civil case. In a lawsuit, a plaintiff claims to have been injured by the wrongful conduct of a defendant. In some cases and courts, a defendant may be called a respondent.
8.3     Attorneys
An attorney is a person who practices law and acts as an advocate for a party. In the United States, the term attorney, counselor, and lawyer are synonyms. Also, sometimes an attorney may be referred to as an “esquire,” designated as “Esq.” after the attorney’s name. An attorney must be admitted to practice law in a particular state or federal jurisdiction to represent parties in that state. If admitted to practice law in a state, an attorney is said to be a member of the state’s bar. In most states, an attorney may become a member of the bar by graduating from a law school accredited by the American Bar Association (ABA) and passing the state’s bar exam. In some states, there are other ways to become a member of the bar (e.g., practicing law for a certain period of time in another state and then “waiving” into the bar).
Attorneys have a fiduciary relationship with their clients. This means that an attorney has a duty to act for the benefit of a client. In fact, the ABA Model Rules of Professional Conduct (on which most state rules for attorneys are based) provide that an attorney (as an advocate) must zealously assert the client’s position under the rules of the court system. Another aspect of the fiduciary relationship is the attorney-client privilege. Under the attorney-client privilege, an attorney must not divulge the substance of confidential communications between the attorney and client, unless authorized by the client. The attorney-client privilege is primarily for the benefit of the client.
8.4     Judges
judge is a public official who presides over a case and resolves disputes by issuing judgments. Trial court judges hear and decide legal issues (and factual issues in bench trials). Legal issues are questions that must be answered by applying and interpreting the law, whether it derives from the Constitution, a statute, the common law, or a rule or regulation.
In his Senate confirmation hearings in 2005, US Supreme Court Chief Justice Roberts likened judges to umpires at a baseball game:

Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire. 

Chief Justice Roberts’s judges as umpires analogy is a helpful way to remember the role of judges. Not all judges agree with the analogy, however, including recently-appointed US Supreme Court Justice Kagan. In her Senate confirmation hearings in 2010, Justice Kagan stated:

The metaphor might suggest to some people that law is a kind of robotic enterprise, that there’s a kind of automatic quality to it, that it’s easy, that we just sort of stand there and, you know, we go ball and strike, and everything is clear-cut, and that there is no judgment in the process. And I do think that that’s not right . . . . 

We should be asking ourselves what the proper role of judges is—and whether the positions of Chief Justice Roberts and Justice Kagan are mutually exclusive. After all, in baseball, batters get three strikes and four balls (an umpire giving more strikes or balls would be “making the rules”), but the strike zone may vary depending on which umpire is behind home plate. Some umpires have a tight strike zone, while others have a wide one. Also, sometimes the strike zone may vary depending on the game situation, which is why savvy hitters know to guard the plate with two strikes—and to swing if the ball is anywhere close!
In some courts, judges may be called justices (e.g., the US Supreme Court) or chancellors (e.g., the Delaware Court of Chancery). And public officials in inferior courts are sometimes referred to as magistrates or justices of the peace.
8.5     Juries
jury is a group of persons selected to decide factual issues. Persons who serve on juries are called jurors. In most cases, either party may demand a jury trial. There are cases and courts, however, where jury trials are not available for civil cases. In a jury trial, the jury decides the factual issues and the judge decides the legal issues. That is why a jury is referred to as the “fact-finder.” This means that juries hear testimony and review documents and other physical evidence to determine what, when, and how events took place.

[1] Stephen C. Yeazell, From Medieval Group Litigation to the Modern Class Action (Yale Univ. Press 1987).
[3] Perhaps the best-known (and certainly largest and longest) example of MDL is MDL No. 875, which was consolidated in 1991 in the Eastern District of Pennsylvania to manage personal injury and wrongful death cases arising out of asbestos-related illnesses and ailments. In the two decades since its inception, over 121,000 cases have been transferred into MDL No. 875, and nearly 90% of these have been settled, dismissed, or remanded.