ACTION
Conduct; behavior; something done; a series of acts.
A case or lawsuit; a legal and formal demand for enforcement of one’s rights against another party asserted in a court of justice.
The term action includes all the proceedings attendant upon a legal demand, its adjudication, and its denial or its enforcement by a court. Specifically, it is the legal proceedings, while a CAUSE OF ACTION is the underlying right thatgives rise to them. In casual conversation, actionand cause of action may be used interchangeably,but they are more properly distinguished.At onetime, it was more correct to speak of actions atlaw and of proceedings or suits in EQUITY. Thedistinction is rather technical, however, and notsignificant since the merger of law and equity.The term action is used more often for civil lawsuitsthan for criminal proceedings.
Parties in an Action
A person must have some sort of legal rightbefore starting an action. That legal rightimplies a duty owed to one person by another,whether it is a duty to do something or a dutynot to do something. When the other personacts wrongfully or fails to act as the law requires,such behavior is a breach, or violation, of thatperson’s legal duty. If that breach causes harm, itis the basis for a cause of action. The injured person may seek redress by starting an action incourt.
The person who starts the action is theplaintiff, and the person sued is the defendant.They are the parties in the action. Frequently,there are multiple parties on a side. The defendantmay assert a defense which, if true, willdefeat the plaintiff ’s claim. A counterclaim maybe made by the defendant against the plaintiff ora cross-claim against another party on the sameside of the lawsuit. The law may permit JOINDERof two or more claims, such as an action forproperty damage and an action for personalinjuries, after one auto accident; or it mayrequire consolidation of actions by an order ofthe court. Where prejudice or injustice is likelyto result, the court may order a severance ofactions into different lawsuits for differentparties.
Commencement of an Action
The time when an action may begin dependson the kind of action involved. A plaintiff cannotstart a lawsuit until the cause of action hasaccrued. For example, a man who wants to use aparcel of land for a store where only houses areallowed must begin by applying for a variancefrom the local ZONING board. He cannot bypass the board and start an action in court. His rightto sue does not ACCRUE until the board turnsdown his request.
Neither can a person begin an action afterthe time allowed by law. Most causes of actionare covered by a STATUTE OF LIMITATIONS,which specifically limits the time within whichto begin the action. If the law in a particularstate says that an action for LIBEL cannot bebrought more than one year after publication ofa defamatory statement, then those actions mustbe initiated within that statutory period. Where there is no statute that limits the time to commencea particular action, a court may neverthelessdismiss the case if the claim is stale and iflitigation at that point would not be fair.
A plaintiff must first select the right court,then an action can be commenced by delivery ofthe formal legal papers to the appropriate person.Statutes that regulate proper procedure forthis must be strictly observed. A typical statutespecifies that an action may be begun by deliveryof a summons, or a writ on the defendant. Atone time, common-law actions had to bepleaded according to highly technical FORMS OFACTION, but now it is generally sufficient simplyto serve papers that state facts describing a recognizedcause of action. If this SERVICE OFPROCESS is done properly, the defendant has fairnotice of the claim made against him or her andthe court acquires jurisdiction over him or her.In some cases, the law requires delivery of thesummons or writ to a specified public officersuch as a U.S. marshal, who becomes responsiblefor serving it on the defendant.
Termination of an Action
After an action is commenced, it is said to bepending until termination. While the action ispending, neither party has the right to startanother action in a different court over the samedispute or to do any act that would make thecourt’s decision futile.
A lawsuit may be terminated because of dismissalbefore both sides have fully argued themerits of their cases at trial. It can also be ended because of COMPROMISE AND SETTLEMENT,after which the plaintiff withdraws his or heraction from the court.
Actions are terminated by the entry of finaljudgments by the courts. A judgment may bebased on a jury verdict or it may be a JUDGMENT NOT WITHSTANDING THE VERDICT. Where there has been no jury, judgment is based on the judge’s decision. Unless one party is given leave—or permission from the court—to do something that might revive the lawsuit, such as amending an insufficient complaint, the actionis at an end when judgment is formally entered on the records of the court.
CROSS-REFERENCES
Civil Procedure.
