The Phases of Litigation: Part 1 – Filing the Lawsuit and Responding

by Patrick Lane on May 24, 2018

Four-Phases-of-LitigationAt the beginning of 2018, BML attorney, Patrick Lane, began a blog series to clarify the litigation process. The first blog, Four Phases of Litigation, gave a broad overview of what to expect.


This, the second blog in the series, is designed to drill a little deeper into each phase of litigation.

In order to begin a lawsuit in the state of Oklahoma, a Petition must be filed in the District Court. Once the Petition is filed, the Court Clerk will issue a Summons for each defendant named in the Petition. Once a copy of the Petition and Summons are served, or delivered, to the Defendant, the Defendant must decide how to respond, usually by answering the petition or by filing a Motion to Dismiss.

The Defendant must also decide if he or she has Counterclaims against the person who filed the lawsuit, known as the Plaintiff. If so, the Counterclaims should be filed with the Answer.


The Petition

As noted above, the Petition is the document that initiates a lawsuit.  The purpose of the Petition is to give general notice to other parties of the Plaintiff’s complaints.  Oklahoma does not require a high level of specificity in a Petition. However, it should give enough of the facts of the dispute to show what caused the dispute and what relief the Plaintiff is seeking in the lawsuit, i.e., money, an injunction, or other relief.

While general statements of fact are permissible in Oklahoma for most claims, if the Plaintiff is asserting a claim for fraud the standard is higher.  The Plaintiff must give more specificity in the Petition as to the circumstances and events from which the fraud claim arises.

Failure to comply with the legal requirements for a Petition could result in the Defendant moving to dismiss the case out of court.


The Motion to Dismiss

When a Defendant receives a copy of the Petition, he or she has 20 days to respond.  If the Defendant’s attorney believes that the Petition does not contain the requirements of Oklahoma law for petitions, the Defendant may file a Motion to Dismiss.  

This particular type of Motion to Dismiss is known as a motion to dismiss for failure to state a claim upon which relief can be granted. It essentially tells the court that the Petition is deficient under Oklahoma law.

Failure to state a claim is one of several bases for moving to dismiss.  For example, a defendant may move to dismiss because the court where the Petition is filed lacks authority to make findings or rulings over the Defendant.  This is known as lack of personal jurisdiction.

Generally speaking, Motions to Dismiss are legal exercises where the only question is whether the law will permit the case to move forward.  In order to make that determination at an early stage in the lawsuit, every statement in the Petition is accepted as true and the Court must deny the Motion to Dismiss if there is any possible legal basis for the case to move forward.  

Oklahoma law does not favor Motions to Dismiss. However, there are certain circumstances, like the example described in this post, where Motions to Dismiss can and should be filed.

If the Motion to Dismiss is unsuccessful or if the attorney for the Defendant believes that a Motion to Dismiss would not be proper, then the Defendant must file an Answer.


The Answer

In an Answer, the Defendant responds to the allegations contained in the Petition.  Sometimes this is done line by line and sometimes general denials and admissions of several allegations are done.  Regardless, the responses tend to lack specificity because of the infancy of the case.

Furthermore, Oklahoma law does not require fact-specific responses to the allegations.  However, Oklahoma law does require that most affirmative defenses must be included in the Answer, or else the Defendant risks losing the right to assert the affirmative defense later in the case. Think of an affirmative defense as a legal excuse.  

For instance, if a plaintiff sued a defendant for breaching a contract, and the defendant asserted the affirmative defense of fraud and was able to prove that affirmative defense, the defendant may be legally excused for breaching the contract if the contract was obtained by fraud.



There are two types of counterclaims in Oklahoma: compulsory and permissive.  A compulsory counterclaim exists when the Defendant has claims against the Plaintiff that are based on the same dispute referenced in the Petition.  

A permissive counterclaim is a claim the Defendant has against the Plaintiff, but arises out of different facts. If the counterclaim if compulsory, it must be included with the Answer or else the Court may find the claim was waived.  If the Counterclaim is permissive, the Defendant may assert it with the Answer, but is not required to do so.

Once a counterclaim has been asserted by the Defendant, the Plaintiff has 20 days to file a Reply to the counterclaims.  After the Reply is filed, the initial phase of a lawsuit is completed and the case moves into the second Phase of Litigation: Discovery, which will be covered in my next post.


Topics: Litigation, Patrick Lane