Action

• Author: Jeffrey Lehman, Shirelle Phelps

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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

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CAUSE OF ACTION is the underlying right that gives rise to them. In casual conversation, action and cause of action may be used interchangeably, but they are more properly distinguished. At one time, it was more correct to speak of actions at law and of proceedings or suits in EQUITY. The distinction is rather technical, however, and not significant since the merger of law and equity. The term action is used more often for civil lawsuits than for criminal proceedings.

Parties in an Action

A person must have some sort of legal right before starting an action. That legal right implies a duty owed to one person by another, whether it is a duty to do something or a duty not to do something. When the other person acts wrongfully or fails to act as the law requires, such behavior is a breach, or violation, of that person's legal duty. If that breach causes harm, it is the basis for a cause of action. The injured person may seek redress by starting an action in court.

The person who starts the action is the plaintiff, and the person sued is the defendant. They are the parties in the action. Frequently, there are multiple parties on a side. The defendant may assert a defense which, if true, will defeat the plaintiff's claim. A counterclaim may be made by the defendant against the plaintiff or a cross-claim against another party on the same side of the lawsuit. The law may permit JOINDER of two or more claims, such as an action for property damage and an action for personal injuries, after one auto accident; or it may require consolidation of actions by an order of the court. Where prejudice or injustice is likely to result, the court may order a severance of actions into different lawsuits for different parties.

Commencement of an Action

The time when an action may begin depends on the kind of action involved. A plaintiff cannot start a lawsuit until the cause of action has accrued. For example, a man who wants to use a parcel of land for a...