Last Faoro & Whitehorn A Professional Law Corporation

Over 30 Years Of Trusted And Respected Representation

The Anatomy Of A Typical Lawsuit

The Anatomy of a Typical Lawsuit


William C. Last, Jr.

This article is intended to provide an overview of the stages of civil litigation process in California state courts. .

The Pleading Stage

A civil case is commenced when the plaintiff files complaint in the appropriate California Superior Court. A complaint is a statement of a series of allegations which, if proved, entitle the Plaintiff to a judgment. While Superior Courts are state courts, they administered on a county by county basis. California Civil Procedure statutes determine the appropriate county. The court clerk will file the complaint and issue a summons and other papers which must be served on each defendant within a fixed number of days. The number of days allowed for service is determined by each county.

Once the complaint and summons are served on the defendant, the defendant has thirty days to file and serve a response. If the defendant fails to file a response, the plaintiff can file a request for entry of default with the court. At the same time or thereafter, the plaintiff can request a default judgment.

The response can be in the form of an answer, a demurrer or a motion. An answer is the defendant’s response to the allegations in the plaintiff’s complaint together with any new allegations which would establish an affirmative defense to the claims in the complaint. A demurrer is a motion that challenges the legal sufficiency of the complaint. In essence, it raises issues of law, not fact, regarding the form or content of the complaint. A defendant can also file motions challenging the way in which the complaint was served, whether the case is filed in the correct court, and other technical issues. When the defendant files an answer, it may also file a cross-complaint against the plaintiff or a third party if the defendant has any related affirmative claims.

After all the defendants and cross-defendants to the lawsuit have filed answers and/or cross-complaints the case is deemed [email protected] At-issue means that legal and factual issues which are in dispute are now fully framed.

The Discovery Stage

In a civil case, the parties have the right to obtain the evidence that is possessed by the other side or third parties through written discovery and depositions. Written discovery consists of questions directed to another party known as interrogatories, statements which a party is asked to admit or deny known as requests for admissions, demands to inspect documents, things, or places known as demands for inspection, and, in personal injury cases, requests for medical or mental examinations. Depositions allow a party to ask questions of an individual under oath and before a court reporter.

Generally, parties engage in written discovery before the oral depositions commence. It is important to remember that if a party fails to provide proper and timely discovery responses, the court can sanction the party. Sanctions can range from monetary fines to a termination of the lawsuit. Typically, the discovery process is the most time intensive and thus costly aspect of a case.

Due to the nature of written discovery, it is very common for counsel to agree to extending the response dates. In fact, it is considered a professional courtesy to grant reasonable requests to extend the date for responding to discovery. If you refuse to grant such a request, a subsequent request to the other side will be denied. Written and oral discovery must be completed 30 days before the date set for trial. The completion of the discovery process is not a procedural requirement for the matter going to trial or mediation. Thus, the granting of an extension to respond to discovery will not delay the resolution of your case.

Approximately 90 days after the complaint is filed, the court will hold a case management conference. During such conferences the court will discuss the trial date, mediation, discovery issues, and any other pre-trial issues. After such conferences the court, may or may not, issue an order setting forth the outcome of the conference.

As stated, one of the issues that will be discussed during the conference is mediation. Mediation is a non-binding, private and informal alternative dispute resolution process in which a neutral mediator assists the parties in resolving their dispute. Anything that is said or discussed during the mediation session will not be admissible during the trial of the matter. Though parties are not obligated to mediate, doing so, especially early in the case can significantly reduce the costs of resolving a dispute. Over 90 percent of all lawsuits end in a settlement, but the chances of settlement tend to be higher before parties have invested a great deal of time and money in litigation.

The mediation commences with the selection of a mediator and the selection of a date and time for the mediation. Shortly before the session, each side will file a statement with the mediator, explaining that side’s view of the facts and law. Once the mediation session is convened, the parties collectively meet with the mediator to discuss the case. After the joint session is completed, the parties will separate. The mediator will then discuss settlement and the facts with each party. The mediator will also convey settlement offers and demands. If a settlement is reached, the parties will, typically, reduce the settlement agreement to writing.

If the demands in the complaint are for less than $50,000, and the parties do not opt for mediation, the matter will probably be sent for non-binding judicial arbitration. Once the matter is sent to judicial arbitration, an arbitrator will be selected. The actual arbitration usually takes less than one day. After the arbitrator renders an award, a dissatisfied party may request a Atrial de [email protected], which requires that the matter be tried by a judge or a jury.

Before trial, the parties may make various motions. Motions are requests for court orders and are made in writing and then argued before the court. When one party files a motion, the other party will have an opportunity to file a response. After a response is filed, the moving party may file a reply. The motion will then be argued before a judge who will issue a ruling and orders.

The subject of motions usually center on discovery and the pleadings. There are also pre-trial motions that can terminate the case. Terminating motions can include a Motion For Summary Judgment in which one party argues that the only remaining issues in the case are legal ones.

It is the goal of most Superior Courts to have a matter tried within one year of the date of the filing of the lawsuit. The actual time that elapses between the filing of a lawsuit and trial depends on how congested the trial departments are in that county and the complexity of the case.

Once the trial date is set a number of pre-trial deadlines will be calendared. For example, one deadline requires discovery to be completed thirty days before the trial date. One important date is the date for posting jury fees. Shortly before the trial date, it will also be necessary to serve subpoenas on non-parties to compel them to testify during the trial.

The Trial Stage

On the day of trial, the parties will appear before the presiding judge to be assigned to a trial department or courtroom for actual trial of the matter. The trial calendar is normally heard every Monday. However, some counties call the calendar on Friday or specially set the case before a pre-assigned judge. Due to the number of cases that are set for trial on any given day there is no guarantee that a particular case will be assigned to trial department. If the case cannot be sent out to trial during the week within in which it was set for trial, a new trial date will be assigned by the court.

Once the case is assigned to a trial department, the trial will follow certain steps. The first step is the selection of a jury. After a jury is selected, opening statements will be made.During the opening statement the parties will explain what evidence they intend to introduce during trial. The plaintiff will give the first statement followed by the defendant.

After the opening statements are made, the plaintiff will call the first witness to testify. Any documentary evidence that the witness can authenticate will be introduced into evidence. After the direct examination of the witness by the party who has called the witness to testify, the other party will have an opportunity to cross-examine that witness.

After the plaintiff calls all the witnesses they have chosen to have testify, may make motions which are intended to terminate the matter. Assuming the case goes forward, the defense will then call the defense witnesses. The same witness examination procedure is in place for the witnesses called by the defense.

After the defense completes its case-in-chief, the plaintiff will be allowed to call rebuttal witnesses. The defense is then allowed to call sur-rebuttal witnesses.

After all the witnesses are called and all the documentary evidence has been admitted, jury instructions are finalized. Shortly before trial, each party will have submitted proposed instructions. While some of these will be given in the course of the trial, most are given after all the evidence is in. Once the jury instructions are approved by the judge the parties will make their closing arguments. The plaintiff will the first closing statement followed by the defendant. A rebuttal argument can be made by the plaintiff.

The jury is then instructed by the judge. After the instructions are read to the jury they will retire to deliberate their verdict. If there is no jury, the judge will take the case under submission. In a jury case, once the jury has rendered a verdict it will be read in the courtroom. In a non-jury case, the judge will typically send out a written decision.

If either party is dissatisfied with the outcome of the trial, they may make post-trial motions which are intended to modify the decision or obtain a new trial. However, most such post-trial motions are denied.

After the decision is rendered, the prevailing party will be allowed to make a motion to recover its trial costs. In some cases trial costs can include attorney fees.

The Appeal Stage

After the trial is complete, the losing party can file an appeal with the appellate court. The appellate court will only review the trial record for legal errors and will only reverse the judgment if convinced that an error affected the outcome of the trial. The appellate court will not admit new evidence. Each party will file written briefs which are intended to frame the issues the party wants the appellate court panel to focus upon.

In California, the Court of Appeal will hear the appeal from the trial court. If a party is unhappy with the Court of Appeals decision, they can seek review by the California Supreme Court. The California Supreme Court is rarely required to hear an appeal. In other words, it selects the cases it wants to hear. As a result, only a select few cases are reviewed by the California Supreme Court.