LEGAL GUIDE: ANATOMY OF A LAWSUIT

Whether you are contemplating initiating a lawsuit by suing someone or you have just been served with a summons and complaint in an existing lawsuit, entering into the civil litigation arena in California can be a scary feeling. Despite all of the self-help tools available, the court system is still a complicated process, and competent legal guidance is necessary. Here are the basics of a lawsuit in Superior Court in California.

The Pleadings

The pleadings are the initial papers filed both the plaintiff and defendant in the lawsuit. The plaintiff files a complaint to start the lawsuit (although in limited circumstances, a petition is used instead). The defendant then has a few choices on how to respond.

The defendant can file an answer, which is a formal, legalized response to the complaint. It generally contains a general denial of all claims made in the complaint, along with legal defenses to the complaint called affirmative defenses. However, if the complaint is verified (signed by the plaintiff under oath), then an answer must contain a paragraph by paragraph admission or denial of each allegation.

Alternatively, the defendant can file a demurrer, which is a special motion that challenges the legal sufficiency of the complaint. In a demurrer, the facts of the complaint are treated as true (even if the whole document is full of lies). Judges generally disfavor demurrers because they often give the plaintiff a chance to "fix" the complaint. Thus, unless the demurrer is going to be able to eliminate the entire lawsuit, it is generally not worth the time or money.

The defendant can also file a Motion to Strike, which is a line item attack on the complaint for specific issues (such as to eliminate a claim for punitive damages if there is no appropriate cause of action in which to claim punitive damages, or to eliminate a claim for attorneys' fees where there is no contractual, statutory or other legal basis to claim reimbursement of attorneys' fees).

Once the pleading stage has been finalized and the defendant has filed an answer, the case proceeds to discovery.

The Discovery Process

Discovery is a series of procedures in which each party can find out what facts, documents, and other information and evidence the other side has to prove, disprove or defend the allegations made in the lawsuit. Generally, there are two types of discovery: written discovery and depositions. There are a few other specialized procedures (such as an independent medical examination or physical inspection of land), but written discovery and depositions are used almost universally in every case.

Written discovery consists of Form Interrogatories, Special Interrogatories, Requests for Admission and Requests for Production of Documents. Written responses must be provided within 30 days after service (i.e. placing the written discovery in the mail), plus an additional 5 days if the discovery is mailed. Responses must be made under oath.

Form Interrogatories are a form with pre-printed questions where the parties can "check the box" to select which questions to ask. There are no limit as to the number of questions selected on this form (but not every question applies to every case). Special interrogatories are written question that the attorney drafts specific to the facts and claims in the lawsuit. Special interrogatories are limited to a total of 35 per party in each case, so the questions must be thought of carefully in advance. There can be no subparts to the questions to try to get around the rule of 35.

Requests for Admission are written questions asking the other party to admit or deny specific facts. These questions are also subject to the limit of 35 in each case and cannot have subparts. In addition to admitting or denying facts, the Requests for Admission can also be used to get another party to admit the genuineness of documents.

Requests for Production of Documents is self-explanatory, but is often crucial to proving or defending a case. Documents made at the time of the event/incident carry much more weight in terms of evidentiary value over testimony of interested parties after the fact.

Depositions gives the parties an opportunity to ask the other side questions (normally orally) so that the parties can understand the other side's potential trial testimony. Questions are asked and answered under oath and a court reporter is present to record everything that is said during the deposition. Depositions are crucial because it gives each side an opportunity to lock in their opponent's testimony and prepare for trial. For people that may play games in written discovery by lodging many objections and providing vague and evasive answers, depositions are face to face and with few exceptions, such as attorney-client privilege, the person who is answering the questions (called a deponent), has to answer every question posed. In most cases, depositions are limited to 7 hours.

Motions

Throughout the litigation process, a party may bring one or more motions, which are requests to the judge to order someone to do something. These can come up at any point during the case. Motions to compel, which are discovery motions that ask a judge to force the other party to answer a discovery question, are common. Another typical motion is a motion for summary judgment. Those motions ask the judge to make a decision in the case, without a trial by showing there is no dispute of any material facts and that, as a matter of law, their side wins. These are very complex and document heavy motions, which means they are very expensive to prepare or defend.

Trial

Finally, if the case has not settled or been disposed of by a motion for summary judgment, the case will eventually proceed to trial. Early on in the case, the court will set dates for the trial and related deadlines and hearings. Trials are being set 18-24 months after the lawsuit was filed in San Diego County. Preparing for trial is a very time-consuming process because attorneys have to assimilate all of the information that has been gathered throughout the case. The discovery responses and deposition transcripts must be reviewed carefully to prepare questions for every witness.

The length of the trial depends greatly on the factual and legal issues in the case and whether it is a jury trial or a bench trial (where the judge makes the decision instead of a jury). Trials can be as little as a few hours or as long as several weeks.

All trials start with motions in limine, which are pre-trial motions that address whether certain parts of evidence will be allowed in the trial. The case then proceeds to jury selection (if there is a jury) where the attorneys can to question a panel of potential jurors about pre-conceived notions and biases about the issues in the case and remove jurors from the panel. Once the jury is selected, both sides can make an opening statement to give the jury a roadmap to what evidence they are going to hear in the trial. The plaintiff then gets to call his witnesses. The defendant has an opportunity to cross-examine plaintiff's witnesses. The judge will rule on any objections made during the trial and any motions made during trial. Once plaintiff has completed presenting all of his witnesses and evidence, the plaintiff rests. The defendant then has an opportunity to call additional witnesses in support of the defense, who are then questioned and cross-examined. Once the defense is done, both sides get to present a closing argument, where the attorney ties in all of the facts and evidence given at the trial to the legal requirements for the case (known as elements) to either prove their case or disprove the other side's case. Then, it is up to the jury (or the judge) to make a decision.

Of course, even though you have a decision by the judge or jury, the case is not necessarily over. There is an opportunity for post-trial motions, to challenge the sufficiency of the jury's decision. After that, either party can file an appeal to the Appellate Court to challenge the underlying decision. The appellate process generally lasts 2-3 years.