What to expect if you get involved in a lawsuit

Every lawsuit is different based on the issues, the parties and the attorneys for the parties. However, there is a basic process that is common to most civil lawsuits. That process involves several phases. Some of these phases must occur before others. Other phases can occur at various times during the lawsuit. Some of the phases may never occur. However, assuming the case ends in a trial, the following phases are usually present.

    Phase One: Attorney Engagement
  • This first phase of any lawsuit handled by the firm is the attorney engagement phase. This phase involves a detailed evaluation of the case by firm personnel for purposes of determining whether or not to take the case. This “intake” process is especially important when the firm is being asked to handle the matter on a contingency fee basis. Such a case requires the firm to spend dozens, if not hundreds, or even thousands of hours working on a case, as well as $30,000 to $50,000 or more in costs, with only the prospect of recovering those expenses from a successful result. Therefore, the firm must independently asses its risk in taking the case and will end up only taking a small percentage of possible cases presented to it, thereby rejecting many cases that are legitimate and even potentially successful. If the firm rejects your case, please do not consider the rejection an indication that the firm believes your case is without merit. On the other hand, if the firm agrees to take your case, it is also not making any representations that the case will be a success.

    After intake evaluation, if the firm determines they are willing to handle the case, the client is presented with an attorney engagement letter, which is a standard agreement that lays out, among other things, the type of fee arrangement agreed upon. There are a broad range of possible fee engagement terms including: hourly, flat fee, contingency, and hybrid (mix of hourly and contingent). For a discussion of these forms of fee terms, please visit our page detailing how we get paid.

    The client is then given a copy of the engagement letter to review. We encourage the client to ask questions about the engagement letter, and also to seek the advice of independent counsel if they wish. When the client is comfortable with the terms of the engagement letter, he or she signs it and returns it to the firm. The firm will then keep the original and give a copy of the fully-executed agreement to the client for their records. Once the engagement letter is executed, the lawsuit can begin.

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    Phase Two: Pre-filing Efforts
  • After the attorney-client relationship is formalized by a signed engagement letter, the firm will engage in various forms of investigation to gather more specific information and documentation from the client. These efforts are intended to allow the firm to fully understand the facts of the case so that a Complaint can be prepared. A Complaint is the official document filed with a court that starts a lawsuit. There are legal requirements for what must be in a Complaint. The Complaint is not intended to be a document that contains all the evidence or even all the facts related to your case. Instead, the Complaint must contain only those "ultimate" facts that will allow the firm to later put on your case, and to put the other side on fair notice of the claims being made against them. Because the Complaint is the document that defines the scope of the lawsuit, it is an important document, and we will take our time to investigate your matter before drafting the Complaint, and more time to draft it.

    In some rare cases, there might be an attempt to settle that is made before a complaint is filed. If your case is one that might benefit from a pre-filing attempt to settle, we will discuss that with you. It has been our experience that pre-filing demand letters are met with disinterest, and give the other side the opportunity to sometimes better prepare for a lawsuit. Therefore, only where it appears it will benefit your case will we recommend that approach.

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    Phase Three: File and Serve the Complaint
  • Once the pre-filing process is complete, the Complaint is filed. Where the Complaint is filed is determined by many factors provided in the law. The firm will always try to file the case in the courthouse that would be most beneficial for the client's case, within the confines of the requirements of the law. This means that if it is more beneficial to file the case in Los Angeles Superior Court as opposed to Orange County, or Riverside, we will file in Los Angeles. The location of a trial can make a very big difference in the ultimate outcome of a case.

    To file a Complaint, a filing fee is charged by the court. The Complaint then must be personally served on all defendants. This involves finding each defendant and causing a process server to personally deliver the Complaint to the defendant. If the defendant avoids service, there are alternative mechanisms that can be used to serve a defendant. Until the Complaint is properly served, the lawsuit cannot proceed. Once the Complaint is served, the defendant is forced to respond or face dire consequences for failing to do so.

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    Phase Four: The "pleading phase"
  • The next phase in a usual lawsuit is what attorneys call the "pleading phase." This phase involves the defendant's response to the Complaint. There are several possible responses that a defendant can make, and which response or responses will dictate how long it will take to get out of the "pleading phase."

    Of the several kinds of responses a defendant can make to a Complaint, the most common are the Answer, the Demurrer, and the Motion to Strike.

    An Answer is simply the defendant's official response to the Complaint. It usually denies the allegations of the Complaint and then sets forth several "affirmative defenses" which are legal and factual arguments that the defendant may wish to use to defeat the plaintiff's case. Unless the defendant is successful in getting out of the case at the pleading phase, all defendants must eventually file an Answer. The Complaint and the Answer then define the scope of the legal and factual issues involved in the lawsuit. The only way to add or remove from that scope after the Complaint and Answer have been filed is to amend those documents. Once the Answer has been filed, the case can proceed to trial. A case cannot proceed to trial while it is still in the "pleading phase."

    Often, defendants will not immediately file an Answer, but instead will file what is called a "Demurrer." A Demurrer asks the court to decide whether some or all of the plaintiff's Complaint has been pleaded with legal sufficiency, i.e., has been drafted correctly. In a Demurrer, the defendant must assume all the facts stated in the Complaint are true, and in light of that assumption, the defendant argues that the Complaint fails to state a claim. In other words, "assuming what you say is true, that is not enough to state a legal claim against me." In concept, Demurrers are used to clarify pleadings and weed out clearly inapplicable or unsupportable claims. In reality, they are often used to create delay.

    A motion to strike is similar to a demurrer, but it relates to only specific parts of a complaint. In a motion to strike a defendant might seek to strike all requests for punitive damages, or for attorney fees, if there is a legal argument that the plaintiff is not entitled to those forms of relief. The result of a successful motion to strike is usually an order from the court striking certain words or paragraphs from a Complaint, and the lawsuit proceeds minus that content.

    Unless the Demurrer or Motion to Strike completely removes the defendant from the case, that defendant must ultimately file an Answer, and the pleading phase is concluded.

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    Phase Five: Discovery
  • "Discovery" is a term used to describe the process of gathering information about your case from others, and for the other side to do the same. Discovery in each case may look different from other cases, depending on the dynamics of the particular lawsuit. Discovery can take many forms, and there are many mechanisms available to a litigant. The Discovery process usually constitutes the most time-consuming part of a lawsuit prior to trial, and usually represents the second most expensive part of a lawsuit, short of trial preparation and trial itself.

    The Discovery process is often divided between "formal" discovery and "informal" discovery. "Formal" discovery is the process of using mechanisms provided for in the law to gather information. "Formal" discovery consists of things like interrogatories, depositions and requests for production of documents. Informal discovery is information gathering done outside the legally created processes for investigation. Informal discovery often consists of internet research, interviews with friendly witnesses, public records searches, as well as other investigations.

    Formal discovery requires both sides to participate with one another in good faith. However, it is here in the formal discovery process where attorneys have some of their biggest battles. Whether motivated by good faith or simply intent to delay and avoid obligations, attorneys will often object to discovery sent to them or provide only weak and inadequate responses. These disputes that arise force parties to try to work out the problem, but where the problem cannot be solved, attorneys must go to court to have a judge order compliance. These actions are usually in the form of

    Formal discovery is available to the litigants in state court until thirty days prior to the date first set for trial. After that date, discovery is usually cut off and no further discovery is allowed. Formal discovery in federal court is handled slightly differently, with deadlines usually set by the judge early in the case.

    One subset of formal discovery is what is known as "expert discovery." Experts can be used to assist the jury (or judge in some cases) understand things that are not in the normal understanding of persons related to issues presented. For instance, normal persons may not understand the prudence of using a certain kind of concrete for a parking surface, the standard of care to be exercised by a professional in a particular setting, or the real market value of a piece of property. Litigants are allowed to designate and use experts to bring their expertise into the courtroom to educate the trier of fact in these areas of specialization.

    Expert designation and discovery occurs in state court within seventy days of the date set for trial. In federal court, the judge will set a date for expert discovery to be completed. During expert discovery, either side can ask for a mutual exchange of expert information. If either side so requests, then both sides are required to simultaneously disclose to the other side the identity of the experts they intend to use at trial, and both sides are allowed to take the deposition of the other's experts.

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    Phase Six: Dispositive motions
  • Not every case has a "dispositive motion" phase. In this phase, one or both sides have the right to bring a motion seeking the end of all or part of the case before trial. Usually called a Motion for Summary Judgment, or Motion for Adjudication of Issues, these devices ask the court to enter judgment in favor of the moving party based on the papers presented. The court can do so only if it believes it can make the decision based on uncontroverted facts. In other words, a court can grant such a motion if there is no dispute in the facts related to the issue presented. If there is any dispute in the facts related to the issue or case that is the subject of such a motion, the court must deny the motion.

    As an example, if both parties agree that they signed an agreement, and that there is no dispute about the content of that agreement, and there is no dispute about the one party's lack of performance under that agreement, and finally there is no dispute about the damages caused by the breach of the agreement, then the court could grant a motion for summary judgment. However, if the parties disagree about any of the facts stated, the motion must be denied.

    Quite often defendants will bring a dispositive motion not because they think they can win it, but because it is a very effective way of making the plaintiff disclose critical aspects of its case, including its experts.

    If the motion is granted, then most or all of the case is ended. If the motion is denied, then the case proceeds on to trial.

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    Phase Seven: Trial preparation
  • A good law firm is preparing for trial from the outset of a case. However, formal trial preparation starts up in earnest in the last 30-60 days prior to the date first set for trial. Formal trial preparation involves pulling together all the documents, witnesses and arguments to make the trial of the matter run smoothly and effectively.

    Parties are required to work together to prepare joint witness and exhibit lists, along with other trial documents. Other preparations include: motions to exclude evidence at trial (also known as motions in limine), jury instructions, trial briefs, witness outlines, witness preparation, and demonstrative trial exhibits such as videotaped testimony and digital documents for effective presentation at trial. Subpoenas and notices are also sent out to ensure that all witnesses and original documents are in court for trial. Finally, the firm brainstorms issue narrowing and finalizes trial strategies.

    To put on a good trial, many hours outside the courtroom are necessary to present every hour of seamless, effective trial inside the courtroom.

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    Phase Eight: Settlement discussions
  • There are several times during a lawsuit where a settlement phase can occur, and in some cases, it can happen at more than one juncture. There are some commonly recognized times in a lawsuit when settlement is more likely to occur. Those times are at the outset, just prior to significant discovery becoming due, when a dispositive motion is pending, just prior to expert discovery, and "on the courthouse steps." At each of these stages, the parties may feel the pressures of litigation and associated costs, as well as the uncertainly of the outcome, and such pressures should be carefully considered when deciding whether to settle or proceed with costly and unpredictable litigation.

    Each case is different, and therefore it cannot be generally predicted if or when a settlement discussion phase would occur in any particular case. How a settlement discussion phase is commenced is also something best decided on a case-by-case basis. No one wants to communicate weakness in a lawsuit, and that general fear often keeps parties from talking. Nonetheless, there are times when raising the issue of settlement can and should be done without any suggestion of weakness, and the savvy litigator should seize those moments for the benefit of the client. Any prudent litigant should at least consider settlement if the risk associated with going forward is significant.

    Recently, there is a trend to try to settle lawsuits by use of a mediator. A mediator is a person trained to assist parties in settling their cases. Mediators do not have the power to decide any issue in the case. Mediators generally have training and experience in getting parties to see all the risks involved, and in finding solutions. Not all cases are right for mediation, and if a case is right for mediation, the proper time for a mediation needs to be determined based on the unique situation presented.

    Settlement is always within the exclusive control of the parties. You cannot be forced to settle. If you don't like the terms being offered, you can reject them. Settlement, however, is the only way you can control the outcome of the lawsuit. Without settlement, the case is resolved either by dispositive motion, or by trial. No matter how good your attorneys are or your case may appear, there is always uncertainty.

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    Phase Nine: Trial
  • Statistically, the vast majority of cases do not end up in trial. Even at a firm like ours, where attorneys love to try cases, the number of cases we actually try is small. This is because the parties are eventually able to clearly evaluate potential risks and outcome of trial, and they settle the case. However, it is our firm’s experience that cases do not settle on good terms if the other side does not believe you are ready, willing, and able to try the case.

    Also included in this phase is arbitration, for cases where the parties have agreed to have the matter decided by an arbitrator rather than a judge or jury. In either case, trial or arbitration, this phases is where the case is finally decided on the merits.

    The case is either tried to a judge or jury, with most cases having a right to jury trial if desired. The process includes calling witnesses, presenting exhibits, making legal arguments to the judge or jury, and in a jury trial, selecting a jury. Ultimately, the judge or jury decides the outcome of the case and a judgment is entered for the winning side.

    The judge sets a trial date several months prior to the event, and all parties work toward that date. In several Southern California courthouses, like LA and Orange Counties, trial occurs within a year or so of the date the matter is filed. In others, like Riverside County, a significant backlog keeps litigates out of court for many years.

    The attorneys must be prepared to try the case on the date set by the court. However, in reality, cases rarely go to trial on the date first set for trial. The case will often “trail” for several days, weeks, or sometimes months. Cases may also be reassigned to a different judge than the one who handled the case to that point because he or she is not available. Nonetheless, it would be reckless for any attorney not to be prepared to try the case on the first day set for trial, because when the judge asks, you want your attorney to state with confidence that he or she is “ready for trial.”

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    Phase Ten: Post-trial activities
  • Although trial is when the matter is decided, it is often not the final say. After trial, both sides have actions they can take to affect the final outcome. The losing party can, in certain circumstances, ask the court to change its mind, or replace the jury's decision with the judge's decision. These motions, known as motions for new trial and motions for judgment notwithstanding the verdict, can be common in larger matters, and are done not only to actually get the judge to change the outcome, but also to secure certain procedural rights on appeal.

    Not all cases would include these post-trial activities, although the right to proceed with them exists in all civil litigation.

    The winning party also has post-trial functions. In addition to defending the losing party's motions, the prevailing party needs to procure costs, and possibly attorney fees, both usually done after the trial is complete.

    Assuming a motion for new trial is not granted (a rare occurrence) the judgment is entered. Once the Notice of Entry of Judgment is provided to the losing party, the time to bring an appeal commences.

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    Phase Eleven: Appeal
  • Any lawsuit prosecuted in California Superior Court can be appealed to the California Court of Appeal. However, the "right" to appeal is tempered with the requirement that there must be valid grounds for such action. A clearly frivolous appeal can result in adverse consequences for the appellant.

    An appeal is not another chance to re-argue the case. An appeal has a limited scope of inquiry. The appellate court will never re-weigh conflicting evidence and decide the case differently on that basis. Where there has been a factual dispute with evidence on both sides, the appellate court will uphold the result.

    A common basis for appeal is the argument that the court made a legal error; that is, the judge used the wrong legal standard, instructed the jury incorrectly, or made an incorrect legal determination with regard to evidentiary objections or the like. Even if you are able to prove to the appellate court that there was an error, the result is not changed unless the appellate court also determines that without the error the result would have been different.

    Statistics vary, but in general, it should be expected that no more than around 20% of all cases that are appealed result in a changed outcome. An appeal is an uphill battle. Without effective representation on appeal, the chances of success are even less.

    An appeal is handled very differently from trial. Generally, no new evidence or legal argument can be introduced that was not introduced at trial. The appeal starts with the filing of a Notice of Appeal, which must be filed within strict deadlines, or the matter is forever lost. The appealing party must designate "the record" consisting of all the documents in the Superior Court file that the party believes will be needed for appellate court review, along with any Reporters' Transcripts of important hearings or trial in the matter.

    Once the record on appeal is compiled, which can take a significant period of time as it requires work by very busy Superior Court personnel and Court Reporters, a briefing schedule is set. Appellant gets an Opening Brief. The other side, the "Respondent," gets a Respondent's Brief. The Appellant has the option of filing a Reply Brief. The matter is then set for oral argument by the appellate court.

    Appellate court oral argument is relatively short - the longest possible time available is 30 minutes per side, but often is it far less than that. Three justices hear oral argument, which is often interrupted by questions from the bench. After oral argument is completed, an opinion is usually issued within 90 days. The opinion is always a written discussion of the issues. Sometimes they are designated to be a published decision, meaning it goes forever into the law books to be used as reference for all other persons. More often, the opinion is designated "Not for Publication" meaning it cannot be used by others.

    The party that loses on appeal has the right to ask the California Supreme Court to hear the case. However, the Supreme Court is not required to take the case. Unless certain circumstances exist, the Supreme Court will not take the case, and the matter will be over, unless the appellate court ordered more proceedings at the trial court.

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    Phase Twelve: Collection
  • Collection is often the most important part of a lawsuit. It is at the collection phase the money changes hands. If the case settled, collection proceeded by agreement. If the case ended by dispositive motion or trial, then collection often still proceeds by agreement. However, in other cases, the losing party must be forced to let go of the money, and formal collection efforts are required to find and collect money from the losing party.

    The law gives successful litigants several tools to effect collection of a judgment, including Abstracts of Judgment, Writs of Execution and Judgment Debtor Exams.

    Abstracts of Judgment can be recorded in all counties in which the judgment debtor owns or may own property. This effectively prevents the judgment debtor from selling or refinancing property in those counties without dealing with the judgment creditor. The Abstract of Judgment can stay on the books for ten years, renewed for another ten, effectively keeping the judgment debtor \"on the hook\" for twenty years.

    Writs of Execution are used to seize the judgment debtor’s property, be it real property, money in the bank, or even receivables. One effective tool is the “keeper” who is physically located at a place of business and takes all receipts that come into the company until the judgment is paid in full, plus expenses. A Writ of Execution can also be used to garnish wages and force-sell real property.

    The Judgment Debtor exam is essentially discovery for the judgment creditor. It is like a deposition where the focus of the inquiry is what is owned by the debtor and where it is.

    Because of these highly effective methods for collection, unless the losing party has no money or assets, or the losing party has effectively hidden assets, most losing parties settle without the need for collection efforts.

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