LAWSUIT INFORMATION

Many people I meet want to know what are the steps, the costs, and the time, involved in a lawsuit.  This is a brief overview.

The first step in a lawsuit is to file a Complaint.  In California, the Complaint has to meet certain requirements to assure the Court that a sufficient action has been brought before it.  These requirements can become somewhat technical, and often requires careful drafting.

In some circumstances, certain requirements must be met even before a Complaint can be filed.  For example, a lawsuit against a government entity first requires sending them a notice of a claim, a rejection by the government entity of that claim, and then filing the Complaint within a set time after such a rejection.

Next, the Complaint has to be served on the named Defendants.  Usually a process server is used since the parties themselves cannot serve the Complaint.  The preferred method is personal service, which usually means to deliver the Summons and the Complaint to the Defendants in person.  Where such personal service is not possible, the law allows alternative methods of service, but strict observance of legal requirements for such alternative methods must be followed.  Once service is completed, a proof of service must be filed with the Court.

Once the Defendant has been served with the Complaint, they usually have 30 days to file an Answer to the Complaint.  The Defendant has the option to file some other responsive pleading.  For example, they can file a Demurrer or a Motion to Strike.   This kind of response attacks the sufficiency of the Complaint.  This kind of attack tends to be highly technical, and the Courts usually give the Plaintiff another chance to cure any technical mistakes they made in drafting the Complaint.

Once the Complaint and Answer have been filed with the Court, a process called Discovery usually begins.  The general idea of Discovery is to let each side obtain all the information they need from each other, so that there will be no surprises at the trial.  The hope is that by making such information available to both sides, it will encourage settlement of the lawsuit.

There are several types of Discovery authorized by California law.  The parties may send written questions to each other called Interrogatories.  They may send a request to view documents held by the other party.  Most importantly, they may require each other to answer live questions posed by attorneys in what is called a Deposition.  They can also view the business records of others who are not involved in the lawsuit, and take their deposition as well.

In most lawsuits, the Court requires judicial arbitration once discovery has been completed.  Such arbitration is, in effect, a mini-trial.  Evidence is presented to an attorney appointed to act as the arbitrator.  It is non-binding, and either side can request a trial following the decision.  The purpose is to help both sides reach a settlement before trial.

Before trial, either side can bring a motion for summary judgment.  Basically this is a request for the Court to rule for one party without a trial.  To win such a motion, you have to show that given the undisputed facts of the case, the law compels that you win the case.  If the Court finds that the facts are in dispute with regard to the relevant legal issues, it will send the case to a trial.

At trial, you have a right to have a jury decide the case.  However, both parties often allow a judge to decide the case to speed up the process.  Most Courts usually require that a trial brief be prepared before the trial, and that jury fees be posted, unless a judge is allowed to decide the case.  A jury trial can take anywhere from 2 days to 5 or more days, depending on how many witnesses are called and documents introduced.  A trial by a judge usually takes 1 or 2 days.  At the end of the trial, a decision is made and a judgment entered.

To take a case all the way through trial will usually cost both sides on average around $40,000 each for attorney fees and costs.   Such costs provide a strong incentive to settle cases before trial, and more than 90 percent of cases settle before a trial begins.  In California, it usually takes about 2 years on average for a case to get to trial.  Even if your attorney takes your case on a contingency fee basis, he has to calculate such costs in evaluating your case.

A judgment does not necessarily end the lawsuit since either side can appeal the decision.   An appeal will usually take another year or two to resolve the case, and cost each side about another $10,000 to $20,000.  An appeal is not a new trial.  The appeal court does not accept new testimony or other evidence.  It simply reviews the evidence presented at the trial court to determine whether the trial court judge committed an error of law.  The appeal courts do not reweigh the evidence at trial.  Instead, they accept the findings of fact made at the trial court.

Even if you obtain a judgment against another party after a trial, you then have to take certain steps to collect, which is called enforcement of the judgment.   This involves following certain technical steps, which involves more time, effort, and attorney fees.

Many people seek to initiate a lawsuit without understanding the time, costs, and uncertainty involved.  Learning about the process after undertaking it can be a frustrating experience.  It usually is beneficial to become familiar with the process before undertaking litigation to come to a realistic view of what can be expected.

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