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Litigation: Complaints, Answers, Discovery, Trials, and Judgments

I am asked on a daily basis by potential clients, "how does a lawsuit work?"  As I begin to explain the dry, meticulous, and laboring process...I am typically abruptly cut off with the next question, "how long does all that take?"  In typical lawyerly fashion, my response is, "it depends."

Knowing full well that the conversation described above is met with mild frustration and definite confusion from potential clients, I will try to describe below the GENERAL civil litigation process in California state court (*please note: federal court procedure is much different and is not covered in this article; criminal court procedure is much different and is not covered in this article).

FIRST STEP: INITIAL CONSULTATION/POTENTIAL EFFORTS FOR INFORMAL RESOLUTION

The attorney sits down with the client to determine the factual background of the claims of the client or the client's defense to a claim advanced by another.  The initial meeting is essential and should take place at the earliest opportunity as valuable rights may be lost by delay.  During and after the meeting, the attorney will review the documents relevant to the matter, research the applicable law and begin to identify the available next-step options.

If deemed worthwhile, the attorney may draft a demand letter to the potential defendant or the defendant's attorney, or if defending a claim, make an informal telephone call to the claimant or claimant's attorney advancing the claim.  This step is usually taken if the client has a strong desire to resolve the claim short of litigation and it is decided that such resolution appears possible.

SECOND STEP: FILING COMPLAINT (LAWSUIT)/FILING RESPONSIVE PLEADING (ANSWER)

The filing of the Complaint with the County Superior Court initiates a lawsuit.  After that Complaint is served on the defendant, the defendant typically has 30 days to "respond."  In most situations, that response will be in the form of an Answer (the defendant also has the right to advance a more aggressive attack on the allegations within the Complaint--typically a Demurrer or Motion to Strike).

THIRD STEP: DISCOVERY

After the defendant has filed its Answer, the case is "at issue" and the litigation process continues.  At this point, discovery ensues.  The discovery process allows for both sides to investigate the case, as well as force the other side to provide supporting evidence for the claims and/or defenses asserted.  Discovery can be in written form (typically requests for production of documents, written interrogatories, and requests for admissions, subpoenas to third parties).  Discovery also includes the compulsion of oral testimony in a deposition.  Depositions are utilized for parties to the lawsuit, as well as key witnesses and expert witnesses.

FOURTH STEP: TRIAL

A trial may be in front of a jury or a judge and can vary in length depending upon the number of witnesses, number of parties and complexity of the case.  The plaintiff has the burden of proof.  The plaintiff's case goes first.  The defendant then has the opportunity to respond to the plaintiff's case with witnesses and evidence to support the defense.  The plaintiff then has the an opportunity to put on a rebuttal case to counter the evidence offered by the defendant and, on occasion, a defendant may offer a sur-rebuttal to reply to the evidence presented by the plaintiff.

The jury or judge, after deliberation, returns a verdict.  That verdict, typically a finding that a party is liable or not liable based on the causes of action asserted by plaintiff. In addition, if the defendant is found liable, the jury or judge is required to include an amount of monetary damages attributed to the defendant's extent of liability.  The finding of liability and the amount of damages is memorialized in a Judgment.

FIFTH STEP: POST-TRIAL MATTERS

After a judgment is issued, parties may appeal or file post-trial motions to vacate or amend the judgment.

In addition, the plaintiff who now possesses a judgment against the defendant must now "collect" on the judgment.  A judgment may state that a defendant has a legal obligation to pay plaintiff $100,000.  However, our civil judicial system does not incarcerate defendants until they pay off their judgments. We have no "debtor prisons." Therefore, the plaintiff must take steps to collect on the judgment.  Such collection efforts can include, but are not limited to, wage garnishment, real property liens, writ of execution, bank account levy and debtor's examinations.  For more information on enforcement and collection of California judgments, read Griswold Law's recent article on the topic: Enforcement and Collection of California Money Judgments.

For additional information on litigation in general, or if you have a claim or have been sued in a business or real estate matter, please contact Richardson "Red" Griswold of Griswold Law.

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