Stages of Litigation

Complaint. A lawsuit usually starts with the filing of a complaint in either state or federal court. The complaint must then be served on each of the defendants named in the complaint. Once the complaint is served, the defendants will need to respond to the complaint. A complaint can be either “verified” (signed by the plaintiff under penalty of perjury) or unverified.

Answer or Response to a Complaint. A defendant may either answer the complaint denying all or pat of the Complaint or challenge its legal sufficiency by way of various court challenges called “motions.” A defendant may also file a cross-complaint or counter-claim suing the plaintiff or other third parties. If a defendant or cross-defendant challenges the complaint, there may be a lengthy process by which the court hears motions challenging the complaint and it is re-written or “amended” several times. A claim that cannot be properly framed in a complaint can be thrown out of court during this process. If the complaint is dismissed “with prejudice” it cannot be brought again. If it is dismissed “without prejudice” it may be possible to re-file the action at a later time provided the statute of limitations has not yet run.

Discovery. Discovery is the process by which evidence is gathered. There are many different forms of discovery. There are a number of different forms of written discovery such as interrogatories (written questions that are submitted by one party to another), requests for admissions (written requests that a party admit various facts or the authenticity of various documents), demands for production (demands that the other party produce documents or other materials for the other side to review or examine), and subpoenas (demands for documents or other materials submitted to a third person who is not a party to the lawsuit). Another form of discovery is the deposition by which a person must testify under oath in response to questions posed by the attorney for one or more of the litigants. Experts must also be determined and their reports shared among the parties. Discovery can often be lengthy and expensive, particularly if one or more sides decide to be uncooperative. If a court or outside referee is brought into discovery disputes, it can prove to be quite expensive for all the parties involved.

Status Hearings. From time to time a trial judge will schedule court appearances to assess the status of a case. Most of the time it is not necessary for clients to attend these hearings. At a “Case Management Conference” the judge will discuss various issues relating to the case such as discovery and scheduling and whether the case lends itself to Alternative Dispute Resolution. At a “Trial Setting Conference” the court will set the trial date and various other pretrial dates.

Pretrial Motions. A motion is a request made to the court for some sort of relief or ruling. There are many types of pretrial motions, some of which fall into several categories. There are “dispositive motions” which try to settle or remove claims prior to trial. Examples of “dispositive motions” are summary judgment motions, demurrers, and motions to strike. There are also “discovery motions” which are motions arising from discovery disputes. There are also motions for “provisional remedies” which are motions which seek some sort of temporary relief pending trial. Examples of provisional remedies are temporary restraining orders, injunctions, writs of possession, and writs of attachment to name a few. Motions can also be brought in special circumstances such as motions relating to arbitration, motions regulating counsel, or motions regarding scheduling.

Pretrial Preparation. In order to prepare for trial attorneys must make sure they have gathered sufficient evidence to support their case, plan the order in which evidence will be presented at trial, schedule witnesses, consult with experts and prepare briefs. If the case is going to be tried in front of a jury, jury instructions must be prepared as well as evidentiary motions relating to what evidence the jury may and may not hear. These motions are called “in limine motions.” In addition to proposed jury instructions, attorneys need to submit to the court lists of witnesses, lists of exhibits that will be presented at trial, and briefs on legal issues that may arise at trial.

Trial. Trials can be either before a judge (a “Court Trial”) or a jury. Trials themselves have a number of phases. Before the trial the judge will usually meet with the attorneys to discuss evidentiary issues, the order of trial and various other issues the attorneys anticipate. Sometimes courts will “bifurcate” a trial into separate phases in order to save time. For example, a court may decide it wants to hear evidence regarding liability before it hears evidence regarding damage. A jury trial begins with jury selection which is called “voir dire.” Sometimes the potential jurors will hear a “mini opening statement” prior to voir dire but this is a voluntary procedure to which both sides must agree. The next phase of the trial is the “opening statement.” The plaintiff’s attorney will present their statement first followed by the defendant’s attorney. Because the plaintiff bears the “burden of proof” in a case, they are given the opportunity to present their evidence and witnesses first. Once the plaintiff has presented their evidence the defendant will present their evidence and witnesses. In some cases, the plaintiff may offer “rebuttal” testimony and witnesses but rebuttal is limited to issues raised by the defense. After all the evidence is presented, a closing argument is made which ties together the parties’ theories and the evidence. In court trials a judge may request that closing argument be made in brief format. In a court trial, the judge may take the case “under submission” and provide a ruling by mail. In a jury trial a verdict must be reached by nine of the twelve jurors.

Post Trial Motions. Even after trial there are a number of motions that may be brought. Motions for attorney fees in some cases, requests for new trials, and other motions that form the basis for appeal are often heard following a trial.

We have had an excellent litigation success record in a large variety of cases. We have litigated business disputes, real estate cases, and equine law matters in Orange County, Los Angeles County, Riverside County, San Diego County, San Bernardino County and throughout the state of California.