I run a litigation practice. Many of my clients are well versed in what it means to engage in a lawsuit. This blog post is not intended for them because they have already learned about litigation through personal experience. But for folks who may be new to the process, read on . . .
When I was 12 years old or so I went to a basketball clinic put on by John Wooden, the great UCLA coach, an all time wise man and the author of the Pyramid of Success (see http://www.coachwooden.com/pyramidpdf.pdf.) Success rests on a strong foundation, so Coach Wooden started at the basics: He taught us how to put our socks on. Exciting? Not very. Important? Definitely.
If you are thinking about filing a lawsuit or if you have found yourself in a dispute that looks like it is headed to court, you are thinking about litigation. Best to learn now to “put your socks on” and familiarize yourself with some of the litigation basics. (Disclaimer: Every case is different, and there are many, many variations to what I describe below, but these are the basic stages of litigation in almost every case.)
Litigation begins with the filing in court of a complaint or sometimes a petition. (I will refer in this blog to this initial document as a “complaint.”) The complaint describes the dispute and identifies the persons involved. It also requests some form of relief, such as monetary damages, a determination of property rights, a court order that prohibits or allows some act or behavior, attorney’s fees, and/or reimbursement for the costs of the lawsuit.
Once the complaint is filed, the court issues a summons, which is a document that names all the defendants in the complaint. It informs them that they are being sued in a particular court, identifies the plaintiff, and tells them they have a specified number of days to respond to the complaint.
The summons and complaint must be served on all of the defendants. There are a number of ways to do this but service of process is usually accomplished by delivering these documents (and others) personally to each defendant. This can be quite challenging if a defendant is evading service.
Once this initial service is completed, the defendant who was served has “x” number of days to file a response in court. Typically in a civil lawsuit in California this is 30 days, but it can be a shorter period, for example, five days in an eviction proceeding, or 20 days in a federal court case. A failure to respond will lead to a default, which means that the defendant can no longer dispute the allegations stated in the complaint; and the defendant loses the case.
The defendant’s first response can take one of several forms. The defendant can answer the complaint, which in California state court will usually be a general denial of the all the complaint’s allegations.
The response can also challenge the complaint in an effort to get the entire lawsuit thrown out of court right away or instead to limit some aspect of the complaint. In state court this motion is called a demurrer and/or a motion to strike, while in federal court it is called a “motion to dismiss.” A demurrer or motion to strike is known as the “so what” motion: the moving party asserts that even if everything claimed in the complaint were true, the facts still would not amount to a valid basis for some or all aspects of the lawsuit.
If the court grants the motion, the case is over or at least it is reduced in scope. However, it is very rare to get a case completely thrown out of court at such an early stage in the litigation.
Assuming that the case moves forward, the next step is “discovery,” the term used for gathering the facts of the case. Discovery includes depositions, written questions, and document production. Discovery is the meat and potatoes of any case, and can take several months. My first boss, lawyer Henry Fenton, told me 24 years ago that the longer he practiced law, the more he realized the whole case was won or lost on the facts. Henry was right.
Once discovery is completed, either side may file a motion for summary judgment or a motion for summary adjudication (an “MSJ” or “MSA”). An MSJ seeks an outright win for the moving party, while the MSA seeks an order limiting some aspect of the case. The motion asks the court to make rulings on the “material undisputed facts” of the case. Because most cases have many disputed facts – that’s why they are in litigation – neither MSJs or MSAs are granted very often; when they are, the case is either completely or partly over. Thus, MSJ and MSA practice is a very important stage of the case.
Assuming that the case survives MSJ/MSA and moves forward, a trial will be set. In most cases with significant monetary damages at stake, before trial the parties will engage in expert witness discovery, the goal of which is to find out exactly what expert opinions the opposing party intends to offer at trial. The testimony of expert witnesses can be crucial in many cases. Because the experts must be paid, and because it takes very skilled lawyers to deal with expert discovery, it is frequently quite costly.
Pre-trial is conducted at the same time as expert witness discovery. Pre-trial includes all the last minute work required to get the case ready to be presented at trial, including writing briefs, compiling and organizing trial exhibits, corralling witnesses, preparing and serving subpoenas, coordinating schedules with the court and opposing counsel, and outlining and rehearsing the oral presentation. This is a lot of work and this usually quite costly, but “preparation equalizes” and there is no substitute for thorough preparation.
Next, trial! You probably have a good idea of this stage of litigation. In broad strokes, trial is where the parties put on their cases, make their arguments, and ask the jury or judge to decide in their favor. Trial can be quite dramatic but it also includes many moments of mundane process and dull testimony. If you are well prepared and have a good lawyer, the trial should contain few surprises, but any experienced lawyer will tell you that predicting who will win and who will lose at trial is hard, to say the least.
At the end of the trial, the court issues a judgment for the winning party. Following the entry of judgment, one or both parties might file post-trial motions in an effort to reverse or change the result or to obtain a new trial based on alleged mistakes by the court or the parties or due to intervening changes in the law. Other post-trial motions include requests for payment of attorney’s fees and reimbursement of the costs incurred by the prevailing party. The same court that conducted the trial usually considers these motions.
Once the post-trial motions are concluded, and if the judgment is for money, the winning party has the right to collect on that judgment in a process that is called “enforcement.” Enforcement is where the rubber meets the road because winning a judgment does not mean much if it cannot be collected. (My separate blog post focusing on Collections and Judgment Enforcement details the process.) Typical enforcement methods include recording liens on the defendant’s real and personal property, wage garnishment, and bank levy.
Also, post-judgment, a party can appeal. (An appeal can also be taken before judgment in certain circumstances.) An appeal is filed with a separate court from the one where the trial occurred. In California state appellate courts, a three-justice panel of judges hears and decides the appeal.
Appeals focus on “prejudicial error” committed during the litigation process. Errors may have been made by the trial court in allowing or excluding evidence to be considered by the jury. The court’s application of the law, or intervening changes in the law, or improper conduct by counsel or the parties may also be grounds for an appeal. Appeals carry the potential for completely reversing or drastically changing the trial court result. The issues on appeal are normally complicated and the appellate court – as are all the courts – is understaffed and overburdened, so things move slowly.
An appeal can be quite costly because it requires a complete review and evaluation of the entire litigation. In addition, the drafting of an appellate brief requires precision, clarity, and persuasive advocacy. All of this takes time and a high degree of skill.
Finally, a word about settlement. A settlement can occur at any stage of a case and is often the best result for all concerned. A settlement provides a certain result in an uncertain process and frequently is the most cost-effective way to conclude the dispute. True, many cases cannot be settled early in the litigation for any number of reasons - missing facts, high emotion, unreasonable demands, an unexpected ruling from the court – but the litigation process tends to wear down the parties’ resistance over time and nearly all civil cases are settled before trial. Mediation – a settlement meeting with an umpire called a "mediator," who is skilled at dispute resolution – often gets good settlement results.
Winston Churchill said, “Democracy is the worst form of government except for all those others that have been tried.” The same can be said of the litigation process. It can be a mess. It is hard, costly, and painful, and it usually takes far too long. And sometimes it is unfair. But it is better than all other dispute resolution systems that have been tried.
Please send me note with any questions or comments.
When I was 12 years old or so I went to a basketball clinic put on by John Wooden, the great UCLA coach, an all time wise man and the author of the Pyramid of Success (see http://www.coachwooden.com/pyramidpdf.pdf.) Success rests on a strong foundation, so Coach Wooden started at the basics: He taught us how to put our socks on. Exciting? Not very. Important? Definitely.
If you are thinking about filing a lawsuit or if you have found yourself in a dispute that looks like it is headed to court, you are thinking about litigation. Best to learn now to “put your socks on” and familiarize yourself with some of the litigation basics. (Disclaimer: Every case is different, and there are many, many variations to what I describe below, but these are the basic stages of litigation in almost every case.)
Litigation begins with the filing in court of a complaint or sometimes a petition. (I will refer in this blog to this initial document as a “complaint.”) The complaint describes the dispute and identifies the persons involved. It also requests some form of relief, such as monetary damages, a determination of property rights, a court order that prohibits or allows some act or behavior, attorney’s fees, and/or reimbursement for the costs of the lawsuit.
Once the complaint is filed, the court issues a summons, which is a document that names all the defendants in the complaint. It informs them that they are being sued in a particular court, identifies the plaintiff, and tells them they have a specified number of days to respond to the complaint.
The summons and complaint must be served on all of the defendants. There are a number of ways to do this but service of process is usually accomplished by delivering these documents (and others) personally to each defendant. This can be quite challenging if a defendant is evading service.
Once this initial service is completed, the defendant who was served has “x” number of days to file a response in court. Typically in a civil lawsuit in California this is 30 days, but it can be a shorter period, for example, five days in an eviction proceeding, or 20 days in a federal court case. A failure to respond will lead to a default, which means that the defendant can no longer dispute the allegations stated in the complaint; and the defendant loses the case.
The defendant’s first response can take one of several forms. The defendant can answer the complaint, which in California state court will usually be a general denial of the all the complaint’s allegations.
The response can also challenge the complaint in an effort to get the entire lawsuit thrown out of court right away or instead to limit some aspect of the complaint. In state court this motion is called a demurrer and/or a motion to strike, while in federal court it is called a “motion to dismiss.” A demurrer or motion to strike is known as the “so what” motion: the moving party asserts that even if everything claimed in the complaint were true, the facts still would not amount to a valid basis for some or all aspects of the lawsuit.
If the court grants the motion, the case is over or at least it is reduced in scope. However, it is very rare to get a case completely thrown out of court at such an early stage in the litigation.
Assuming that the case moves forward, the next step is “discovery,” the term used for gathering the facts of the case. Discovery includes depositions, written questions, and document production. Discovery is the meat and potatoes of any case, and can take several months. My first boss, lawyer Henry Fenton, told me 24 years ago that the longer he practiced law, the more he realized the whole case was won or lost on the facts. Henry was right.
Once discovery is completed, either side may file a motion for summary judgment or a motion for summary adjudication (an “MSJ” or “MSA”). An MSJ seeks an outright win for the moving party, while the MSA seeks an order limiting some aspect of the case. The motion asks the court to make rulings on the “material undisputed facts” of the case. Because most cases have many disputed facts – that’s why they are in litigation – neither MSJs or MSAs are granted very often; when they are, the case is either completely or partly over. Thus, MSJ and MSA practice is a very important stage of the case.
Assuming that the case survives MSJ/MSA and moves forward, a trial will be set. In most cases with significant monetary damages at stake, before trial the parties will engage in expert witness discovery, the goal of which is to find out exactly what expert opinions the opposing party intends to offer at trial. The testimony of expert witnesses can be crucial in many cases. Because the experts must be paid, and because it takes very skilled lawyers to deal with expert discovery, it is frequently quite costly.
Pre-trial is conducted at the same time as expert witness discovery. Pre-trial includes all the last minute work required to get the case ready to be presented at trial, including writing briefs, compiling and organizing trial exhibits, corralling witnesses, preparing and serving subpoenas, coordinating schedules with the court and opposing counsel, and outlining and rehearsing the oral presentation. This is a lot of work and this usually quite costly, but “preparation equalizes” and there is no substitute for thorough preparation.
Next, trial! You probably have a good idea of this stage of litigation. In broad strokes, trial is where the parties put on their cases, make their arguments, and ask the jury or judge to decide in their favor. Trial can be quite dramatic but it also includes many moments of mundane process and dull testimony. If you are well prepared and have a good lawyer, the trial should contain few surprises, but any experienced lawyer will tell you that predicting who will win and who will lose at trial is hard, to say the least.
At the end of the trial, the court issues a judgment for the winning party. Following the entry of judgment, one or both parties might file post-trial motions in an effort to reverse or change the result or to obtain a new trial based on alleged mistakes by the court or the parties or due to intervening changes in the law. Other post-trial motions include requests for payment of attorney’s fees and reimbursement of the costs incurred by the prevailing party. The same court that conducted the trial usually considers these motions.
Once the post-trial motions are concluded, and if the judgment is for money, the winning party has the right to collect on that judgment in a process that is called “enforcement.” Enforcement is where the rubber meets the road because winning a judgment does not mean much if it cannot be collected. (My separate blog post focusing on Collections and Judgment Enforcement details the process.) Typical enforcement methods include recording liens on the defendant’s real and personal property, wage garnishment, and bank levy.
Also, post-judgment, a party can appeal. (An appeal can also be taken before judgment in certain circumstances.) An appeal is filed with a separate court from the one where the trial occurred. In California state appellate courts, a three-justice panel of judges hears and decides the appeal.
Appeals focus on “prejudicial error” committed during the litigation process. Errors may have been made by the trial court in allowing or excluding evidence to be considered by the jury. The court’s application of the law, or intervening changes in the law, or improper conduct by counsel or the parties may also be grounds for an appeal. Appeals carry the potential for completely reversing or drastically changing the trial court result. The issues on appeal are normally complicated and the appellate court – as are all the courts – is understaffed and overburdened, so things move slowly.
An appeal can be quite costly because it requires a complete review and evaluation of the entire litigation. In addition, the drafting of an appellate brief requires precision, clarity, and persuasive advocacy. All of this takes time and a high degree of skill.
Finally, a word about settlement. A settlement can occur at any stage of a case and is often the best result for all concerned. A settlement provides a certain result in an uncertain process and frequently is the most cost-effective way to conclude the dispute. True, many cases cannot be settled early in the litigation for any number of reasons - missing facts, high emotion, unreasonable demands, an unexpected ruling from the court – but the litigation process tends to wear down the parties’ resistance over time and nearly all civil cases are settled before trial. Mediation – a settlement meeting with an umpire called a "mediator," who is skilled at dispute resolution – often gets good settlement results.
Winston Churchill said, “Democracy is the worst form of government except for all those others that have been tried.” The same can be said of the litigation process. It can be a mess. It is hard, costly, and painful, and it usually takes far too long. And sometimes it is unfair. But it is better than all other dispute resolution systems that have been tried.
Please send me note with any questions or comments.
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