General Litigation



Lawsuits follow fairly consistent, broad procedures.  Understanding the procedure, or process, is key to feeling comfortable about what's happening and what's likely to happen next.  The steps in most disputes are as follows:



1. a summons and complaint are prepared by the plaintiff, filed with the court and copies are served on the defendant;


2. generally, the defendant has 30 days to prepare, file with the court and  serve an answer to the complaint


3. alternatively, and prior to filing an answer, the defendant may file a demurrer to the complaint, alleging the complaint is technically deficient and the case should be dismissed or, more likely, the complaint should be re-written more precisely; if a demurrer is denied, the court orders the defendant to file an answer within so many days, usually 15 or 20 days; if granted, the court usually grants the plaintiff time to amend the complaint in accordance with the court's order


4. Unless dismissed, the defendant must eventually answer and may file  a cross-complaint against the plaintiff at the same time


5. Discovery typically begins shortly after the answer is filed.  Discovery is tedious, time-consuming and, thus, expensive.  Nevertheless, it is the policy in California that discovery be used: to gather facts concerning the case; in order to narrow the issues by such fact gathering; which thereby facilitates trial and, perhaps, settle-ment by enabling each side and their attorneys to better evaluate their case against the other party.


            There are several principal forms of discovery:


            INTERROGATORIES  written questions requiring complete, written answers;


            ADMISSIONS       written questions requiring written yes or no answers;


            PRODUCTION       written demand for documents about the case;


            DEPOSITION       oral examination of a person by an attorney.



 6. Throughout the process, there are several status conferences between the judge and each party's attorneys.  The purpose of such conferences is for the judge to determine if there is a chance for settlement and, alternatively, to make sure that all parties are diligently pursuing discovery so as to be prepared for trial when the time for trial is at hand.


 7. Similarly, throughout the pre-trial process, there are usually various motions made to the court.  A motion - a demurrer is a motion for example - is a written request of the court for an order to be imposed on the other party.  The other party typically submits a written opposition to the motion.  A hearing is scheduled before the judge who decides whether to grant or deny the motion.  Often, the court's ruling is available a day in advance of the hearing; these are called tentative rulings.  Almost always the "tentative" is the final decision but the party which has been denied its request by the tentative ruling is always allowed to be heard by the court at the time scheduled for the hearing.  The court cannot disallow a party the opportunity to be heard; each party is allowed its "day in court".


 8. The trial is the final step in the process.  It's format is deceptively simple.  The plaintiff's lawyer makes an opening statement; the defendant's layer makes an opening statement.  The plaintiff then begins to present witnesses and evidence.  In lawyer talk, it's known as putting on the "case in chief".  The defendant's lawyer then makes his defense by presenting the testimony of defense witnesses and other evidence introduced for the court to weigh and balance.  Each side makes a closing statement and the case then goes to the judge or jury for decision.  Simple as that.

Read Glossay Terms...