Civil Litigation

Disclaimer

Below you will find some general information about contracts and litigation in California State courts. Different states have different laws regarding contracts as well as different court procedures. This page contains only a basic, general discussion of contracts and litigation. There are multi-volume treatises on the subjects. The standard contracts class in law school is a year long as is a course on civil procedure. Law schools also offer additional classes in specific forms of contracts or where contracts arise including sales of goods, negotiable instruments, secured transactions with respect to the sale of goods, real property law, real property secured transactions, securities law, intellectual property law, and international law. There are also advanced courses of study on state civil procedure, the rules of evidence, and trial techniques.

This general information may not apply to you, and it is not intended as a legal opinion or legal advice.

Civil Litigation

Litigation means going to court. Court is actually a process that ends in a trial. The trial is similar to what you see on television or on film: witnesses testify, documents are presented, objections are made, and lawyers argue about what it all means. Unlike television and movies, there are many steps, procedures and deadlines which must be met to get a case to trial. Failures along the way can damage or even destroy a case.

The first recommendation about going to court is to try to avoid it if possible. Settlement is faster, more certain, and less expensive than going to court. Not all cases are ready for or possible to settle without some court involvement. This may be for a variety of reasons including access to evidence, one side needing a reality check, one party being worn down either financially or from the general distraction from the business or other affairs. Other cases must be tried because of a fundamental or insurmountable dispute, to test a law, or even to change the law. In addition, parties may need access to the courts to freeze assets, obtain the return of collateral, or for injunctive relief to prevent the spread of information or continued use of unfair business practices.

Court cases begin with a complaint which sets forth the plaintiff's legal theories for what the plaintiff (the party initiating the case) wants.

There are time limits for filing court cases. The failure to take appropriate legal action within the time limits provided by law will lead to the loss of rights and even prevent a party from having the case heard in court or settled. These time limits depend on the legal theories involved, and they can be difficult to calculate.

After filing, the complaint, summons, and other papers must be served on the defendant or responding party. The defendant has a limited amount of time to file an answer with the court. The answer is a legal document which must be in a particular form. A letter will not suffice. A case may be lost or damaged by a poorly drafted answer. The answer is also an opportunity for the defendant to respond the complaint and list its affirmative defenses or new matters which, if proven, may provide a partial or full defense to the case. In addition a defendant may file its own complaint back against the plaintiff or bring in new parties to the case. This is called a cross-complaint, and it must be served and responded to just like a complaint.

If a defendant is properly served but fails to file an answer on time they may be put into default. A party who defaults is barred from participating in the court case, and a judgment may be obtained against them without the opportunity to present their side of the case. Defaults and default judgments may be removed or set aside, but there is a limited amount of time and a limited basis for doing so. Ignoring a court case is a very dangerous thing to do.

Shortly after the complaint is filed, the parties have the right to engage in discovery. This means they may use court procedures to obtain information and evidence from each other, as well as from third parties. They may, for example, ask opposing parties written questions, ask for copies of documents, ask that factual or legal statements be admitted or denied, question witnesses, and/or inspect real evidence or properties. Cases are won and lost during the discovery process because it represents an opportunity to obtain evidence which may be necessary to prove a case or a defense. Failing to comply with discovery may lead to monetary fines or even the dismissal of a case.

Courts usually require the parties to a case to use some form of alternative dispute resolution, i.e. an alternative to a trial. The two most common forms are arbitration and mediation. Arbitration is similar to a trial in that the parties present evidence, and a neutral decision maker decides who is right, who is wrong, and what the damages are. Mediation is much less formal. It is up to the participants to decide how they wish to proceed. A neutral party facilitates communications between the parties but does not impose a decision. It is up to the parties to reach their own agreement which makes sense for them. The resolution may not even involve the law or the strict parameters of the lawsuit. In order to foster communications and encourage resolutions, mediations are confidential.

If the case is still not resolved at this point it will be set for trial. Discovery will wrap up. The parties may engage in expert witness discovery to find out if each party will use experts, and, if so, they will have an opportunity to examine the experts as to their opinions and the basis for the opinion. Evidence is gathered and organized. Witnesses are lined up to testify.

There will be a mandatory settlement conference shortly before the trial, perhaps a week or less. If the case does not settle at that point it will proceed to trial.

Either side has the right to a jury trial. A jury is composed of twelve members of the community who do not know the parties, the lawyers or the facts of the case. They hear the evidence and decide what happened, whether someone is lying, etc. The judge decides what law controls the case and instructs the jury in the law, and the jury applies the law to the facts of the case.

If both sides waive a jury the case will proceed as a court trial. That means the judge assigned to the case decides the facts and the law. Court trials are more streamlined than jury cases, and in business cases it is common for the parties to waive juries.

At the beginning of the trial the plaintiff gives an opening statement to tell the judge or jury what the case is about. It is something of an introduction to who will be involved and a preview of the plaintiff's evidence. The defense can give an opening statement after the plaintiff completes their opening statement or wait until just before the defense presents their side of the case.

The plaintiff then presents their witnesses and evidence. Live testimony is critical because statements made outside of court are generally not admissible in evidence. This is the hearsay objection you may have heard on television or in a movie. Because of this rule you generally need live witnesses to prove what happened and to have documents admitted into evidence. You can use the power of the court to force people to come to court to testify. An unwilling witness, however, may also damage your case.

Each side's witnesses are subject to cross-examination by the opposition. This is a familiar situation where the other side has the opportunity to ask their hard questions of a witness to try to discredit them, show their memory is poor, elicit bias, etc.

If the plaintiff fails to prove their case it may be dismissed. Assuming the plaintiff proves their basic case, it then becomes the defense's turn to present their witnesses and evidence.

Both sides will also have the opportunity to bring in rebuttal witnesses.

Finally each side gives a closing argument in which they review what was proven or not proven, what it means, and why the judge or jury should find for their side.

After deliberations a verdict is made in favor of one side and against the other. The winning side is awarded a judgment, usually in the form of X must pay Y so much money. Unless it is paid voluntarily, the winner will have to take steps to enforce the judgment and force the other side to pay.

Generally each side bears their own attorneys' fees unless there is a contract or a law that gives the winning party attorneys fees in the lawsuit. The winner of the case is generally entitled to some of their out-of-pocket court costs. So if the plaintiff loses the plaintiff may owe defendant money for the defendant's court costs.