The lucky reader has never been involved in a civil lawsuit. However, a suit, whether as plaintiff or defendant, is certainly a possibility for every reader. Suddenly an automobile accident happens and you end up the plaintiff or defendant in a personal injury lawsuit. You start a business with a longtime friend, things turn sour, and you find yourself in the position of suing your now-former friend and business partner. Although a few hearty souls seem to thrive on the adversarial nature of civil litigation, most parties find sooner or later see the wisdom of Abe Lincoln’s advice to avoid litigation. If you haven’t been there before, what should you expect? With a few possible detours most lawsuits follow a similar path from start to finish.
In the Beginning: the Pleadings
Civil lawsuits begin with the filing of a complaint laying out factual allegations, legal causes of action, and a prayer for relief. The complaint will identify the plaintiff and defendant and any other necessary parties to the lawsuit. The complaint will be assigned a number by the court clerk and will generally be assigned to one judge to handle from beginning to end. With the filing of a complaint, the court clerk will also generally issue a summons under seal of court. The summons is used to notify the defendants of the lawsuit and to obtain jurisdiction over the defendant. It is generally delivered to the defendant along with a copy of the complaint. This is known as service of process.
So, you are the unlucky defendant who has now been served with a complaint. What do you do and when do you do it? As the summons will tell you, a defendant generally has 30 days to respond to the complaint. In civil cases, the response can consist of one or more of the following: 1) an answer to the complaint; 2) a demurrer challenging the legal sufficiency of the complaint’s allegations; 3) a motion to strike certain portions of the complaint; or 4) a motion challenging jurisdiction or venue. These are not the only available responses but those most typically asserted.
In some cases, a defendant might succeed in having a case dismissed before being required to file an answer. In most cases, however, the defendant must answer the complaint sooner or later. In the answer, the defendant will admit or deny allegations and raise affirmative defenses. The defenses are “new” matter that the defendant will bear the burden of proving. They may include defenses like the running of the statute of limitations.
At the same time an answer is filed, a defendant will frequently file a cross-complaint. The cross-complaint may name the original plaintiff as a cross-defendant, may bring in new parties, or both. For example, in the business dispute with the former friend, the former friend may cross-complain alleging you breached duties you owed her. Or the defendant may bring in another business partner alleging that he was the cause of the plaintiff’s alleged damages.
Discovery: Not the Cable Channel
After the dust surrounding the pleadings has settled, the parties generally begin discovery, a process of formally exchanging information that may ultimately end up as evidence in the case. Discovery serves more than one purpose. First, it allows the parties to obtain the evidence they will need for trial if the case progress that far. Perhaps more importantly, it allows each side to see the strengths and weaknesses of the other side’s case. This is significant because it frequently leads to meaningful settlement discussions.
In California, discovery consists of “written” discovery and depositions. The most frequently used forms of written discovery are: 1) interrogatories (written questions); 2) requests for production and inspection of documents, other things, and places; 3) requests for admission of facts or the genuineness of documents. Written discovery is frequently sent in “waves” with initial discovery and follow-up discovery.
Generally after engaging in written discovery, the parties will begin deposition discovery. A deposition is a question and answer session completed before a certified court reporter who administers the oath to tell the truth at the beginning of the deposition. All questions, answers, and objections are taken down by the court reporter and subsequently placed in a transcript format. Deposition testimony can be used in connection with motions and also at trial. Witnesses are frequently impeached at trial when trial testimony varies from deposition testimony.
MIchael M. McMahon firstname.lastname@example.org