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The Life Cycle of a Civil Lawsuit – Part Two

What is Our Judge Doing?

Although the assigned judge is not attending depositions or participating directly in the discovery proceedings, she is still very interested in the case.  The court will typically hold a case management conference (CMC) about 90 days after the complaint is filed.  The CMC is held to ensure that the case remains on track and to allow the court to make certain orders regarding future handling of the case.    At the first CMC, the court will typically assign the case to mediation in the hope it will resolve.  The attorneys will be ordered to return for another CMC if the case doesn’t settle at mediation.  If the parties are unwilling to mediate, the court may set a trial date.  Either way, the parties, or at least their attorneys, will probably see the judge again.

Mediation (or now You Have to Pay Another Lawyer to Try to Settle Your Suit)

So the case has been assigned to mediation.  You’ll generally be given two options:  judicial (free) mediation or private (paid) mediation.  Each has its benefits and drawbacks.  Judicial mediation has the obvious benefit of being free.  On the downside, the parties are generally given only two hours of free mediation time and have less ability to select the mediator or the time and place of mediation.

Private mediation is conducted with an attorney-mediator and has the benefit of additional flexibility in selection of the mediator, as well as the time and place of mediation.  The downside of paid mediation is that it is, well, paid for by the parties.  Mediators typically charge approximately $300 per hour for their services.  The good news is that these hourly charges are generally shared by the parties.

Whether it is judicial or private mediation, the proceedings will remain entirely confidential.  The mediator will report to the court but will report only whether the case has settled.  The mediator cannot, for example, report to the court that one side or the other was unreasonable in settlement position.  Furthermore, nothing said by the parties at mediation can be used against them in the case.

Trying to Summarize Summary Judgment

An effort that is frequently made to have a case decided by the judge before it gets to trial is through the motion for summary judgment.  The title is misleading to the extent it is a procedure that takes months from start to finish and generally consumes reams of paper in the process.  This motion is typically filed after all discovery has been completed and one side thinks the other will not be able to establish its case and that it is entitled to judgment as a matter of law.

Summary judgment motions are based on undisputed facts generally taken from deposition testimony, interrogatory answers, documents produced in discovery, and declarations under oath.  If the court agrees that the facts are truly undisputed and establish a plaintiff’s claim, the lack of merit in a plaintiff’s claim, or a complete defense to a claim, the court will grant judgment in the moving party’s favor, eliminating the need for trial.  To complicate matters further, the court may grant summary adjudication, disposing of less than all of the claims.

Conclusion

Although this summary does not reflect the course followed by every civil case, it lays out the most frequently deployed procedures.  If this did not already seem overwhelming, remember that all of this has only gotten you to the eve of trial.  If your case is one of the few that actually gets to trial, you can still look forward to exhibit preparation, witness preparation, pre-trial motions, jury selection, opening statements, direct examination, cross-examination, sidebars, motions for nonsuit, closing arguments, jury deliberations, and a jury verdict.  We will deal with all of that another day and head off for a nap now.

Michael M. McMahon

mmcmahon@carnaclaw.com