Details of Litigation

Phases of litigation

Most California Civil Litigation has six (6) phases: (1) pleading; (2) discovery; (3) expert discovery; (4) alternative dispute resolution; (5) trial; and (6) post-trial.

Pleading- Setting the Allegations, Denials and Defenses

Pleading is where the plaintiff, the party seeking the remedy, drafts and files, meaning the court accepts. Then the plaintiff needs to serve the summons and complaint, meaning personally give it to each defendant. Note, someone who is not a party to the case must do so.

Within five (5) days after service, a responsive pleading is due. The general responsive pleadings are either (1) an Answer, denying the allegations and raising defenses, or (2) a Demurrer, alleging that the complaint legally fails, and the defendant is entitled to win this case.

Discovery - Exchanging Testimony and Documents to be used at Trial

Once the pleadings are set, the case moves to discovery phases. The discovery phase is the longest period of time and during discovery the parties have the right to ask and receive written answers to written those written questions. The answers must be verified, meaning sworn as true under the penalty of perjury. Also, a party is entitled to depose a party once, up to seven hours on the clock. A deposition is an oral question and answer recorded by an official reporter where the answers are given under oath.

IMPORTANT POINTS IN DISCOVERY

An opposing party has the right to a face to face in person deposition at the location of their choosing, including their own office - it is really a waste of time to fight face to face deposition, except in Unlawful Detainer, also known as Eviction, where trial might proceed, in which case, it may be better to accede to a demand for remote, with reservation of rights.

It is the client’s duty to provide answers and documents when asked. I cannot tell you how many times a client has pointed to their phone at trial contesting something an opposing party testified and pointed to a document that that client did not give me in discovery. If you have a document, give it to your attorney.

Courts hate to be involved in discover. Defendants generally evade discovery with impunity, and Plaintiffs as a practical matter are subject to much stricter standards, because plaintiffs have the burden of proving the case.

Expert Discovery

Expert discovery is when the experts who may testify at trial exchange their qualifications, the nature of what they will testify about, the facts upon which they base their opinions, and their opinions. Experts are expensive and each party must not only pay their own expert witness, but, they must pay the opposing party’s expert witness to depose him or her.

Alternative Dispute Resolution

Alternative Dispute Resolution otherwise known as ADR is a process before trial to attempt to resolve the case before trial commences. The two most common forms of ADR are mediation and Mandatory Settlement Conference (”MSC”).

Mediation is a hypothetically voluntary process where at least two opposing parties meet to attempt to resolve a dispute, with the help of a theoretically neutral third party. While generally, mediation is advisable, if only to avoid being subject to the Court’s wrath for refusing, mediation is not what it purports to be. The mediator is rarely neutral. If the mediator were truly neutral, the mediator would admit that sometimes an adversarial process is necessary to prevail, settling almost by definition means taking less, and there is dignity even in loss by not giving up to a party who wronged you initially. If a mediator cannot admit these self-evident truths, they are by definition not neutral.

In any case, mediation is often not even voluntary, because some counties order it, under threat of monetary sanctions.

Why even bother with mediation? Mostly, because the judicial system is unfair and generally designed to shortchange a plaintiff and mediation is the court’s way of communicating those facts, without taking the blame for that fact. It has been said that if a party fails to mediate, the judge will discriminate against that party in trial, possibly influencing a negative outcome.

MSC is similar, but even more blatantly a strong-arm attempt to force the parties not to bother the Court with a trial. Unlike mediation, MSC is not confidential, and the MSC officer is obligated to write a report to the judge. You would be naive to think that failure to heed the MSC Officer in MSC would not result in discrimination at trial.

IMPORTANT POINTS IN ADR

Judges and mediators often urge parties to take their case into their own hands and consider settlement instead of trial. This is for both cynical and good reasons.

Cynically, mediators and judges are not neutral and have a vested interest in avoiding trial.

The good reason is that the overwhelming majority of people, including jurors and judges think that the status quo is what should be, and therefore plaintiffs, who are seeking to change the status quo, must overcome tremendous odds to win. That generally means that plaintiffs get far less than the “value,” of their claims.

Trial

Trial is when evidence is admitted for the fact finder, frequently the jury, but sometimes the judge, to consider, and for the Court to make rulings of law.

The first day of trial is generally a misnomer, and it is generally a “calendar call.” When the Court asks of the parties are present and ready. Then, depending on the Court’s needs, the case is either assigned to a trial judge, or not.

Once assigned to a trial judge, there can be many questions of law. The most prominent are arguments on motions in limine, or requests to limit evidence. Other times, one or both parties challenge the pleadings at this stage.

Eventually, in a jury trial, the jury is selected, empaneled, read instructions, opening arguments begin, and the plaintiff calls the first witness. The questions must be open ended and not leading. Documents and other tangible things may be admitted, if the witness authenticates them, meaning testifies as to elements necessary for the Court to be satisfied as to genuineness. The opposing side gets to cross. After all the plaintiff’s witnesses are heard, then the defendant may move for a directed verdict, and if not granted, the defense has the opportunity to have its defense in chief heard.

Then there are closing arguments. The jury deliberates and answers questions presented to them on jury verdict forms. Based on those answers, the jury renders verdicts as to defenses and claims. The Court receives the verdict, and then crafts arguments to justify rulings at law and make a judgment.

Post-trial

After trial can consume significant time, if the Court is forced to consider matters, issue a judgment, or issue a Statement of Decision.

In general, either party can notice an appeal, generally within 30 days or 60 days of the judgment, and failure to do so prevents appeal, forever.

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