Glossary of Litigation

Summary: Civil Litigation is complex and uses a lot of technical jargon. However, if you are a Party to a lawsuit, you would do well to understand the nuances of what the words mean. This is an in-development, alphabetic order glossary intended to define the most common litigation terms in a practical manner.

998 Offer to Compromise: A 998 Offer to Compromise is an offer to settle the lawsuit that meets the requirement of Code of Civil Procedure section

998⁠

. The purposes of a 998 Offer are first to get the other side to settle the case, but second, to shift the risk in continuing litigation by not accepting the offer. Code of Civil Procedure section

998⁠

says that if a 998 offer is not accepted, and the final [adjusted] judgment is lower than the 998 Offer, then the party that made the higher 998 Offer is the Prevailing Party. The Prevailing Party can be awarded its costs that accrued after the date of the 998 Offer. The Prevailing Party cannot be forced to pay the losing party’s costs accrued after the date the 998 Offer was served. Importantly, if the 998 Offer expressly states that the amount offered includes amounts for attorney fees, the case reaches judgment, and the value of the [adjusted] judgment does not exceed the value of the 998 Offer, then the party that made the 998 Offer is relieved from paying the opponent’s attorney fees.

Answer: An Answer is a responsive pleading and a document that meets certain criteria and fulfills the defendant’s obligation to respond to the complaint within thirty (30) days of being served with process. Generally, and Answer comprises a general denial [Code of Civil Procedure section

431.30⁠

(b)(1)], and then a list of Affirmative Defenses, which are technically new matter. [Code of Civil Procedure section

431.30⁠

(b)(2)]. Defenses must be put at issue when filed, or they are waived.

Attorney Fees: Attorney Fees refers to the reasonable value of the attorney services of the Prevailing Party as determined after verdict by the Court. Attorney Fees are amounts that the Court can award to the Prevailing Party in addition to damages or any other award. The authority for awarding attorney fees is either by agreement, under the authority of Civil Code section

1717⁠

, by specific statute, or by Code of Civil Procedure section

1021.5⁠

for the enforcement of an important right,

Complaint: A complaint is a pleading and a document that meets certain criteria and initiates the lawsuit when the civil plaintiff “files” it. The Complaint comprises of a caption page, with the name of the person filing it, the names of the parties, and a title, like complaint for damages, then a series of “allegations” and “prayers” for remedies. In California the allegations generally take the form of a short initial narrative, key mandatory allegations, such as a legal description of the parties, a statement of why the court has subject matter “jurisdiction,” meaning power to hear the case, and why the “venue,” meaning the court location, is correct. Then the complaint has a list of “causes of action,” a cause of action is a group of three to seven sentences that are essentially legal conclusions, and when phrased and combined together put a defendant on notice of a plaintiff’s claim to seek a remedy for some underlying substantive acts or omissions.

Costs: Costs when referring to Litigation are the money that must be spent, excluding fees to attorneys, to litigate. Common costs include fees that must be paid to the Court; fees that must be paid to legal service providers who enable filing documents with the court, who personally serve documents, and perform other litigation services like acting as a deposition subpoena officer; fees that must be paid to companies that provide Court Reporting services; fees that must be paid to experts. Depending on the nature of the case and any requirement for expert testimony, costs can easily be between $15,000 and exceed $40,000 for even very simple cases.

Default: Default means that the Court stamps an application for Default officially accepting that Default, marking the register of actions that the defendant has not responded to the complaint within the required time limit, and in theory preventing the defendant from participating in the litigation anymore. Note a Default is NOT a Default Judgment. A Default Judgment can happen after or under some circumstances simultaneous with a Default and means that the Court has made a final determination in the case, based on the Defendant failing to appear and respond timely.

Defendant: A defendant is a party to the litigation, generally, the person or entity who did not start the lawsuit and is the person or entity that the plaintiff seeks a remedy from. However, if the defendant makes a “cross” claim, meaning the defendant responds to the plaintiff’s allegations by seeking a remedy, as well, then the defendant also becomes the “cross plaintiff.”

Deposition: Deposition is an oral question and answer session that is part of discovery that can be required to take place in person. It is recorded by a reporter, and later a verbatim transcript is issued. The answers are given under oath to tell the truth, subject to the penalty of perjury.

Demurrer: A Demurrer is a pleading, specifically, and objection to a pleading that challenges the legal sufficiency of a Complaint or an Answer. A Demurrer can be filed and allow leave to amend [file a corrected pleading], or without leave to amend, meaning the offending pleading cannot be cured. Generally, a defendant must file a demurrer within 30 days of service of the Complaint, and a plaintiff must file a demurrer within 10 days of service of the Answer.

Discovery: Discovery is the official process where the parties formally exchange evidence that may be admitted at trial. The main tools of discovery are written discovery, deposition and inspections. Written discovery includes interrogatories, meaning questions calling for written explanations, requests for admissions, meaning questions that require the responding party to admit, deny or state an inability to admit or deny, and demand for documents. Inspection can be an inspection of a property, or even a bodily inspection if at issue. Deposition is an oral question and answer session that can be required to take place in person.

File: File, when used as a verb in litigation, means that the Court accepts the paperwork, almost always by stamping the papers at the top right indicating acceptance, including date, time and the clerk. Do not conflate file, with serve, which means to deliver the papers in an authorized manner.

Judgment: Judgment is a piece of paper that disposes of the case and may order one or multiple parties to do or not do something, including, possibly pay money. Except in specific and rare circumstances, a judgment is final and, possibly, appealable. Note, in Civil Litigation, the Court will issue a Proposed Judgment to both sides and may change that Proposed Judgment upon objection or based on the results of motions and hearings on Costs and Attorney Fees.

Litigation: The adversarial process of two parties engaging in the formal dispute process to determine a “winner,” by order, decree, or judgment of the Court. Generally, falls into the category of “civil,” meaning not criminal and initiated by a plaintiff seeking a remedy from a “defendant” or criminal, in which a government entity seeks a conviction of a person accused of violating a criminal law.

Party: A person or entity who is under the authority of the Court in a litigation. Generally, a party is seeking to prevail in litigation.

Plaintiff: A plaintiff is a party to the litigation, generally, the person or entity who started the lawsuit and is seeking a remedy. However, if the defendant makes a “cross” claim, meaning the defendant responds to the plaintiff’s allegations by seeking a remedy, as well, then the plaintiff also becomes the “cross defendant.”

Prevailing Party: The Prevailing Party is determined by the Court after verdict is reached. The Prevailing Party is the party who achieved their litigation objective. The Prevailing Party can seek their costs from the Losing Party and sometimes can seek the reasonable value of attorney fees.

Serve: Loosely, to serve means to deliver papers or files to someone. There are several types of service, personal service, means place the papers in the hand or near the feet of the person being served while informing them of the nature of the papers. Mail service means sending the papers by U.S. mail. E-service usually means emailing the person the papers. A notice from a landlord to a tenant can be by posting and mailing. In order for a Court to obtain power over a defendant, Process, or the Summons and Complaint must be personally served by someone who is not a party to the lawsuit.

Verdict: Verdict is the result of a civil litigation on liability when reached by a jury. A verdict is binary, meaning either one or another, as to a cause of action, liable or not liable.

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