Orange County Civil Litigation & Appeals Lawyer
Introduction to Civil Litigation
If a dispute arises and informal attempts at resolution fail, the most
common method used to resolve disputes and enforce one’s rights
is through lawsuits and the court system. If the amount at issue is below
a certain dollar figure, the parties may be able to use "small claims"
court to resolve the issue. However, courts and formal lawsuits are not
the only option for people and businesses involved in disputes. The parties
can agree to have a mediator resolve a dispute, or may agree to binding
arbitration of a dispute. These out-of-court options are two methods of
"alternative dispute resolution."
Whether you are suing someone or being sued, or being called as a witness,
a lawsuit is a complicated legal process, and it can be full of unpleasant
surprises and frustrating delays. There are at least two parties to every
action, and that means the schedule and the events which take place can
be out of your hands. Nonetheless, some things happen in the same order
in most litigation, and you can at least get a general idea of what's
likely to happen. It will also help to know some of the words and phrases
that come up in a lawsuit.
Civil Litigation Attorney in Southern California
A civil action, begins with a Complaint, usually accompanied by a Summons.
A Complaint is a legal document that lays out the claims that the Plaintiff
(the person or business bringing the lawsuit) has against the Defendant
(the person or business being sued). Typically, a lawyer will prepare
Summons and Complaint
A civil action is officially commenced in one of two ways. In some states
and in federal court, filing the Summons and Complaint with the court
commences the action. Typically, serving the Summons and Complaint on
the other party commences the action. The Defendant then has to answer
or respond to the Complaint within a certain time. The Answer says what
portions of the Complaint, if any, the defendant admits to, what the Defendant
contests, what defenses the Defendant may have, and whether the Defendant
has claims against the Plaintiff or any other party.
If the Defendant does not respond to the Complaint, the court may enter
a default judgment against the Defendant. If the Answer contains a counterclaim
or a third-party complaint, the party against whom that claim is made
also has to answer within a certain time.
The parties exchange documents and other information about the issues relevant
to the litigation, by a process called Discovery. Discovery can take three
forms: written questions (usually Interrogatories) which must be answered
under oath; document production; and depositions, which are formally transcribed
and sworn statements taken in front of a court reporter or other court
officer. The information is used in preparing the case for trial.
In many cases, one or both of the parties will try to dispose of the case,
or a portion of it, by motion. Basically, the parties present to the court
those issues that are not in dispute, either because the parties agree
as to the facts, or because application of the law to the facts dictates
a result. This is a hard concept for lay people. The theory is that, if
a claim or lawsuit cannot possibly win, it is better for the judge to
deal with it before wasting time or money. Unfortunately, motion practice
can be lengthy and expensive.
If the parties do not reach an agreement, and if the matter is not disposed
of by motion, the case will go to trial. In most civil cases, either party
can choose to have a jury. The decision of whether or not to request a
jury is an extremely important one, and seeking the advice of an attorney
is highly recommended. At trial, the attorneys (or the parties, if they
are not represented) present evidence and arguments for each side, and
the judge or jury decides the unresolved issues. Once the judge or jury
has reached a decision, the judge will order that Judgment be entered
for the party who wins. The judge may also order that one party pay the
other's attorneys' fees, although such awards are unusual.
Either or both parties can appeal a judge's decision to a higher court.
However, it is unusual for an appeals court to overturn a judge's decision.
Alternative Dispute Resolution
Sometimes, the parties can voluntarily resolve all their issues through
alternate dispute resolution such as mediation or a negotiated settlement.
The parties can also agree to binding arbitration, and some contracts
require binding arbitration. If a settlement is reached, the settlement
agreement resolves all issues between the parties. Typically, the court
is either not involved or is involved only informally. Judicial approval
of civil settlements is usually only required when one of the parties
is a minor, or when there is a class action, or in other special circumstances
that do not typically arise in most litigation.