The legal papers that are filed in court at the beginning of a lawsuit are called "pleadings." Our attorneys can explain pleadings to you in the particular context of your case, but the summary that follows will give you a head start in understanding some of the many documents that may become a part of your lawsuit.

What is a Summons/Service of Process?

The Summons is an order from the court where the lawsuit will be heard or "litigated." It notifies the recipient (the "defendant" in the case) that he or she has been sued, refers to the Complaint or Petition, and sets out the time limit within which the defendant must file an answer or seek to have the case dismissed. It will also describe the consequences of failing to respond in a timely manner: the case may be decided without the defendant and he or she may be bound by the result even if they did not participate. Failing to respond to a lawsuit on time will cause a defendant to be "in default."

The Summons is usually a form document. It will have a preprinted caption that contains the name of the court, the names of the parties and a docket number (the court's identification number for the matter). The body of the document will tell the defendant that he or she has been sued. This language is called the "Notice." The Summons will be delivered or "served" on the defendant along with the Complaint, either when somebody actually confirms his or her identity and gives them the documents, or when they are mailed to the defendant. The legal term for this is "service of process." The Summons, properly served, gives the court power or "jurisdiction" over the case and over the defendant. That means the court may make decisions about the controversy described in the Complaint, and decisions affecting the defendant with respect to the controversy.

What is a Complaint?

The Complaint is a document that identifies the parties involved, sets out the legal basis for the court's jurisdiction over the controversy, states the plaintiff's legal claims, and relates the facts giving rise to the claims. The Complaint will also contain a section called a demand for judgment or prayer for relief. Here the plaintiff will set forth what he or she wants the court to require the defendant to do, such as pay damages.

The purpose of the Complaint is to provide the defendant with notice of the factual and legal bases of the plaintiff's claims. Generally, the facts set forth in the Complaint are based on the plaintiff's own knowledge. Sometimes the plaintiff will use the phrase, "upon information and belief" before setting forth some facts. This means that the plaintiff has heard about those facts from someone else, or has formed the belief that the events described in the paragraph happened as described. The Complaint is required to set forth a short and plain statement of the plaintiff's claims, so don't be surprised if the facts are sketchy, or if they don't seem to tell the whole story.

What is an Answer?

The defendant's response to the Complaint is called an Answer. The Answer will address each paragraph in the Complaint, and each response will ordinarily take one of three forms: "admitted," "denied," "insufficient knowledge to admit or deny." An answer may also set forth various affirmative defenses, which are legal reasons why the defendant should not be held liable for the plaintiff's damages. Some of these defenses may also be the basis of a motion to dismiss.

What is a Cross-complaint?

If a defendant has his or her own claim against the plaintiff, one which arose out of the same circumstances as those that led to the Complaint, it should be raised in a "Cross-complaint." The Cross-complaint will be written in a manner similar to the Complaint. In the Cross-complaint, the original defendant is called the "cross-complainant," and the original plaintiff the "cross-defendant." The cross-defendant responds to the Cross-complaint in the same manner as a defendant, with an Answer.

What is a Cross-claim?

Cross-claims arise when there are many parties to the lawsuit and two or more, who are "aligned" as plaintiffs or as defendants, have their own dispute arising out of the transaction or occurrence. For example, if Driver B and Driver C are sued by Driver A after a multiple-vehicle accident, and Driver C was actually injured by something Driver B did, Driver C might file a cross-claim against Driver B, within the same lawsuit.

What is a Third-party Complaint?

Sometimes a defendant who has been sued will have a legal reason for passing liability off to another person. A common example is a contract in which the third party promises to pay if you the defendant is found liable in a case. This person may be brought into the lawsuit if the defendant files a Third-party Complaint. Like the regular Complaint, it will set forth the relevant facts giving rise to the defendant's claim against the third party, and will set forth a request for relief.

What is discovery?

A hallmark of the American legal system is the principle that there should be as few surprises as possible in the course of a lawsuit. Since the late 1940's, the federal court system has required disclosure of all relevant facts and documents to the other side prior to trial, and virtually every state has followed its lead. That disclosure is accomplished through a methodical process called "discovery." Discovery takes three basic forms: written discovery, document production and depositions.

What are interrogatories and requests for admission?

Interrogatories are questions requiring your version of the facts and of your claims. They can be pre-printed "form" interrogatories, or specific questions asked just for your case called "special" interrogatories. Questions can range from the broad ("What happened on April 26, 2004?") to the specific ("Is it your position that the defendant was wearing sunglasses at 2:30 p.m. on April 26, 2004?"). If the questions asked are not fair questions or are difficult to understand, our attorneys can help you decide what you should object to.

Requests for admission are not often used, but can be a very powerful tool. They ask a party to admit or deny certain facts pertaining to the case, and they carry with them penalties for not answering, for answering falsely, or even answering late.

What is document production?

Document production is fairly self-explanatory. Any party has a right to see most documents that even arguably relate to a case. Particularly in more complex medical malpractice or product defect cases, the documents involved can be voluminous. Increasingly, courts are allowing access to computer files as part of document discovery. In cases where enough is at stake to justify it, courts have even allowed litigants to reconstruct deleted files (like e-mail), although that practice has not yet become general.

What are depositions?

Depositions are sworn statements, when a person will answer questions from an attorney, and a court reporter will make a transcript of all that is said. Depositions can range in length from an hour to a week or more. Although all attorneys have their own strategies for depositions, there are basically three reasons to do them: to lock people into their stories, to see what the other side has, and to do a "practice trial," that is, to see how a witness will appear and conduct themselves before a judge or jury.

Our attorneys can tell you how to conduct yourself if you are deposed, but there are two general things to remember. First, never guess. The purpose of a deposition is to give facts, not to speculate as to what might have happened. Even if it makes you self-conscious to say it, sometimes "I don't know" is the right answer. Second, it is human nature to want to explain things so that your listener understands, but you should resist the impulse. It is your opponent's job to get the answers. It is your job to answer only the question asked, not to offer additional information.

Things to Remember About Discovery

Keep in mind that it is very likely that anything and everything will come out at some point in the discovery process.

It is imperative that you be honest with your attorney about the facts and documents that may come out. He or she can't do the best job if you don't disclose everything.

Discovery can be lengthy, expensive, intrusive, and frustrating. Whether you want to have your life opened to that kind of scrutiny should play a role in your decision whether or not to start a lawsuit.

Be honest. Nothing will make you lose a case quicker than lying in discovery and getting caught, and it is likely that you will get caught if you are purposefully dishonest.

How does settlement work?

The majority of legal claims arising from accidents or injuries do not reach a civil court trial -- most are resolved earlier through a negotiated settlement among the parties. An informal settlement can even take place before any lawsuit is filed. Through settlement, the plaintiff in a personal injury case agrees to give up the right to pursue any further legal action in connection with the accident or injury, in exchange for the payment of an agreed-upon sum of money from the defendant or an insurance company. In rare cases, instead of paying money the defendant will agree to perform (or cease performing) a certain action.

If you are considering settling a legal claim after an accident or injury, or if you have received a settlement offer, you should talk to an attorney and receive his or her thorough assessment of the case and the prospects for settlement.

Consider the following points:

Amount he or she thinks the case is worth in a range of dollar amounts.
Verdicts and settlements in similar cases.
Chances of winning at trial.
Unfavorable publicity for either side (civil court trials are open to the public and media scrutiny).
Amount of personal information that could be revealed at trial or through further discovery.
Possible disclosure of business information or trade secrets.
When the case is likely to be called for trial.
Practical difficulties in trying the case.
Weaknesses in your evidence.
Weaknesses in your opponent's evidence.
The amount of the defendant's insurance coverage.
The defendant's own monetary resources.
The defendant's lawyer's negotiation tactics (your lawyer may have negotiated with the lawyer before, or has talked to other lawyers to get an idea of what to expect).
The extent to which your opponent is likely to play "hardball."
If you are the plaintiff, ask how much of the settlement proceeds will be applied to your lawyer's fee and your expenses.
If you are the plaintiff, ask how the settlement payments will affect your federal and state income taxes.
Talk about what you're willing to concede in order to get the case settled.
Discuss the minimum amount you will accept.
Consider the possibility of a partial settlement, that is, settling the easy issues first while you continue to negotiate the more contentious issues.
If you are the plaintiff, consider accepting a remedy other than money.

What happens at trial?

In a personal injury trial, a judge or jury examines the evidence to decide whether, by a "preponderance of the evidence," the defendant should be held legally responsible for the injuries and harm alleged by the plaintiff. A trial is the plaintiff's opportunity to argue his or her case, in the hope of obtaining a judgment against the defendant. A trial also represents the defendant's chance to refute the plaintiff's case, and to offer his or her own evidence related to the dispute at issue. After both sides have presented their arguments, the judge or jury considers whether to find the defendant liable for the plaintiff's claimed injuries, and if so, to what extent (i.e. the amount of money damages a defendant must pay).

(Note: Although a trial is the most high-profile phase of the personal injury lawsuit process, the vast majority of personal injury disputes are resolved well before trial -- and in some cases before a lawsuit is even filed—via settlement between the parties, alternative dispute resolution (ADR) processes like arbitration and mediation, or through dismissal of the case.)

A complete personal injury trial typically consists of six main phases, each of which is described in more detail below:

Choosing a Jury
Opening Statements
Witness Testimony and Cross-Examination
Closing Arguments
Jury Instruction
Jury Deliberation and Verdict

How is a jury chosen?

Except in cases that are tried only before a judge, one of the first steps in any personal injury trial is selection of a jury. During jury selection, the judge (and usually the plaintiff and the defendant through their respective attorneys) will question a pool of potential jurors generally and as to matters pertaining to the particular case -- including personal ideological predispositions or life experiences that may pertain to the case. The judge can excuse potential jurors at this stage, based on their responses to questioning.

Also at this stage, both the plaintiff and the defendant may exclude a certain number of jurors through use of "peremptory challenges" and challenges "for cause." A peremptory challenge can be used to exclude a juror for any reason (even gender and ethnicity in civil cases), and a challenge for cause can be used to exclude a juror who has shown that he or she cannot be truly objective in deciding the case.

What are opening statements?

Once a jury is selected, the first "dialogue" in a personal injury trial comes in the form of two opening statements—one from the plaintiff's attorney, and the other from an attorney representing the defendant. No witnesses testify at this stage, and no physical evidence is ordinarily utilized.

Because the plaintiff must demonstrate the defendant's legal liability for the plaintiff's injuries, the plaintiff's opening statement is usually given first, and is often more detailed than that of the defendant. In some cases, the defendant may wait until the conclusion of the plaintiff's main case before making its own opening statement.

Regardless of when opening statements are made by either side in a personal injury case, during those statements:

The plaintiff presents the facts of the accident or injury and the defendant's alleged role in causing the plaintiff's damages—basically walking the jury through what the plaintiff intends to demonstrate in order to get a civil judgment against the defendant.
The defendant's attorney gives the jury the defense's own interpretation of the facts, and sets the stage for rebutting the plaintiff's key evidence and presenting any "affirmative" defenses to the plaintiff's allegations.
When a personal injury lawsuit involves multiple parties (i.e. where three individual plaintiffs sue one defendant, or one plaintiff sues two separate defendants), attorneys representing each party may give their own distinct opening arguments.

How is witness testimony taken?/What is cross-examination?

At the heart of any personal injury trial is what is often called the "case-in-chief," the stage at which each side presents its key evidence and arguments to the jury.

In its case-in-chief, the plaintiff methodically sets forth its evidence in an attempt to convince the jury that the defendant is legally responsible for the plaintiff's injuries and damages. It is at this point that the plaintiff may call witnesses and experts to testify, in order to strengthen his or her case. The plaintiff may also introduce physical evidence, such as photographs, documents, and medical reports. Especially in more complicated personal injury lawsuits such as medical malpractice and defective product claims, a plaintiff's utilization of expert testimony and documentary evidence will be crucial in proving the defendant's legal responsibility for the plaintiff's damages.

Whether a witness is called by the plaintiff or the defendant, the witness testimony process usually adheres to the following formula:

The witness is called to the stand and is "sworn in," taking an oath to tell the truth.

The party who called the witness to the stand questions the witness through "direct" examination, eliciting information through question-and-answer, to strengthen the party's position in the dispute.

After direct examination, the opposing party has an opportunity to question the witness through "cross-examination" -- attempting to poke holes in the witness's story, attack their credibility, or otherwise discredit the witness and his or her testimony.

After cross-examination, the side that originally called the witness has a second opportunity to question him or her, through "re-direct examination," and attempt to remedy any damaging effects of cross-examination.

After the plaintiff concludes its case-in-chief and "rests," the defendant can present its own evidence in the same proactive manner, seeking to show that it is not liable for the plaintiff's claimed harm. The defense may call its own witnesses to the stand, and can present any of its own independent evidence in an effort to refute or downplay the key elements of the plaintiff's legal allegations. Once the defense has rested, the plaintiff has an opportunity to respond to the defense's arguments through a process known as "rebuttal," a brief period during which the plaintiff may only contradict the defense's evidence (rather than present new arguments). Sometimes, the defense may in turn have a chance to respond to the prosecution's rebuttal.

Once the plaintiff and defendant each have had an opportunity to present their case and to challenge the evidence presented by the other, both sides "rest," meaning that no more evidence will be presented to the jury before closing arguments are made.

What are closing arguments?

Similar to the opening statement, the closing argument offers the plaintiff and the defendant in a personal injury dispute a chance to "sum up" the case, recapping the evidence in a light favorable to their respective positions. This is the final chance for the parties to address the jury prior to deliberations, so in closing arguments the plaintiff seeks to show why the evidence requires the jury to find the defendant legally responsible for the plaintiff's injuries. In turn, the defendant tries to show that the plaintiff has fallen short of establishing the defendant's liability for any civil judgment in the plaintiff's favor.

What are jury instructions?

After both sides of the case have had a chance to present their evidence and make a closing argument, the next step toward a verdict is jury instruction—a process in which the judge gives the jury the set of legal standards it will need to decide whether the defendant should be held accountable for the plaintiff's alleged harm.

The judge decides what legal standards should apply to the defendant's case, based on the personal injury claims at issue and the evidence presented during the trial. Often, this process takes place with input and argument from both the plaintiff and the defendant. The judge then instructs the jury on those relevant legal principles decided upon, including findings the jury will need to make in order to arrive at certain conclusions. The judge also describes key concepts, such as the "preponderance of the evidence" legal standard; defines any specific injury claims or "torts" the jury may consider (i.e. fraud and infliction of emotional distress); and discusses different types of damages (i.e. compensatory and punitive) -- all based on the evidence presented at trial.

The case then goes "to the jury."

How is a verdict reached?

After receiving instruction from the judge, the jurors as a group consider the case through a process called "deliberation," attempting to agree on whether the defendant should be held liable for the plaintiff's claimed injuries, and if so, the appropriate compensation for those injuries. Deliberation is the first opportunity for the jury to discuss the case—a methodical process that can last from a few hours to several weeks. Once the jury reaches a decision, the jury foreperson informs the judge, and the judge usually announces the verdict in open court.

California requires a two-thirds majority, or nine out of a twelve-person jury to find for the plaintiff or the defendant. If the jury fails to reach a sufficient majority verdict and finds itself at a standstill (a "hung" jury), the judge may declare a "mistrial," after which the case may be dismissed or the trial may start over again from the jury selection stage.

This site and the information included in it are not intended to serve as a substitute for consultation with an attorney. Specific legal issues, concerns and conditions always require the advice of appropriate legal professionals. Please contact one of our experienced attorneys to discuss the specific details of your situation.

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