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Frequently Asked Questions
What Happens Before,
During and
After a Lawsuit is Filed?
Overview
Many people have little knowledge about what
happens when someone has been injured and seeks compensation. Unlike
television shows that focus on the trial, in litigation many events occur
before the case goes to trial. The following is a list of events that may
occur.
Before a Lawsuit is Filed
Initial Pleadings and Court
Appearance
The plaintiff (the person who is suing)
files a complaint with the court and a summons is issued. A
"complaint" is a legal document setting forth plaintiff’s claim for damages. Plaintiff has 60 days to serve the complaint once it is
filed.
The court randomly selects a judge who will
preside over most aspects of the case.
The defendant is served with the summons and
complaint. Defendant (the person or entity being sued) must respond to the
complaint within 30 days of service.
The defendant files a responsive pleading
which is either an "Answer" denying the allegations, a
"Demurrer" that challenges only defects on the face of the
complaint, or a "Motion to Strike" irrelevant matters, conclusionary allegations or improper demands or damage claims in the
complaint.
The plaintiff will file an opposition to
demurrer or motion to strike filed by the defendant. A court will set a date
and time to hear argument.
An Initial Status Conference will be held in
court during which the judge will meet the attorneys and establish time
parameters within which to complete certain tasks.
Formal Discovery
Either side can draft and serve discovery. The
following are typical formal discovery devices:
Written questions called
"Interrogatories," to which opposing counsel may have 30 days to
supply answers, or object.
"Request to Produce Documents," to
which opposing counsel may have 30 days to supply the requested documents,
or object.
"Requests for Admissions of Fact,"
which require the opposing party to admit or deny the truthfulness of
certain facts. Opposing counsel may have 30 days to respond to these
requests, or object.
"Subpoenas duces tecum" on third
parties requiring them to copy and produce relevant documents, or object.
"Demand for Inspection": The
plaintiff can ask the defendant to allow plaintiff’s attorney and his
expert to examine defendant’s property for purposes of photographing or
measuring the property in question.
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"Demand for Independent Medical
Examination": The defendant can ask the plaintiff to submit to a
limited medical examination by a physician chosen by the defense attorney.
The plaintiff can be accompanied by his or her attorney or someone from the
attorney’s staff.
Either side can take
depositions
of the opposing party and of witnesses. A deposition is where an attorney
asks a person questions and the person responds. The answers are given under
oath and taken down by a court reporter. Attorneys from both sides are
present.
To learn more, go to
What
is a Deposition? |
Discovery Motions
Interrogatories, Request for Production of
Documents, Requests for Admissions of Fact, Inspection Demands, Demands for
Medical Examination, and Depositions are called formal discovery. If
one side fails to comply with a discovery request, the propounding party can
file a motion with the court asking the court to compel compliance. The
opposing party can file an opposition explaining why the discovery motion
should be denied. The court will have the attorneys appear before the judge
to argue the motions and the court will rule. If the court rules that the
discovery responses are insufficient, the court will order further
responses.
Dispositive Motions
Either side can draft and file a Motion for
Summary Adjudication of the Issues. This motion is usually filed by the
defendant and it asks the court to dismiss plaintiff’s complaint. In order
to win this motion, the defendant must prove that if the evidence presented
is looked at in the light most favorable to the plaintiff, the plaintiff as
a matter of law cannot prevail. The plaintiff’s attorney will file a
written opposition to this motion setting forth the evidence that
establishes legal and factual bases that would allow the case to proceed. To
learn more go to
What is Evidence?
Approaching Trial
The parties designate expert witnesses who may
testify at trial. The attorneys may choose to take the
deposition of all, some, or none of the expert witnesses.
The attorneys draft the following documents to
give to the court before trial:
Exhibit Lists
Witness Lists
Statement of the case
Jury instructions
Motions in limine to prevent the introduction
of certain evidence, and
Oppositions to the other party’s motions in limine
Exhibit
Books and demonstrative evidence are prepared.
To learn more go to
What is Demonstrative Evidence?
The attorneys appear for a final trial
setting conference.
Trial
If the lawsuit has not been settled or if the parties
have not agreed to place the matter in arbitration, the
case will be tried. Many cases settle before trial. For
related information go to Is
There Any Alternative To Going To Trial? The following
is an overview of what occurs during a jury trial:
The court rules on the motions in limine.
A panel of potential jurors is called and the
court and the attorneys question the jurors. This is called "voir
dire." The court first asks questions, then the plaintiff’s attorney,
and then the defense attorney. Voir dire is an important part of the
process. In a typical case, the plaintiff and the defendant can exercise unlimited challenges for cause (asking the court to excuse a potential juror
because the juror has indicated a legal ground for disqualification such as
bias for or prejudice against a party) and six peremptory challenges (a
challenge not for cause. Each attorney is trying to select jurors who are
favorably disposed to ruling in favor of his or her client.
A jury of 12 is selected and depending upon
the estimated length of the trial, alternate jurors may be selected.
The court reads some jury instructions to the
jury before opening statement. This is called a "pre-instruction."
The attorneys give "opening
statements." An opening statement is a presentation of what claims are
being made and what evidence will support the claims. The plaintiff’s
attorney goes first and then the defense attorney.
The plaintiff will present his or her
witnesses first. The attorney who calls the witnesses usually presents
testimony through "direct examination." At the conclusion of
direct examination, the other attorney has the opportunity to question the
witness. This is called cross-examination.
To learn more go to
What is Cross-Examination?
This can be followed up by
re-direct and re-cross examination. An attorney is allowed to call the
opposing party or an adverse witness under Evidence Code section 776 and
cross-examine the witness before the other side does direct examination. The
advantage of cross- examination is that the attorney can ask
"leading" questions, which are questions that suggest the answer
and questions that can restrict the witness to "yes" and
"no" answers. During questioning on direct and cross-examination,
the attorney not asking questions can object. To learn more go to
What Are Trial Objections?
After the plaintiff has presented his or her
evidence, the plaintiff will rest. The defense can then present evidence
through its witnesses. The defense attorney will call its witnesses and
conduct direct examination. The plaintiff’s attorney will then
cross- examine the defendant’s witnesses.
After the defense rests, the plaintiff can
offer rebuttal evidence and the defendant can then offer sur-rebuttal
evidence. The court is generally restrictive in the type and length of
rebuttal and sur-rebuttal evidence.
Once the evidence has been received, the
plaintiff gives his closing argument. Argument differs from opening
statement in the sense that the attorney is permitted to argue the
applicable law, the evidence introduced and the reasonable inferences that
may be drawn from the evidence. Argument should have the proper mix of logic and emotion to sway both the minds and the hearts of the jurors to rule in
the client’s favor.
After the plaintiff’s attorney finishes his
argument, the defense attorney argues. When the defense attorney has
concluded his argument, the plaintiff is permitted one last opportunity to
argue his case. This is called "rebuttal argument."
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After argument has been completed, the
court
will read the instructions to the jury. Instructions are a summary of the law and covers matters such as how to view evidence, how to determine the believability of witnesses, who has
the burden of proof, what are the
elements of plaintiff’s claim that he must prove, what are the elements of
defendant’s defenses that it must prove, and what are the elements of
damages to consider. A partner of
Cheong, Denove, Rowell & Bennett has been formally
recognized as one of the attorneys who assisted the task
force in the preparation of these jury instructions.. CACI are the
approved jury instructions from the Judicial Council of California. Jury
Instructions are read to the jury by the judge and establish the law the
jury must follow in deciding the case.
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The court instructs the jury to go into the
jury deliberation room and select a foreperson to preside over the
deliberations. The jury is given a verdict form that contains questions they
must answer. As soon as nine or more jurors agree on the questions, they
return to the courtroom. The verdict form is given to the clerk, who gives
it to the judge. The judge reads the verdict to himself and hands the
verdict back to the clerk, who reads the verdict aloud in open court.
Post-Trial Motions
Many people think that the verdict is the
final chapter. It is not. The losing side can file post-trial motions
attacking the verdict. A Motion for J.N.O.V. asks the court to throw out the
verdict and enter a judgment in favor of the losing party. This motion is
rarely granted.
The losing party can also file a Motion for
New Trial. This motion, if granted, does not result in a judgment in favor
of the losing party, but sets aside the verdict and requires the case to be
retried before a new jury. Although this motion is less drastic than a
motion for J.N.O.V., it, too, is rarely granted.
Appeal
After the conclusion of post-trial motions, the
losing party can appeal the verdict. The appeal is heard before a panel of
appellate justices, who read the appellate briefs filed by the attorneys and
hear argument by the attorneys. The majority of civil appeals are denied. The
appellate justices do not reverse a verdict merely because they do not agree
with the jury’s findings. To reverse a case on appeal, the justices must
find that prejudicial error has occurred. To learn more, go to
What is an Appeal?
Conclusion
This summary should give you a working idea of
what to expect in a lawsuit. Every case has a winner. Every case has a loser.
The attorney you select will have an effect on the eventual outcome of your
case.
Cheong, Denove, Rowell & Bennett
has the extensive resources to handle the most
complex legal matters, yet is small enough to
offer individualized service to our client's on
their insurance bad faith cases.
At
Cheong, Denove, Rowell & Bennett we believe the
more you know, the better choice you will make.
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The
information you obtain at this site is not, nor is it
intended to be, legal advice. This web site is designed for
general information only. The information presented at this
site should not be construed to be formal legal advice nor
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