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
- Ascertain the facts
- Determine and calendar the appropriate statute of limitations. To learn more go to: When Must I File My Claim or Lawsuit?
- Find and interview witnesses;
- Photograph and document conditions and injuries;
- Obtain medical records and reports;
- Itemize medical bills, loss of earnings and other damages;
- Determine the identity of all responsible parties;
- Establish a theory of liability;
- Anticipate and prepare for defendant’s arguments;
- Attempt to reach a settlement before filing a lawsuit;
- Select the most appropriate venue to file the lawsuit.
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.
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.
- “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?
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.
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?
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.
- The attorneys appear for a final trial setting conference.
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.”
- 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.
- 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.
- 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.
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.
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 clients. At Cheong, Denove, Rowell & Bennett we believe the more you know, the better choice you will make.