Anatomy of a Lawsuit
(By William Markham, © 2007 and updated in 2022)
- What is a Lawsuit?
- The Litigator’s Paradox
- First Illustrative Example
- “Private Justice”
- Why We Have the Law and Lawyers
- Criminal Prosecutions and Civil Lawsuits
- Have an Attorney Represent You
- Personal Jurisdiction, Subject-Matter Jurisdiction and Venue
- Cross-Claims and Consolidation of Related Claims
- The Summons, Complaint, Original Service and Default
- Responding to a Complaint: Motions to Quash, Demurrers, Motions to Strike, and Answers
- Judicial Stays and Other Remedial Procedures
- Case Management: Establishing and Managing a Case Calendar
- Discovery Procedures
- Summary Adjudication and Summary Judgment
- Other Motions
- Other Trial Preparations
- Watching Trials Yourself
- The Trial of the Case; Post-Trial Motions; Appeals
This article is written for non-lawyers, young litigators, and non-litigator attorneys who wish to understand how a lawsuit works in practice from start to finish. Many practice guides address this topic, offering comprehensive information on all possible points. They tend to be complicated, exactly correct, overflowing with specifics, and very lengthy, making them highly useful to a trial lawyer, but unhelpful or pointless for casual observers. In this article, I try to fill the gap by offering a general overview of what happens in a lawsuit from the time it is started until it is “finished” (i.e., adjudicated to conclusion after all appeals have been exhausted or waived).
If you seek technical details and procedural requirements, you should consult one of the many excellent practice guides. Since I practice law in San Diego, my own favorites for this purpose are the Rutter Group Practice Guides for state and federal procedures. If however you are merely curious and wish to see the “forest” before examining any “trees,” please continue reading, and I promise an informative, accurate guide, colorful examples meant to bring this topic to life, and various tips and pointers offered by a battle-hardened litigator (yours truly).
What Is a Lawsuit?
If two or more legal persons become embroiled in a dispute that they cannot resolve on their own, one or more of them may decide that the dispute can be resolved only by means of a lawsuit. A lawsuit is a legal proceeding by which one or more parties ask a court of law to give specified relief because of legal wrongs that another party or parties have allegedly committed.
More exactly, a lawsuit is a legal proceeding undertaken to redress an alleged legal wrong that is brought by one or more plaintiffs against one or more defendants in a court that wields jurisdiction over the litigants and over the subject-matter of the controversy. Once the lawsuit is properly begun, the Court has jurisdiction over the parties and over their dispute, and it therefore has the power to resolve the controversy by issuing interim orders and eventually a judgment, which binds the parties. The losing party at trial can seek to have a judgment reversed on appeal, and the losing party in an appeal can request a review of its case and a reversal of the appellate court’s decision by a state supreme court in state cases or the United States Supreme Court in federal cases. When all appeals and reviews have been exhausted or waived, the final judgment then in place is binding and can be enforced against the losing party or parties.
This is no joking matter. If for example a plaintiff obtains a judgment from a California court for $85,000 against the defendant, the judgment will accrue interest at 10% per year and can be renewed every ten years. All the while, the plaintiff can try to enforce the judgment by any or all of the following civil procedures: recording a lien against real property that the defendant owns; levying money that defendant holds in its bank accounts; garnishing an individual defendant’s salary or wages; summoning the defendant or others to judgment-debtor examinations at which they must answer questions under oath about the defendant’s assets, liabilities, and transactions; arranging to have a sheriff enter the defendant’s shop to collect funds paid by its customers; and so on. If the judgment includes an injunction that permanently forbids the defendant to engage in a specified activity, the plaintiff can have the defendant held in contempt of court if it engages in the proscribed activity. That outcome usually entails significant consequences and ensures that the defendant will not afterwards engage in the forbidden conduct. The stakes can be even higher in criminal cases.
After a lawsuit is begun, but before it is concluded, the parties can agree to settle it at any time. If they fail to do so, the Court will ultimately decide the case by either dismissing it or entering a judgment against one or more of the parties.
The initial court in which the lawsuit is litigated is called the court of first instance or the trial court, and its decision in the case can be appealed, as can certain of its interim orders made before its final decision. The original judgment might or might not be modified or reversed by an appeal, but eventually there will be a final judgment from which no more appeals can be made. This final judgment constitutes the definitive resolution of the controversy, and the parties can never again complain about the matters in dispute in this controversy. Those matters have been conclusively adjudicated and definitively resolved. This definitive resolution is called res judicata. A related doctrine called collateral estoppel can be invoked to bar a re-litigation of specific issues in a subsequent proceeding.
When parties in a lawsuit settle claims, they usually resolve their underlying controversy and ensure that no aspect of it can again be litigated in any court, but some settlement agreements afford only a partial resolution of the underlying controversy, which at least narrows the matters that remain in dispute. Nearly all lawsuits settle, but some cases are tried.
The Litigator’s Paradox
I have noted above that most lawsuits settle by voluntary agreement between the litigants before the case is decided. But you should bear in mind what I call the litigator’s paradox. If a plaintiff brings suit without planning to try its claims, it is likely to receive a mediocre settlement or none at all from the defendant, which will likely grasp sooner or later that the plaintiff is not developing its case for trial. If a party brings suit in order to try its claims, and then gathers and organizes its evidence accordingly, the defendant will likely treat its claims more seriously. The defendant might still conclude that the plaintiff’s claims lack merit, but if the plaintiff perseveres and assembles the evidence that it can use to prevail at trial, and if the plaintiff can survive the defendant’s pre-trial motions to have the case dismissed, the defendant will usually prefer to settle the case.
That is the litigator’s paradox, which can be summarized as follows: a party that brings suit only to force an early settlement often fails to receive an acceptable one, while a party that methodically prepares its case for trial often obtains a good settlement, making a trial unnecessary. Of course, every case depends upon its own variables and internal dynamic, but this has been my general experience. The upshot is that a good litigator must always prepare each of his pending cases for trial. If he does not, he is merely beating his chest and bellowing in the wind, not litigating a case.
First Illustrative Example
In this article, I mean to walk you through the basic steps of a lawsuit. In order to do so, I want to have a standing example, which I can refer to as I wish in order to make my points more clearly. Here then is my example.
We will suppose that my neighbor has stolen tomatoes from my expansive tomato garden, and that I have filmed the episode on videotape (in real life my neighbors are fine, upstanding citizens and delightful neighbors, but I need an example, and this one will have to do).
Let’s further suppose that I was under contract to sell these tomatoes to a famous French chef named Paul DuBois, who lives in France but shops for the best tomatoes all over the world. Chef DuBois intended to use my tomatoes to make his world-famous “authentic tomato sauce,” which he sells in grocery stores across Europe and North America, and which he has made plans to sell in various parts of Asia and Latin America. Since he cannot buy tomatoes from me, he is forced to buy his produce instead from another gardener, whose tomatoes, unlike mine, are infested with e-coli bacteria. DuBois’s tomato sauce then kills seventeen innocent customers, one of whom was a 29 year-old neurosurgeon, whose expected lifetime earnings were at least $30 million. In the meantime, Dubois’s tomato sauce and other food products suffer horrible press around the world, and his once promising business collapses irreparably.
Desolated by his ruin, Chef Dubois resolves to have justice, exclaiming aloud: “I will sue everyone responsible for this catastrophe. I will have justice from everyone involved, even if it is the last thing that I ever do!” (He says this in French, but I have given you the translation).
This then will be our example.
In this example, I merely wished to grow wonderful tomatoes and sell them for a profit, but could not do so because of my neighbor’s theft. Then I learn that my former customer, Chef DuBois, has become embroiled in an extraordinary, tragical mishap, which has been reported in the international press. I begin to question whether I might be drawn into the controversy and held responsible for any part of the losses. That causes me disquiet and concern, adding to my dismay and indignation. I thus become very cross with my neighbors, whom I trusted, and who stole my tomatoes from me, putting into motion a chain of events that culminated in a worldwide health crisis, the tragic death of a young, brilliant neurosurgeon, and the collapse of Chef DuBois’s once promising business. I am very furious indeed.
Suppose that my first impulse is to confront my neighbor, perhaps manhandle him a little, seize my tomatoes by force from him, and threaten violence unless he pays me “every penny that his theft will cost me.” Suppose my neighbor is a swaggering bully, who at this provocation takes out his pistol and shoots me, crippling me for life. Imagine an ensuing feud between our families that lasts five generations and takes the lives of fourteen people. Think about the Hatfields and the McCoys. This is probably how they got started.
You see my “private justice,” however pleasing to me in my daydreams, is fraught with peril and is likely to miscarry horribly. I cannot accost my neighbor, even if he has stolen my tomatoes, and even if I have videotape of the entire incident. If I do so, I perhaps run the peril of my life, or must involve my family and his in an ever-worsening rivalry. If nothing else, I fear that I will be arrested and publicly disgraced.
I never even have to consider these points because I belong to a civilized society in which disputes are resolved by rule of law, not by brute force or private justice. Those who breach the peace refuse to accept these bedrock principles, and the law must be especially firm in its dealings with them.
Why We Have the Law and Lawyers
As noted above, I cannot seize and punish my neighbor myself, but must instead seek redress from “the law.” This is the whole point.
In a civilized society we resolve conflict by rule of law, using regular, pre-defined procedures that meet standards of due process. Anything less is lawlessness and barbarism.
That is why we have laws, lawyers, and lawsuits. Remember that the next time you make a derisive joke about lawyers. Lawyers are necessary to the administration of the rule of law. We are officers in a system of rule of law, by which our many, inevitable controversies are resolved. Criminal offences are handled by public prosecutors, who in turn are usually aided by an investigative police force that has authority to arrest and detain those suspected of criminal wrongdoing. Private offenses are pursued by private litigants in civil court, where in the final instance a judge and perhaps a jury say what must be done as between the plaintiff who brought the suit and the defendant who answered it. If a government officer breaches his duty or abuses his authority, he too can be held to account in a number of different ways.
Yes, this system has its many drawbacks and burdens, and many lawyers deserve all the ridicule and derision that a scornful public enjoys heaping upon them. But to my knowledge rule of law is the best method in an imperfect world for resolving human disputes. I am therefore very proud of what I do and make no apology to anyone for my profession, which rather is my honor as well as my calling.
A lawsuit, then, is the procedure that we use to resolve disputes that the protagonists cannot resolve on their own by a private agreement.
If my neighbor steals my tomatoes, I can bring a civil suit against him myself, or I can report the matter to the police, hoping that the they will initiate a criminal investigation that will result in a public lawsuit (criminal prosecution) of my neighbor. Or I can do both.
Criminal Prosecutions and Civil Lawsuits
Let’s return now to my example, which has taken place in lovely San Diego, where I am angry at my neighbor and wish to report him to the local police. I therefore make a visit to the local police and show them the incriminating videotape, confident that I have just given convincing proof of the crime of the century, since each person naturally tends to think that his matter is the most important of all, but most of the time no one else does.
Of course, the police and public prosecutors have enormous discretion to decide which criminal matters they wish to investigate and prosecute. After viewing my video, the police offers snicker, saying that they have better things to do with their time than to pursue such “small tomatoes.”
So there will be no criminal prosecution of this tomato larceny. My neighbor, by stealing the tomatoes, has committed the criminal offence of larceny, but public authorities have decided not to bring a criminal lawsuit against him.
If there were to do so, a public prosecutor would initiate a public lawsuit for criminal offenses against the defendant, who is sometimes called the accused. Such a lawsuit is always an independent proceeding in which no other claim can be litigated except for related criminal charges. The burden of proof and procedural issues in a criminal case are different from those of a civil lawsuit, by which a private party asserts claims against another private party, seeking not a criminal conviction, but a civil judgment.
Thus it may be said that a criminal prosecution and a private lawsuit are two different kinds of lawsuits, but each is a lawsuit all the same. In each instance, one party brings suit against one or more defendants in a court of law, which can then conduct a trial of the alleged facts and apply the law to these facts in order to reach an outcome, which is binding on the parties and constitutes a definitive resolution of the matter adjudicated. Criminal lawsuits are different from civil ones, but both are lawsuits. A private person has no authority to bring a criminal case. Only a public prosecutor can do so. Since I am a civil litigator who represents private litigants, I will devote the remainder of this article to explaining civil lawsuits.
Have An Attorney Represent You
Let’s now return to our illustrative example, in which there will be no criminal prosecution of my neighbor for his larceny of my tomatoes.
My only remaining lawful recourse is to bring a private suit myself against my neighbor, who I will allege has committed two torts: “conversion of assets” and “trespass.” I will therefore allege that he has “converted” my tomatoes to his own use, and that for this purpose he unlawfully came unto my property without my consent.
I naturally hire an attorney to represent me in this matter and to prepare a complaint against my neighbor. Why do I do so? First, a non-attorney should never represent himself pro se, as he is an easy, sitting target in nearly every instance for an opposing attorney trained to litigate a case.
But I am an attorney, so why should I not represent myself? The answer is that I will lack a disinterested view of the case that an attorney requires to litigate claims successfully. Thus the adage, “an attorney who represents himself has a fool for a client.” It would also be too difficult for me to make a persuasive presentation of my evidence at trial, if I must act as both my own witness and my own advocate. I therefore choose to hire an attorney to represent me. If you ever have to bring a lawsuit, you should do the same.
Personal Jurisdiction, Subject-Matter Jurisdiction, and Venue
One of the first issues that my attorney must consider is where to file my lawsuit against my neighbor? The answer is always the same. My suit must be brought in a court that has personal jurisdiction over all the defendants and subject-matter jurisdiction over the underlying controversy.
When I file suit in this matter in a given court, I in effect ask the court to exercise its personal jurisdiction over the defendant (my neighbor), summoning him to appear before it to answer my charges, over which it must have subject-matter jurisdiction, or else it cannot hear the case.
In this instance, both points will be child’s play to establish. The court has personal jurisdiction over my neighbor because he lives in California and is therefore subject to the court’s general jurisdiction. More generally, the best way to establish personal jurisdiction over a defendant is to sue him where you “find” him, or, in other words, in the jurisdiction where he resides or works there. A company is said to be found in a jurisdiction if it has an employee, office, or other facility there.
Another way to establish personal jurisdiction is to say that the defendant committed the wrongdoing in the jurisdiction where you wish to sue him, and this argument would work for me as well: my neighbor not only resides in California, but also committed the legal wrong here, coming onto my property in California without my leave in order to steal tomatoes from my garden. In other cases, you can establish personal jurisdiction by plausibly alleging that the defendant committed a legal wrong in the jurisdiction, or that he breached a contract that was made or was supposed to be performed in the jurisdiction, or that he maintains sufficient “minimal contacts” with the jurisdiction, so that he can “expect” to be sued in it. If claims arise from a contract (which is not true in my example), the contract might include a choice-of-forum provision that specifies the jurisdiction where the claims can or must be litigated. Courts usually enforce such provisions, unless they find that the claims or the parties lack a reasonable relationship to the designated jurisdiction.
As for subject-matter jurisdiction, it is likewise a simple matter in this instance. Trespass and conversion are common-law torts that can be privately litigated, and the courts of California have general subject-matter jurisdiction over all common-law claims as well as all claims that arise under a California statute. They can even exercise subject-matter jurisdiction over claims that arise under a federal statute, unless the any such claim is subject to the exclusive jurisdiction of a federal court. More generally, state courts wield general jurisdiction over all claims that arise within their jurisdictions unless the claim must be litigated in federal court because of a federal law.
For example, only a United States District Court has original jurisdiction over a claim brought under the federal Sherman Act, which is a federal antitrust statute. If I wish to assert a claim under this law, I must bring it in the appropriate federal district court. The federal courts are thus said to wield exclusive jurisdiction over any claim made under the Sherman Act.
In our example, however, I wish to assert claims against my neighbor for common-law torts that I allege he committed in California — conversion and trespass. I can therefore bring these claims in a California court, which will have personal jurisdiction over my neighbor as well as subject-matter jurisdiction over my claims.
But California is a very big state and has many trial courts located in its different parts — specifically, it has trial courts in each county of the state. These courts are called California Superior Courts. Should I sue my neighbor in the Superior Court that is furthest away from where he lives in order to subject him to inconvenience and expense, perhaps bringing my claims in Altoona, California? If I were to try, I would be surely sanctioned for an obvious misuse of a civil procedure, and besides my neighbor could have the matter transferred to a more suitable venue (place). To do so, he would make a motion to transfer venue, arguing that San Diego is a more convenient venue than Altoona because it is the location where both the plaintiff and defendant reside, where the legal wrongs at issue allegedly occurred, and where all of the witnesses and documentary evidence are located.
The case would therefore be transferred to San Diego, where I should have brought it in the first place. Since I do not wish to subject myself to sanctions, or begin my case on the wrong note, I would bring suit in the proper venue in the first place, and therefore none of this would ever happen.
These then are the related issues of personal jurisdiction, subject-matter jurisdiction, and venue. They sometimes present difficult problems, but not in our example.
Cross-Claims and Consolidation of Related Claims
To return to our example, I have sued my neighbor for conversion of assets and trespass in the California Superior Court for San Diego County. When answering my complaint, my neighbor might consider asserting cross-claims against me or someone else who might be involved in the underlying controversy. Indeed, my neighbor must assert any cross-claim that he claims to have against me because of the underlying controversy, or else he will forfeit the claim: any such cross-claim is deemed “compulsory” and must be litigated in the same case as my claims against him. He can also assert as a cross-claim any other claim that he believes he has against me: any such cross-claim is deemed “permissive.” He can also assert one or more cross-claims against anyone else so long as any such claim arises from the same controversy as my claim against him.
In the meantime, Chef DuBois’s company, the DuBois Company, has sued me for breach of contract in the same court, but in a different proceeding. In response, my attorney makes a motion to consolidate the two proceedings on the ground that they largely concern the same series of transactions and occurrences, and that both cases should be litigated together or at least that the common issues of fact and law should be litigated together, so as to avoid duplicative proceedings or contradictory adjudications of the same issues of fact and law. The judge agrees with my attorney, and he grants the motion, so that my case against my neighbor and the DuBois Company’s case against me are consolidated.
The Summons, the Complaint, Personal Service, and Judgment By Default
In our example, we will assume that it was an easy matter for me to serve my neighbor, and that I graciously accepted service from the DuBois Company, so that all the parties in both proceedings have been served.
But let’s back up for a moment to consider the matter of personal service, without which a lawsuit cannot proceed.
To begin a lawsuit, an attorney will prepare a complaint, file it in court, and have the Court issue a summons. The attorney will then arrange to have the complaint and summons served on each named defendant. In my case against my neighbor, my attorney has prepared a complaint for conversion of assets, which he has filed, and he has prepared a related summons, which he has submitted to the local court for issuance. He now has a file-stamped copy of the complaint and an issued summons, which he must arrange to have personally served on my neighbor. Once this occurs, my neighbor is in the case, no matter how much he would prefer to be out of it.
This then is the simple process of having the court issue a summons and accept my civil complaint. I then must have the summons and complaint personally served on my neighbor or otherwise served on him in accordance with the service statutes. To do so, I will typically hire a professional process-server to perform the service. Once this service is properly accomplished, I will return the summons along with proper proof of service, showing the court that I have served its summons and my complaint on the named defendant.
In the meantime, my neighbor must respond to my complaint within the time stated in the summons (in our example, he would have to respond within thirty days of the date of service). My neighbor is now the defendant in my civil suit against him, and if he fails to respond on time I can submit a request for entry of default to the court, asking that it declare the defendant in default. The court, upon confirming that I have properly served the defendant, will enter a default against him, meaning that he can no longer appear in the case to defend himself, unless he first brings a motion to be relieved from his default.
Typically, a court will relieve a default if the defaulted defendant requests relief within six months of the date of entry of default. Even so, the defendant must present some reasonable excuse for his failure to respond on time to the complaint. The courts indulge many such excuses on the theory that it is better to have an adjudication on the merits than a judgment by default, but the courts are not obliged to relieve a default, and any sensible person will never ignore or default upon a lawsuit brought against him.
After six months, however, it becomes harder and harder for a defendant to obtain this relief, and after a year or so the burden becomes very difficult or insuperable. This is because parties are entitled to “settled expectations” and a “resolution of disputes”, and besides it is poor policy to allow defendants to default for extended periods, only to resurface at some later date, perhaps when the evidence is no longer available.
If a default is entered, the plaintiff can then make a submission or appear unchallenged in order to prove his damages, and the clerk or the judge will then enter a judgment in his favor according to his proofs.
This is the quickest way to win – or lose – a lawsuit. If someone is sued but does not respond, he will lose by default, and then the plaintiff can appear unopposed to present his claim for damages, which, upon a proper showing, will become a judgment that he can enforce. It is often only at this point that the defaulted defendant wisens up and seeks relief from his default. If he arrives within six months he has some chance of getting relief. Otherwise it might well be too late for him. It is never a good idea simply to ignore a lawsuit that has been served on you.
Responding to a Complaint: Motions to Quash, Demurrers, Motions to Strike, and Answers
Suppose that my neighbor sensibly decides to answer my complaint.
In our example, I have sued him for conversion of assets. He must respond within the stated time. When doing so, he can decide before answering to do one or more of the following:
- Move to quash service on the ground that the personal service was never performed or was improperly performed.
- Demur to my complaint, arguing that it is poorly worded or that its underlying legal reasoning is flawed, and that it must either be replead to clarify its meaning or dismissed because even if the plaintiff were to prove his allegations, he would establish no claim against the defendant. In federal court, a defendant can move to dismiss a complaint on these grounds.
- Move to strike various allegations made in the complaint on the ground that they are irrelevant to the underlying dispute, or scurrilous, improper, or otherwise impermissible, and made to harass the defendant, not to vindicate a legal claim against him.
- Interrogatories: These are questions that the examining party poses to the responding party. Form interrogatories, which are available in California cases, set forth a series of pre-approved questions that arise in nearly all cases, including questions about the respondent’s education, work history, and other background information. Special interrogatories are far more important in any difficult litigation: they are questions that the examining party prepares specifically for the case at hand, and in response to which the respondent must state his legal contentions and provide specific, detailed information to support or explain each of his claims, particular information that might be difficult for him to remember or state clearly at an oral deposition.
- Requests for Production: These are formal requests for “documents” (defined in the broadest possible terms). Typically, each side will wish to examine every document that is relevant or possibly relevant to any aspect of the case, and so each side will send expansive document requests to every other party and to non-parties who likely have relevant documents that none of the parties have. It is sometimes important to seek documents from non-parties to ensure that the opposing party has not withheld documents, when both the opposing party and others have the same documents, and it appears likely or at least plausible that the opposing party has withheld some or all of them.
- Requests for Admissions: These are formal requests, in response to which the respondent must admit or deny certain propositions of fact that are relevant to the case. The respondent can also be asked to confirm that specified documents are “genuine” originals or copies.
On rare occasion, a defendant or cross-defendant can have all the claims made against him definitively dismissed on demurrer, but usually a a court will either deny the demurrer or sustain it with leave to amend, allowing the plaintiff to cure apparent defects in his complaint. Demurrers thus serve in many cases merely to educate the plaintiff about apparent flaws in his wording or legal reasoning and oblige him only to improve his statement of his claims. I therefore think demurrers make sense only when the claims at issue are worded so vaguely or poorly that they require clarification, or when the claims cannot be cured because they allege facts that, even if proven, would not establish the claims.
In contrast, a motion to dismiss in federal court can be more readily used under federal pleading standards to defeat claims entirely or to have them significantly narrowed in scope. A motion to dismiss often helps a defendant to narrow the issues in dispute, after which it might subsequently prevail by showing that the plaintiff lacks evidence of a matter that he must prove to prevail on one or more of his claims.
To return to our example, my neighbor will likely respond to my complaint by answering it. If I have verified my allegations, my neighbor must admit or deny each one. Otherwise, my neighbor can generally deny all of my allegations. In either case, he can also assert his affirmative defenses. An affirmative defense typically depends on proving facts that defeat a claim even when the plaintiff has evidence to prove each of its required showings.
For example, in our hypothetical case I have videotape that unquestionably shows my neighbor furtively entering my property after making sure that no one is watching him, and then shows him quickly picking all of the tomatoes in my garden and swiftly exiting my property to return to his own. I can testify that I took the videotape and explain where, when, and how I did so, so that the videotape will be authenticated and admitted in evidence. I can also testify that I did not give my neighbor permission to enter my property or take my tomatoes. If that evidence is believed, I will have substantiated my claims against my neighbor. But he might assert as an affirmative defense that I waited too long to bring my claims, which are therefore barred on equitable grounds (the affirmative defense of laches) or as a matter of law (the affirmative defense of a statutory limitation). Or he might allege that somehow my own misconduct in the same matter disqualifies me from complaining of any harm that I might have suffered (the affirmative defenses of unclean hands and in pari delicto).
There are many different kinds of affirmative defenses, and each one is usually identified by a term of art. In federal court, an affirmative defense must be pled with sufficient clarity to make clear what is the defendant’s specific basis for asserting the defense.
When answering my complaint, my neighbor must at this time assert any cross-claim that he wishes to urge against me or another, after which any named cross-defendant must then respond to his pleadings and for this purpose can use the same procedures available to the original defendant, such as bringing a demurrer or motion to strike. Unless a cross-defendant succeeds at having the cross-claims against him dismissed on demurrer, he must answer the final version of these claims, denying them and asserting his affirmative defenses. In our example, my neighbor lacks a tenable claim against anyone and therefore declines to assert any cross-claim.
Recall that in our example I have persuaded the court to consolidate my case against my neighbor him with the DuBois case, which the DuBois Company has brought against me. Now that the two cases have been consolidated, it is time for me to respond to the complaint of the DuBois Company.
Convinced that this company lacks a legal basis to sue me for the many harms it has suffered, and that it has conspicuously not sued the seller of the rotten tomatoes in the same case, I could bring a demurrer and argue that its own allegations disclose a necessary party who must be joined and also prove an intervening or supervening event that absolves me of any responsibility for its unfortunate losses — namely, another seller’s negligence or malfeasance. The court would likely agree, but the company’s allegations easily suffice to state a claim against me for breach of contract: whatever else happened, I failed altogether to supply tomatoes to Dubois Company that I was obliged to deliver under our contract; and at a minimum it is entitled to recover from me its general contract damages (the difference in price between my tomatoes and those of the subsequent seller) as well as its reasonably necessary incidental costs (the charged it incurred to arrange to have a new seller deliver tomatoes on short notice). I therefore cannot end the company’s case against me by a demurrer, and I therefore decide that to address all of these matters at a later stage of the case.
I therefore file an answer to the DuBois Company’s complaint against me, denying its allegations and setting forth various affirmative defenses — including the affirmative defense of a supervening event — the subsequent seller’s negligence and delivery of unfit tomatoes. At the same time, I file a cross-claim against my neighbor, seeking equitable indemnification from him for any liability that I might ultimately be owe to the DuBois Company. My neighbor must now response to this cross-claim, and it does so by filing an answer to it.
Now the stage for our litigation has been set. Two lawsuits have been brought. They have been consolidated. The DuBois Company’s claims have been narrowed. Each defendant has answered the claims made against it, and I have added a cross-claim against my neighbor for indemnification. The pleadings are therefore said to be settled.
Judicial Stays and Other Remedial Procedures
Mindful that the DuBois Company has brought closely related claims against the other seller of tomatoes (the one who sold the tainted tomatoes), I might seek a judicial stay of its claims, which is to say, a suspension of all proceedings, or of certain proceedings, until a certain event occurs or certain conditions are met.
Subject to certain limits, the courts have broad powers to manage their calendars and authorize equitable relief, and they can stay their own proceedings for good cause. But they also have an obligation to manage their various cases and move them along within specified timelines, and a litigant can therefore obtain a judicial stay only for good cause. The best ground is usually that a given case, even if it must remain on the docket, should be stayed while some other legal proceeding is conducted, or until some critical issue can be more readily resolved after the occurrence of a specified event. It sometimes makes sense to seek a stay of discovery proceedings (described below) until the court has ruled on certain threshold issues, whose adjudication will determine what discovery should be conducted. There are all kinds of circumstances in which a partial or complete stay of proceedings might promote judicial economy — the wise use of the court’s and the parties’ resources.
In our example, my attorney would request a stay on the ground that the DuBois Company seeks the same damages from both me and the other, culpable seller of poisoned tomatoes, but that it has chosen to pursue these respective claims in separate cases, and that its case against me should therefore be judicially stayed until its claims against the other seller are resolved, so as to avoid the risk of inconsistent adjudications or a double recovery for the DuBois Company.
These same facts would also serve as a basis to have the two cases consolidated, but I do not wish to have my case become part of the other case. In my case, I seek only to prove that my neighbor stole my tomatoes and is liable to me for the harm that I suffered in consequence, and that my only liability to the DuBois company is whatever extra expense it incurred to purchase the same amount of tomatoes from another seller, but that I am not responsible for any harm caused because those tomatoes were infected. The last thing I wish to do is to have these simple matters confused with the sprawling litigation that concerns the infected tomatoes, the tragic losses their consumption entailed, and the ensuing demise of the DuBois Company’s once-promising business.
If I choose this approach, I would ask the Court to allow a full litigation of my neighbor’s conversion of my tomatoes and perhaps also a litigation of the issue of his duty to indemnify me for any harm that DuBois could later prove against me, but I would seek a stay of the DuBois Company’s claims against me until the conclusion of its other claims against the seller of the rotten tomatoes.
After considering the matter, I decide not even to seek a judicial stay. I decide instead (or rather my lawyer decides) that it will be easier to defeat nearly all of the DuBois Company’s claims against me by proving (1) supervening causes, (2) no responsibility for its consequential damages, and (3) its own failure to mitigate harm. Let’s suppose that I forgo a judicial stay and decide to proceed with a full litigation of the matter, so that I can quickly make and prevail on these defenses.
So I have now made my answer and affirmative defenses to the ambitious claims of the DuBois Company, which seeks “hundreds of millions” from me, whom it blames for the illness and death caused by the e-coli outbreak and the ensuing collapse of its worldwide business. I have also made a cross-claim for indemnification against my neighbor, who is the defendant in my case against him and a cross-defendant in the consolidated case that DuBois has brought against me.
From this example I wish to show how an attorney typically has various procedural options and must exercise judgment to decide which ones make the most sense in his case. I also wish to illustrate how each case can quickly entail complicated, difficult procedural issues.
Case Management: Establishing and Managing a Case Calendar
Once every litigant has answered the claims or cross-claims made against him, the case is said to be at issue, and the court can convene an initial case management conference at which it sets mandatory deadlines and dates, such as the dates for the discovery cut-off, initial and supplemental expert disclosures, pre-trial motions, procedures for alternative dispute resolution (e.g., mediation), and so forth.
In California and federal proceedings, the court typically holds an initial case management conference after at least one defendant has appeared, the pleading are settled as to all defendants who have appeared, and a default has been taken against any defendant who has failed to respond to the complaint. (If no defendant responds to a complaint, a plaintiff can seek an entry of default against each one, then prove his damages unopposed and obtain a default judgment.)
At the initial case management conference, the court usually sets all pre-trial dates and deadlines. In California proceedings, the courts also schedule a trial readiness conference and trial date, which is the first possible date for the trial of the case. Federal courts typically announce a case calendar only for pre-trial events, including pre-trial dispositive motions, such as a motion for summary judgment, but they schedule a trial date only at a pre-trial conference, where most trial procedures are carefully examined and addressed.
At the first case management conference, the court might ask the litigants a few questions about the case, and invariably it will refer them to some sort of alternative dispute resolution procedure, such as mediation or early neutral evaluation. In federal court, the case management conference often entails a more thorough analysis of the underlying case than it does in state court in California.
Scheduling mediation or some other kind of alternative dispute resolution requires care. Often it is not possible to have a successful mediation until there has been discovery of the key issues or perhaps court rulings on them. The parties usually should confer with one another about these matters and explain to the court what discovery procedures or motions should be completed before a mediation is attempted. Working out a sensible case-management calendar is therefore critical to the case-management process.
In our example, I will want a mediation only after I have used discovery to prove that (1) I bear no legal responsibility to DuBois Company, save for the trifling difference between the price of my tomatoes and the price of my competitor’s; and (2) my neighbor indeed stole my tomatoes, which is why I could not deliver them to DuBois. I will therefore use discovery to establish that I have only a tiny debt at most to the unfortunate DuBois Company, and that my neighbor should bear full responsibility for this debt plus reimburse me for the value of my tomatoes.
After the pleadings are settled and an initial case management conference has been held, the case is in full swing, and the parties conduct various discovery procedures in order to obtain information and gather evidence to prove their claims or defenses. I describe these procedures more fully below.
What precisely is this all-important stage of a case called “discovery”? Discovery refers to a series of civil procedures by which the parties are supposed to collect testimony and exchange information, documents, and legal contentions that are relevant to the underlying claims and cross-claims. Using these civil procedures, each side can learn about all the relevant facts of the case, assess the evidence that each side has, and gather and organize the evidence that it means to use at trial. It is also an excellent occasion to assess the credibility of the different parties and witnesses, as well as the skill and abilities of their respective attorneys.
In state court, the parties begin discovery procedures shortly after the case is filed.
In federal court, discovery is not allowed until the court authorizes it, which it typically does only at the initial case management conference. There are two exceptions: shortly before the initial case management conference, the parties can request documents from the other side, but not demand their production before the conference, and they must exchange specified initial disclosures of certain kinds of information, such as the categories of documents that each side plans to use in the case, as well as the names and contact information of witnesses whom each side expects to call. The plaintiff must also provide a general description of its claimed damages. These procedures are used only in federal cases.
In both federal and state cases, the principal discovery procedures are written discovery and oral depositions.
Written discovery refers to the following procedures:
Written discovery can be served only on other parties, but not on non-party witnesses, except that subpoenas for documents can be sent to non-parties.
Oral depositions refer to live examinations, by which one party examines another party in the presence of a court reporter, who transcribes and sometimes videotapes everything that the examining party asks, everything that the witness says, everything that the witness’s attorney says (such as objections, etc.), and in fact everything that everyone in the room might say when the deposition is “on record.”
Oral depositions can be used to conduct an examination of another party or of any non-party, but a non-party cannot be compelled to appear unless the notice of his deposition is personally served on him along with a deposition subpoena. A party can be instructed to bring specified documents with him to his deposition, meaning that there are two ways to obtain documents during discovery – by using a request for production, and by including a document request along with a notice of deposition. Since a request for production cannot be served on a non-party, a deposition subpoena is the only means by which to obtain documents from a non-party. Sometimes the deposition subpoena will instruct the non-party witness that he need not appear, so long as he produces the specified documents on time. If one party serves a deposition subpoena, the recipient or any other party can object and move to have the subpoena quashed.
In addition the foregoing, the parties must designate their respective expert witnesses and exchange expert disclosures of the topics on which their respective experts are expected to testify at trial. After doing so, each side can designate additional experts to respond to the other side’s expert testimony. Each side is also afforded an opportunity to examine the other’s expert witnesses and to provide rebuttal expert disclosures that address the other side’s initial expert disclosures. In federal cases, expert-disclosure requirements are typically much more thorough than they are in state court.
In addition, any party to a case can seek a protective order in order to obtain certain protections from discovery procedures. The most common kind of protective order is one that limits how and to whom sensitive commercial information can be disclosed and used. Another kind of protective order excuses a litigant from answering excessive or burdensome discovery that has been propounded in order to harass or overwhelm an adversary or that is otherwise unreasonably burdensome under the circumstances of the case.
If one party tries to conduct discovery but the responding party fails to cooperate reasonably, the propounding party can make a motion to compel discovery and for monetary sanctions. Such a motion can also be brought against a party who insists on making abusive discovery requests, or who otherwise engages in objectionable conduct that obstructs discovery or abuses its proper purpose – which is to ascertain the truth of the contested matters in a reasonable manner.
Before a motion for discovery misuse can be brought, the parties must try to resolve the discovery dispute on their own.
The scope of discovery is very broad, but it is subject to the above protections and to various legal privileges, such as the attorney-client privilege, as well as the “attorney’s work-product immunity,” which is a qualified privilege.
It is by discovery procedures that the parties really learn the nuts and bolts of the case. Gone are mere allegations. Now for each disputed issue of fact there is either clear proof, an absence of proof, or contradictory evidence that has to be assessed by the trier of fact.
In our glorious example, we will suppose that my attorney will astutely use discovery procedures to demonstrate by a preponderance of evidence that (1) my neighbor entered my garden at night and stole my tomatoes; (2) all the harm suffered by the DuBois Company was directly or indirectly caused by the e-coli contamination, which in turn was caused by a supervening event for which I bear no legal responsibility; and (3) I could not have reasonably foreseen when agreeing to sell my tomatoes to the DuBois Company that, if I failed to deliver my tomatoes on time, it might purchase poisoned tomatoes from another and then find itself ruined by an ensuing e-coli outbreak.
My attorney will now wish to have the entire case resolved as a matter of law, using his discovery findings to argue that there are no “triable issues of fact,” and that therefore there should be a summary judgment or at least a summary adjudication of certain causes of action.
Summary Adjudication and Summary Judgment
By the close of discovery, the stage has been set for ultimate resolution of the case. Sometimes the defendant will decide to move for summary adjudication of entire claims or summary judgment of the entire case, arguing that the plaintiff cannot prove a necessary element of one or more of his claims, and therefore those claims should be decided in favor of the defendant. Less commonly, a plaintiff can argue that the evidence conclusively establishes one or more of his claims, which therefore should be adjudicated in his favor. When any of these scenarios is true, the court can apply the controlling law to the established facts in order to issue a judgment or partial judgment in the defendant’s favor. A party can successfully oppose a motion for summary judgment or summary adjudication by showing that there is conflicting evidence on the elements or issues that the movant says must be decided in its favor as a matter of law.
If a defendant loses at summary judgment, it will often find that it is confronted with the prospect of a trial in front of a hostile jury, and this in turn might well lead to a favorable settlement. A plaintiff, faced with the real threat of losing its entire case on summary judgment, might settle on the cheap if it is faced with a persuasive motion for summary adjudication or summary judgment, fearing that if the motion is heard part or all of the case might be tossed out. Thus the filing of an excellent motion for summary judgment can either lead to a good settlement or to early disposition on the merits of the entire case (summary adjudication refers to a disposition of certain claims or issues, as opposed to the entire case).
Our example is perhaps too slanted in my favor: I have a videotape of the theft and might be tempted to take the rare initiative of seeking a plaintiff’s summary adjudication of my claims against my neighbor. He in the meantime will have argued that (1) the videotape has captured someone else other than him stealing my tomatoes; and (2) if it is him in the videotape, he had my permission to enter my garden at night in order to take my tomatoes. This is called arguing a case “in the alternative”. I would argue that he can plead these defenses, but that he is judicially estopped from making contradictory averments of fact. The Court will agree with me on this point and require my neighbor to choose one line of defense. He will likely concede that he was indeed in the garden, but that he had either my express or implied permission to take tomatoes because he had done so many times before without complaint from me. Using these arguments, it is probable that he will barely survive my motion for summary judgment, but I do not like his prospects at trial.
But I will likely obtain summary adjudication against the DuBois Company, at least as to the following issues. First, a supervening event caused most its damages; and, second, most these damages are unrecoverable consequential damages that are too remote from the original contract between it and me.
Yes, there will be a trial, but it will concern only my neighbor’s theft and the valuation of the difference in price that the DuBois Company paid less the price that it would have paid to me for my tomatoes, plus any reasonable incidental charges that it incurred to make the substitute procurement on short notice. This would be a silly, overly simple trial, but the point is that motions for summary adjudication can serve to streamline proceedings, allowing only triable issues of fact to proceed to trial. Motions for summary judgment are used to adjudicate cases in which there is no triable issue of fact because the plaintiff cannot prove a necessary element of any of its claims or because the evidence conclusively proves its claim(s).
In addition to all-important motions for summary adjudication and summary judgment, there are many other kinds of motions that a party can bring both before trial or at trial. A motion is simply a formal request that the court take a certain action in the case. Most motions are made on the court’s regular law-and-motion calendar, but some can be presented on an expedited basis, using the court’s ex parte procedures. Motions can be used to seek protective orders, impose sanctions for discovery abuses, have openly scurrilous matters or claims dismissed, have issues bifurcated at trial, have a special referee or special master appointed, or have any aspect of the case administered or addressed in a manner that promotes justice or judicial economy.
An astute practitioner will often make skillful, sparing use of motions in order to narrow the issues and have the case administered on more sensible terms that tend to favor his client.
Motions in limine are motions made on the eve of trial, typically to exclude evidence, so that its very existence cannot be properly mentioned at trial, but also for a variety of other important purposes.
Other Trial Preparations
Hundred of books have been written on how best to prepare for a trial. Every attorney must find his own approach. At a minimum, you must organize all the claims, defenses, affirmative defenses and cross-claims made in the case, asking the following: what are the elements of each claim or defense?, and what evidence do I have to support or disprove each of these elements? This in turn requires you to organize your evidence, which means arranging to have witnesses appear, organizing your documents and other exhibits, organizing any demonstrative presentations that you wish to make, etc. The attorney will also have to disclose to the other side what witnesses and exhibits he intends to use.
Every good attorney will devote an enormous amount of effort to preparing his case before he takes it to trial. This is the time when you re-organize all the work that you have done until now, while making an action list of everything that you must do in order to try the case. If the attorney is really ahead of the game, he will have begun these preparations at the very start of the case. But even if he has not yet done so, now is the time to complete these pre-trial preparations, all of which should be done for once and all before the trial readiness conference, which is a formal hearing at which the parties submit reports to the court, listing their witnesses and exhibits, and certifying that they are ready to proceed in short order to the trial of the case.
Watching Trials Yourself
To gain a much better understanding of the process, you should go to your local court to watch trials for yourself. Attending actual trials in person is the second best way to learn how a trial is conducted, and any young lawyer who wishes to become a litigator or “trial lawyer” should make a regular habit of watching trials from time to time, especially before his calendar becomes so crowded with his own work that he no longer has the time to go watch. If possible, your staff should accompany you, so that they too can better understand what is all the fuss and busywork back at the office.
What is the best way to learn about trials? Of course, there is only one correct answer — by trying cases yourself!
The Trial of the Case; Post-Trial motion
The case will be tried by the finder of fact, which can be a jury if one has been timely requested and preserved, or a judge or magistrate judge if no jury has been preserved. The judge will preside over proceedings and rule on all evidentiary matters. Once the parties have presented their claims, the judge will decide the case if he is the decider of fact, or he will instruct the jury about the law and its applicability to the jury’s findings of fact. The finder of fact, whether judge or jury, must then decide the case in accordance with the law.
In a jury trial, each side will take great care to select the jurors during a procedure called voir dire (literally, “see to say” or “let’s see these prospective jurors in person and watch what they have to say and how they say it”). Each side will also take great care to persuade the judge to use its preferred jury instructions. To avoid being overturned on appeal, judges usually prefer to use approved boiler-plate instructions, and opposing litigants should stipulate to their use so far as possible, but special instructions are sometimes necessary for critical issues that turn on complicated points of law. A litigant must therefore take great care in preparing any special instruction: juries usually heed the judge’s instructions and try to understand them and rule accordingly, and for key points of law that require a special instruction, you wish to have the judge use your proposed version, which therefore must fairly state the law and provide supporting, self-explanatory citations that confirm this point.
Each side will also submit a trial brief to the judge, so as to state its version of the case succinctly and persuasively, while alerting the judge to anticipated evidentiary disputes or other possible complications at trial.
At trial, the order of presentation proceeds as follows. The plaintiff makes its opening statement, providing a non-argumentative summary of the case and stating what the evidence will prove or tend to prove. The plaintiff should not passively recite his expected evidence, droning on interminably, but instead should present the key facts of the case as compellingly as possible, but without legal argument.
For example, a plaintiff might begin its opening argument as follows: “This case concerns a man who worked day and night — 15 hours a day, six or seven days a week, for three years — to develop life-saving technology that hospitals now use to treat and prevent heart attacks. He succeeded. By trial and sweat and by persevering, he succeeded, developing the technology. The defendant not only stole this technology and wrongly obtained patents for it, but it has since brought several lawsuits to enforce its stolen patents. Here is how it all happened….” Those are facts. You can present them in this manner during opening argument if your evidence tends to prove them. Facts of this kind will command the jury’s attention. Just be sure that your evidence will confirm whatever facts you announce during opening argument. Otherwise, the jury will conclude that you have lied to them, or do not understand your own case, and they will punish you accordingly.
The defendant can then make its own opening statement, and usually should do so, or it can allow the plaintiff to present the plaintiff’s evidence and then make its own opening statement right before presenting its rebuttal evidence. This latter approach should be sparingly or never used in my opinion. cases are sometimes won or lost during the opening statements, and you should give yours at the first opportunity unless the high drama of a belated presentation outweighs the importance of having the finder of fact consider your version of events while hearing the plaintiff’s evidence.
After the plaintiff has presented its evidence, which is called his case-in-chief, the defendant can try to have the case dismissed on a motion for non-suit, arguing that the plaintiff has failed to present sufficient evidence to establish any prima facie claim against the defendant. If the motion is denied, the defendant will present its defense (if it has not yet made its opening statement, it will do so beforehand). If there are more than two litigants, the court will determine the order of opening statements and presentation of evidence.
After all the parties have presented their evidence, any defendant or cross-defendant can move for a directed verdict, urging the judge to refuse to refer the plaintiff’s claims to the jury (or some of its claims).
If the judge declines to issue a directed verdict that resolves all claims, it will either instruct the jury and order each side to argue its case to the jury, or instruct each side to argue its case to the jury, then instruct the jury. This is when each side must its closing argument, during which it will summarize the evidence, explain how the controlling law should be applied to the evidence, invoke legal arguments and basic concepts of fairness, seek to discredit the other side’s contentions, and appeal to the finder of fact to decide the case in its favor. At closing argument, each side’s attorney finally attempts to tie everything together, connecting the dots and making a compelling appeal for his client. It is the culmination of the attorney’s work in the case.
Crucially, during closing argument an attorney can refer only to evidence that has been admitted during the trial and to points of law recited in the jury instructions approved by the judge. To succeed at trial, a litigant often must consider at the very start of the case what it envisions saying to a jury if the case is tried and reached closing argument. Then the litigant must meticulously obtain evidence to support this version of the case so that it can be told to the jury during closing argument.
After closing argument, the finder of fact (judge or jury) retires for deliberation, but in some judge trials (bench trials), the judge unceremoniously rules from the bench directly after evidence is “closed.”
Once the verdict is given, various post-trial motions can be made, such as a motion for judgment notwithstanding the jury’s verdict, or a motion for a new trial. Once the court rules on these motions, the original trial is concluded.
From here appeals can be made. An appellate court might oblige the trial court to retry the entire case or certain aspects of it. In most cases, an appellate court will decline to “disturb the decision reached below,” but not always. Once all appeals have been exhausted or waived, the lawsuit is over, and either there has been a dismissal of claims or a judgment on them or some combination of both. The controversy has thus been resolved, forever and always.
This then is what happens during a lawsuit.
In our example, the trier of fact will easily find against my neighbor on my claims for trespass and conversion after viewing my videotape and listening to my sorrowful testimony, by which I lay the foundation for the videotape and relate my own observation of the matters at issue. The trier of fact will likewise find for the DuBois Company on the limited issue of whether I failed to deliver my tomatoes on time and what contract damages I must pay (the price differential, if any, along with incidental damages). The trier of fact will likewise have an easy time finding that my neighbor should indemnify me for my liability to DuBois Company. The trier of fact will very likely conclude that I bear no responsibility for the harm caused by the e-coli outbreak, which was caused by a supervening event, and which I could not have reasonably contemplated as a probable consequence of my failure to deliver tomatoes when I agreed to sell mine to the DuBois Company.
At the close of trial, a prevailing party is entitled to recover its taxable costs of suit and can recover its attorney’s fees only if it is entitled to do so by statute or under a contract. In this case, there is no such statute or contract, and each side must therefore bear its own fees. In California, the allocation of fees and other litigation costs can be greatly affected by the skillful use of early settlement offers made under Section 998 of the California Code of Civil Procedure, but this is a matter that deserves separate attention.
Article by William Markham, San Diego Attorney. © 2007 (updated in 2022).
Articles on the Law by Mr. Markham
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