Anatomy of a Law Suit
I. Pleading
A. The Original Pleading
A lawsuit begins with the plaintiff filing a Complaint in state court or federal district court.
The nature of the causes of action or claims pled in the lawsuit dictates whether the case will be heard in state or federal court. A Complaint" is comprised of several sections:
-
Style or Caption
- Jurisdiction and Venue
- Parties
- Background Facts
- Causes of Action
- Relief or Remedies Sought
Generally, the "Style", "Parties", "Background Facts", "Causes of Action" and "Relief and Remedies" sections are of most interest to defendants. The sections setting forth the court's "Jurisdiction" and "Venue" are purely procedural and may not have immediate meaning to non-attorneys.
1. Style or Caption
The "Style" or "Caption" (the block on the first page) identifies the name of the plaintiff(s); the name of the defendant(s); the state or federal district court in which the lawsuit is filed, and; the case number.
2. Parties
The "Parties" section will generally identify the individual(s) who is/are suing and being sued. This section should also state whether the defendant is being sued in his or her individual capacity and/or official capacity if the defendant works for a governmental entity.
a. Individual Capacity
A person may be found personally liable if he or she acts outside the course and scope of his or her duties. A defendant sued in his or her individual capacity may be personally responsible for paying a money judgment that exceeds insurance or other indemnification coverage. , public and private, generally will not be indemnified for willful or wrongful acts or gross negligence, if the court or jury finds the action upon which the claim is based was taken in bad faith with conscious indifference or with reckless disregard.
b. Official Capacity
An employee-defendant sued in his or her official capacity is not personally responsible for any portion of a judgment. Again, the capacity in which an individual is sued is applicable only to public employees.
3. Background Facts
This section of the petition generally contains the "who, what, when, where, how and why" of the lawsuit. This recitation of plaintiff's version of the incident or occurrence upon which the lawsuit is based may or may not be accurate. Nevertheless, it provides insight into what the plaintiff believes occurred and into how he or she feels about the individual being sued or about the way he or she was treated.
When reviewing this section, take note of all documents mentioned, dates cited and direct quotes. Also, begin thinking about a timeline or chronology of events to discuss with the defense attorney as soon as possible.
4. Causes of Action
A cause of action is the statute, common law or constitutional provision upon which the plaintiff bases a claim for relief.
The petition or complaint may identify a state or federal statute or constitutional amendment that the plaintiff believes was violated.
A plaintiff may amend the petition or complaint to include additional causes of action during the course of the lawsuit. In state court the petition may be amended as late as seven days before trial. In federal court the deadline for amending the complaint is established by the judge.
5. Relief or Remedies Sought
This section will identify the amount of damages and other relief sought, such as reinstatement or other injunctive relief. The money figure stated in the petition or complaint often has no relationship to the amount of harm the plaintiff actually suffered or the amount of money he or she expects to recover if the lawsuit is successful.
B. The Summons
The summons is the official notification that an individual has been sued. It is part of the "service of process." A Summons is usually personally delivered to the Defendant. However, if the Defendant cannot be found or is evading service, the Court permits a Summons to be published in the newspaper.
C. The Response
Generally, a defendant must respond to a Complaint no later than 30 days after receipt of the summons. The response may be in the form of an answer or another form of responsive pleading.
1. The Answer
In the State of California, if the lawsuit is filed in state court, the answer may be nothing more than a general denial of all of the allegations in the petition.
If the lawsuit is filed in federal court the answer must specifically admit or deny the allegations made in the complaint. The answer must also identify any affirmative defenses that the defendant intends to raise. This requires that an attorney meet with the defendant to discuss the facts of the case.
2. Other Responses
Regardless of which jurisdiction in which the lawsuit is filed or whether an answer is filed, the first several weeks after receipt of a summons may be filled with the filing of various pleadings or motions and the scheduling of hearings attacking the petition. The primary purpose of the pleadings and/or motions is to have the case dismissed without further action or to lay the foundation for dismissal.
Two common responsive pleadings filed in California state court are the: Demurrer and Motion to Strike. common motion filed in federal court is the Rule 12(b)(6) Motion to Dismiss.
If a lawsuit alleges violations of federal statues or the United States Constitution but is filed in state court, the lawsuit may be removed to federal court.
II. Discovery Process
After the initial flurry of activity, a lawsuit may appear to go into a phase of relative inactivity as the discovery phase begins. "Discovery" is nothing more than one party attempting to find out (discover) facts about the opposing party's claims or defenses from the opposing party and/or witnesses. The discovery process may include several stages.
A. Initial Disclosure is required in most federal district courts. The parties are generally required to exchange documents that may have some bearing on the claims and defenses raised in the initial pleadings and to identify individuals with knowledge of facts relevant to the case.
B. Informal discovery is merely the attorney talking to friendly or non-hostile witnesses who may have information about the case and obtaining documents that have a bearing on the claims and possible defenses in the case.
C. Formal discovery includes all of the procedural vehicles for obtaining information about the case from the opposing party (this includes requests to admit certain facts).
There are four commonly used formal procedures for obtaining information from the opposing party. As a defendant, you can expect to receive one or more of the following types of formal discovery:
1. Interrogatories
Interrogatories are written questions asking for information about certain incidents, occurrences, positions taken by the party, policies, procedures, etc. The answers provided to these questions can be used as evidence at trial.
2. Request for Production
A party may request certain documents that he or she believes is relevant or will lead to the discovery of admissible evidence. The documents requested may include such items as copies of e-mail, personnel files, computer disks, medical records, education records, income tax returns, and other financial documents. It is important that you provide your us with all documents in your possession, custody or control that may have a bearing on the claims or defenses as soon as possible.
The documents must generally be provided no later than 30 days after receipt of the request. Even if the documents are located after the deadline for responding, they should be turned over to your defense counsel. The state and federal Rules of Civil Procedure require the parties to supplement responses. Also, if the documents are not provided to the opposing party, they may not be used as evidence at trial.
3. Requests for Admission
Requests for Admissions are requests for a party to admit or deny specific facts alleged by the opposing party. Although not a true formal discovery device, requests for admission are often used to limit the issues in a case and to discover a party's true position on an issue.
4. Depositions
Depositions are a formal, direct question and answer session with the opposing attorney (usually in the presence of the plaintiff). At a deposition, the opposing attorney is allowed to ask questions about the case while the deponent is under oath. The questions and answers are recorded verbatim by a court reporter and transcribed for use during the litigation. The deposition may also be video taped. The testimony provided during the deposition may be used as evidence at trial or for any matter related to the litigation.
The deposition may be the most important pretrial event of the case. Often, case strategy and ultimately, case resolution is dictated by the defendant's performance and his or her ability to handle questioning by the opposing counsel.
The deposition process should be viewed as three separate stages: deposition preparation, testimony, and post-deposition review.
Deposition Preparation
Preparation for a deposition is as important as the deposition itself. It is imperative that a defendant be available to thoroughly prepare for the deposition.
Preparation includes, reviewing the facts of the case, reviewing all relevant documents, familiarizing oneself with the deposition process and discussing how to handle troublesome issues and aggressive attorneys.
Testimony
The opposing counsel will have the opportunity to inquire into a broad range of subjects, including, but not limited to questions about the incident or occurrence that is the basis of the lawsuit, the defendant's personal life and the defendant's personal assets (if the defendant is sued in his or her individual capacity). The questions need not be relevant to the litigation so long as they are reasonably calculated to lead to admissible evidence.
A deponent should remember three important rules when testifying at a deposition:
Tell the truth;
Answer the question asked; and
Do not volunteer information.
A judge is not present at the deposition. Therefore, objections made during the testimony are made only for the record and will be ruled upon at the time of trial or when otherwise necessary. Attorneys may only object to the form of the question and/or the responsiveness of the answer or if the question calls for information protected by a recognized privilege. If the question seeks privileged or confidential information, your attorney will object and advise you not to answer.
Post-Deposition
After the deposition is completed the deponent will have an opportunity to review and sign the deposition. By signing the deposition you are verifying that the transcript correctly reflects the answers that you gave. Changes to the transcript should be made on the errata sheet that will be attached to the deposition. Do not make corrections or changes directly on the transcript.
Keep a copy of the deposition and any changes for your personal records. Deposition testimony may be used in other proceedings.
III. Settlement
Most cases should be settled. Never take a position that a case should be not be settled unless you are absolutely sure you will win. A defendant should not assume that the defense counsel believes he or she committed the acts alleged by the plaintiff or is responsible for the plaintiff's injury and/or damages because the defense counsel recommends settling a case. If you are a plaintiff. remember that there is a downside risk to leaving money on the table. In determining whether to settle a case, an experienced attorney understands that occasionally, "bad things happen to good people." In all instances, a bad settlement is better than a good lawsuit. Settlements are always better than verdicts because they give peace of mind and certainty of result.
Don't look for justice. Look to resolve a problem, not win a fight. Litigation is not a tool for vengeance. It is to compensate people for legally cognizable claims for damages or to obtain
or prevent the occurrence of future problems.
A. Informal Settlement Discussions
The attorneys exchange letters and phone calls in an attempt to resolve the case. If they are successful in doing do, the parties sign a settlement document, the Defendant issues a check, and the case is dismissed.
B. Mediation
Many jurisdictions are now requiring the parties to formally mediate the lawsuit before trial. On occasion, preparing for mediation approaches that of preparing for trial. Whether the parties willingly submit to mediation or are ordered to do so by the Court, the mediation must be approached in good faith. This generally means the parties must be willing to settle the case and have authority to do so.
Mediation gives the parties an opportunity to present their case to a neutral person in a less structured forum than in a courtroom. Generally the parties go to mediation after a significant amount of discovery has been completed and they have had an opportunity to assess the evidence in the case, including the credibility of witnesses and parties, and the value of certain evidence.
In order to encourage candid dialog about the case, all discussions during a mediation session are confidential and may not be disclosed by the mediator or by the parties attending the mediation. Furthermore, any information learned about the case may not be used at trial if the mediation fails.
Individuals sued in their individual capacity should attend the mediation and actively participate in preparing for the session. In some instances, the mediator may request or require that the parties, as well as the attorneys, make an opening statement at the mediation session.
IV. Trial
Very few lawsuits make their way to trial. If a case reaches this stage, the time, energy, resources spent preparing for the trial and the anxiety generated will increase dramatically.
The trial is comprised of several important stages:
- Voir dire or jury selection
- Opening statements
- Plaintiff's case-in-chief
- Motion for Judgment as a Matter of Law
- Defendant's case-in-chief
- Plaintiff's Rebuttal
- Motion for Judgment as a Matter of Law
- Charge to the Jury
- Closing Arguments
- Jury Verdict
- Judgment
V. Post Trial
A. Collection
If the plaintiff prevails he or she may be entitled to attorney_s fees and court costs in addition to any money judgment or injunctive relief. If monetary damages are awarded the plaintiff may propound post-judgment discovery in an effort to ascertain the amount and location of a defendant_s assets.
B. Appeal
Either party may appeal an adverse judgment.
If there were legal errors at trial, or there was insufficient evidence to support the verdict, you may be entitled to appeal the result. Generally, cases tried to a verdict are seldom reversed. Appeals are expensive and the outcome uncertain.
SHOULD YOU HAVE ANY QUESTIONS, PLEASE CONTACT OUR OFFICE! DO NOT EVER RELY ON FRIENDS, RELATIVES, OR OTHER NON-ATTORNEYS FOR ADVICE ABOUT WHAT YOU SHOULD DO ON ANY LEGAL MATTER.
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