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