ANATOMY OF A CIVIL LAWSUIT: WHAT THE WELL-COUNSELLED CLIENT SHOULD KNOW

by William Dickerman, Esq.

     In our firm’s civil litigation practice, we are often surprised by how unfamiliar many of our new clients are with the nature of litigation—which is to say, lawsuits. Civil lawsuits are all cases that do not involve government prosecutors’ charging of criminal behavior, and include such matters as breach of contract and other business issues, real estate claims, housing discrimination, personal injury(negligence), invasion of privacy, and trade secrets infringement. Convinced that the happiest client is the best-informed client, who will appreciate his (“he” and “his” include “she” and “her”) attorney’s goals and process, and thus aid the attorney in aggressively advocating the client’s interests, we offer this primer of the several phases of the typical business or negligence lawsuit filed in California superior courts.

1. Pre-Litigation Preparation

     Every case is different; every client is, too, with his own concerns, goals, and expectations. In order for the attorney to implement a plan that will get the client where he wants to go, the attorney initially must listen attentively to the client. At this early stage, the lawyer should be garnering the facts of the dispute to determine the client’s rights and obligations toward his adversary; the lawyer should also try early to discover what resolution would truly satisfy the client. While money damages might be the desired remedy in one case, a client in another case might care most about maintaining a lucrative business relationship with his opponent, and therefore seek a friendly compromise. The lawyer should aim to advocate for the result that his client desires, not one that would most satisfy the lawyer’s own agenda. The client should make sure he and his counsel are on the same page; if they are not, the client should find someone more keenly attuned to him.

2. The Pleadings

     After the lawyer has obtained the facts and other information he needs, he will develop a theory on which to hang the case, adorned by one of more causes of action. For example, a breach of contract action might involve claims other than simply contract breach, including breach of the covenant of good faith and fair dealing, and “common counts” for the recovery of money. It might also turn out that the promisor never intended to do what he said he would, thus supplying a basis for fraud. The client should reveal all details to ensure that the complaint—the charging document filed in court that officially starts the case--will include all appropriate charges. The attorney and client together should determine which counts to pursue. 

     One early key decision will be whether to file the case as one of “limited” or “unlimited” jurisdiction. In the former, the plaintiff will not be able to recover damages over $25,000, excluding interest, costs, and attorneys’ fees. If at some point in the case the court concludes that a case that was filed as “unlimited” (for over $25,000) should have been filed as “limited” because the plaintiff will not be able to win more than $25,000, the court may reclassify the case as “limited.” This article discusses procedure in “unlimited” actions, only.

     The claim will be drafted into a "complaint," which, once approved by the client, will be filed in court and then served on the defendant, usually by a process server. The complaining party is known as the plaintiff. Depending on the manner of service, the defendant generally will have 30 or 40 days within which to respond in writing. If the causes of action are correctly pleaded and there are no legal flaws on the face of the document, the defense will likely file an “answer” to the complaint. The answer usually consists of (1) a “general denial”—a sentence that simply denies all the allegations in the complaint—and (2) one or more “affirmative defenses,” allegations that even if the defendant did what he is accused of, he should not be held liable. For instance, if the complaint was filed after the expiration of the statute of limitations, then the defendant will be off the hook. Another typical defense is that because the breached contract was oral and a statute required it to be in writing (such as for purchase of real estate), it is unenforceable. While the plaintiff has the burden to prove the claims in the complaint, the defense bears the burden to prove the affirmative defenses. 

     The defendant’s counsel might conclude that the complaint is legally flawed and subject to partial or complete dismissal if attacked. The most common vehicles to challenge the complaint are the “demurrer” and “motion to strike.” Say, for example, that the breach of contract claim does not allege that the plaintiff suffered damage. Since no action may exist without alleged damages, a demurrer should be sustained on that ground. If the shortcoming is something that can be cured by re-pleading, then the court will sustain the demurrer “with leave to amend,” enabling the plaintiff to file an amended complaint. Because California law is extremely liberal in allowing plaintiffs to try to get it right, judges will not take the axe to a cause of action or the entire complaint unless it is clear that there is no way to amend the complaint—which would be the situation if, for example, the statute of limitations had already expired. It is therefore not unusual to see multiple amended complaints, as a plaintiff tries his best to get around his pleading difficulties. 

     The defendant might also employ a motion to strike, to eliminate certain pleaded material other than that targeted in a demurrer. If, for example, the plaintiff alleges an entitlement to recover punitive damages for breach of contract, the defendant might move to strike those allegations since the law proscribes such damages for contract breach. A motion may be used to strike any irrelevant, false, or improper matter from a pleading. Both a demurrer and motion to strike may be used against not only a complaint but also an answer or cross-complaint. Since it can be quite costly to do the research and drafting of demurrers and motions to strike, effective lawyers usually employ such tools only when they are likely to accomplish something significant. There is not much point in challenging a complaint that can easily be re-pleaded. And sometimes the defendant is better off not educating the plaintiff about his pleading flaws.

3. Discovery

     Once the pleadings have been resolved and the parties know what the legal issues are, both sides will typically engage in the discovery process to learn the factual bases of the claims and defenses, and the identity of witnesses and potential evidence, and to obtain that evidence. The liberal discovery rules enable all parties to leave no stone unturned in procuring the evidence supporting the adversary’s case. The hope is that once the parties can fully evaluate the case, they will be able to settle without trial. And if there is to be a trial, no party should be surprised by the evidence his opponent presents. 

     One of the useful discovery vehicles is written interrogatories, which are questions calling for information that is relevant to the case. The draftsman may spread his net very wide to obtain all sorts of data that may never be used at trial. There are pre-printed form interrogatories approved by the courts, calling for basic facts best suited for auto accident and other negligence cases. Often counsel will draft “special interrogatories,” inquiring into matters specific to the case. Lawyers will also propound demands for production of documents and things, or to gain entry to examine a relevant location. In a contract case, for example, the lawyer will want to have the written contract, any amendments or modifications, all correspondence about the contract, and everything else that might shed light on the circumstances surrounding the alleged breach. Another valuable tool is “requests for admissions,” which seek to streamline the case by having the parties admit to certain facts or the authenticity of documents. To the extent the matters are denied rather than admitted, follow-up interrogatories will often be served in order to expose the factual and evidentiary basis for the denial. 

     Often the most significant discovery method is the deposition, where the witness is placed under oath as if he were testifying in court, and must answer up to a day’s worth of questions. The deposition of a party is most effective usually either before the party has concocted his story or after the deposing lawyer has fully acquainted himself with the opponent’s case. The most common reason to depose is to get the facts from the horse’s mouth, unfiltered by his lawyer. A second purpose is to see what kind of witness the deponent is likely to be at trial. A third reason, and often the most important, is to obtain damaging admissions from the witness. If, for example, despite the complaint’s allegations, the plaintiff were to testify that he, not the defendant, had breached his promise, that would have a decisive impact on the case. Since deposition testimony may be used against a party before and during trial, it is critical that the deponent be thoroughly prepared by his attorney, as to both how to deal with specific questions, and how to conduct himself at the deposition. Few things in a trial are more devastating than a witness’s being confronted by statements he made in deposition that are contrary to his trial testimony. 

     Here is an example of how important deposition preparation can be. In a recent lawsuit to recover money under a contract between our client and a company that had hired him for high-stakes computer consulting, we deposed the defendant’s CEO, who had previously admitted to deciding not to pay our client. In written discovery, he had alleged that our client had charged for unneccessary services, and failed to complete work. At the deposition, it was obvious he had not been prepared for the big questions. Incredibly, he admitted he had no information whatsoever to support any of those reasons for nonpayment. He made other damaging admissions that could easily have been avoided with some pre-deposition prep. Consequently, had we proceeded to trial (which we were ready and eager to do), we would very likely have prevailed. As a result, the case settled with a payment to the client of more than the total he had invoiced. 

     Another example of the potentially ruinous effect of a deposition, especially when the lawyer has not prepared either himself or his client, is a case in which we represented a property owner who had a ditch into which the plaintiff had fallen. Unbeknownst to the plaintiff, our client’s security camera had caught the entire incident on tape, and showed that the accident was faked. We purposely arranged to depose the plaintiff before he learned about the tape and could figure out a way around it. Sure enough, the plaintiff lied about the incident. The case is ripe for dismissal, and the plaintiff will be vulnerable to a costly lawsuit for malicious prosecution. 

     Because depositions can be so powerful, much thought should precede them. They are also quite expensive. But the price is often worth the result; in our decades of experience, depositions are the most important pre-trial arrow in the litigator’s quiver. Other discovery weapons include subpoenas to force non-parties to provide information and documents; independent medical exams to evaluate a plaintiff’s alleged physical and mental injuries; and expert witness information exchange, to learn opposing experts’ opinions and their bases. The client should discuss a discovery plan with his lawyer. Lawyers often will not have a plan but propound discovery ad hoc. That aimless approach is rarely the most effective; the client’s inquiring about a plan will, hopefully, result in the lawyer’s designing one. 

     While the rules of discovery are laudable and meant to grease the wheels of litigation, encourage settlement, and avoid surprise at trial, battles frequently erupt when, for example, the opposing lawyer believes that he has failed if he supplies the other side with anything useful. Such attorneys make it all but impossible to do discovery without resorting to costly court motions. This can be especially painful in Los Angeles County Superior Court cases, since the courts’ financial crisis has prevented motions to compel discovery (and most other motions) from being heard for many months, often necessitating rescheduling the trial.

4. Law and Motion Practice

     We previously discussed the use of demurrers and motions to strike, vis a vis the pleadings, and discovery motions. A party may make many other requests of the court. The process is often referred to as “law and motion.” One motion that is handy for either whittling down the answer or complaint, or getting rid of them altogether, is the motion for judgment on the pleadings. This is similar to the demurrer, but it can be used at any time, whereas the demurrer is available only for a short time after filing of the pleading that it attacks. In one recent case, we decided for tactical reasons not to demur to the vulnerable complaint. After the discovery phase concluded, we made a motion for judgment on the pleadings, attacking many of the causes of action on the same grounds that we could have with a demurrer. But by then we had obtained discovery and knew that the plaintiff would have a difficult time making up new facts to allege in an amended pleading. The court granted the motion, throwing out some of the many causes of action that had no legal basis, and allowing plaintiff to amend other claims. The case is now much more manageable and less threatening. 

     The mother of all pre-trial motions is the motion for summary judgment. Either side may use it to get all or parts of a complaint or answer dismissed (if it seeks only partial dismissal, it is called a motion for summary adjudication). The motion asks the court to conclude that the opposing party’s leadings are unsupported by evidence, and that therefore the action should be limited or ended. The moving party argues that regardless of the pleadings, there is no need for a trial to resolve the facts. Another way of putting it is that the moving party contends that as a matter of law, not fact, he should prevail. Since the motion argues that the judge should decide all or part of the case without a trial— either by the judge or the jury—a very exacting process is used. The opposing party gets a very long time to respond; many papers must be filed and responded to. The filing fee alone is $500 due to the great amount of time expended by court personnel (judge and research lawyer).

5. Trial Preparation

     A diligent lawyer will have been preparing for trial since his first consultation with the client. A trial attorney is continually thinking about what he needs for trial and how the various pieces of the litigation puzzle will fit together. Once the discovery has been completed and at least most of the motions have been decided, the lawyers will devote more concentrated time to preparing for trial. They will have to determine which documents and other things they will likely use at trial; they may prepare special exhibition of key evidence; they will decide which witnesses to call to testify; they may subpoena witnesses; they may draft motions to exclude certain evidence from the trial; they may draft jury instructions; they will carefully review all discovery; they will outline their witness examinations; they will fully prepare their clients and affiliated witnesses to testify; and they will develop their opening statements and closing arguments. In the major production that is a trial, the lawyer wears the hats of producer, writer, director, and actor.

6. Trial

     The culmination of all the work, which may have taken years to complete, is the opportunity to have an impartial fact finder—either judge or jury—decide the facts. The judge alone determines the legal issues; if there is no jury, he decides the facts, too. Often the parties will have attended one or more conferences to try to settle without trial, supervised by a third-party mediator hired by the parties jointly, or a judge. If the parties are motivated to settle, they will likely do so. Perhaps the strongest incentive is the risk of spending a great deal more money and either losing the case or not winning the desired amount. Judges do not usually “split the baby”: One side is likely to win all, and the other to lose all. 

     In our experience trying cases over several decades, the parties go to trial rather than settle because they do not view the case in the same way. If each side evaluates the same facts differently, then each is likely to believe that the fact finder will favor him. One side will be sorely disappointed. In one illustrative and poignant case, we represented an elderly woman who had been accused of beating and severely injuring her octogenarian neighbor. The plentiful evidence, mostly medical reports and psychological evaluations, suggested the plaintiff had suffered a debilitating stroke and that her recollection of the cause of her injuries was duly impaired. It seemed clear to us that our client was not responsible for the plaintiff’s woes, and therefore she rejected the pre-trial $2 million settlement demand. We had offered $20,000 to settle long before trial, to avoid the huge expense and risk of litigation. Just before the lawyers were about to make their summations, the plaintiff’s counsel said he would be surprised if the judge awarded his client less than $100,000. That evaluation was stunning (and a bit nerve-racking) in view of the evidence. An hour later the judge awarded the plaintiff only $12,000. 

     About 95% of cases settle before trial. The best way to increase the odds of a favorable settlement is to be ready to try the case. Many litigators assume the case will settle at some point, so they don’t really prepare to try the case. That is a mistake if for no other reason than that the other side will sense the lack of resolve, which will lead to either a poorer settlement or an unintended trial.

7. Post-Trial

     Ultimately there will probably be a verdict by the judge or jury. Someone will have won, and the other lost. Members of the jury may be willing to stick around for a post-mortem with counsel. It can be quite daunting to hear from the jury that they decided a case different from the one the lawyer tried. That is why many lawyers don’t talk to the jury after the trial. During the trial there may have been motions by each side arguing that the state of the evidence requires a ruling in his favor. Sometimes the judge directs a verdict for one side; most often the case proceeds till the end. After a decision has been made, the parties have more opportunities to challenge the result. One common way is via motion for a new trial, based on any one of several procedural or substantive grounds. Another is a motion notwithstanding the verdict, which seeks to nullify the jury’s finding due to the lack of evidentiary support for it.

8. Appeal

     If one or both of the parties believes he has gotten a raw deal at trial, he may take his case to the Court of Appeal. Every litigant is entitled to this first-stage appeal. It is an expensive and time-consuming process, and chances of a reversal on appeal are not good. If still dissatisfied, a party may petition for a hearing by the state Supreme Court, but it is highly unlikely that that court will accept the case for review.

Conclusion

     We have focused entirely on civil procedure, not the substantive law, because procedural rules govern every step of the litigation, trial, and appeal process. It is critical that your attorney have a thorough grasp of the local court rules, state Rules of Court, and the statutes in the Code of Civil Procedure—familiarity that comes only with long experience in many different situations. Knowledge of the rules and how to apply them will enable your lawyer to create pitfalls for his opponent and avoid them for you; unawareness of the complex procedures may well result in your not even getting your “day in court” to prove your case or defend against the other side’s. Since many, if not most, cases are decided on procedural grounds, our best advice is to retain counsel who has been many times around the block. 

 

William Dickerman, the principal attorney of Dickerman & Associates, has been litigating business, real estate, and other commercial and personal lawsuits for over 30 years in and around Los Angeles. For more information, go to www.dickermanlaw.com. This article is not meant to constitute legal advice; please consult and rely only on competent counsel after a thorough review of your individual circumstances.

© William Dickerman 2015 - All Rights Reserved.