The Life Of A Lawsuit
You Do Not Want To Be In A Lawsuit
First let us recognize that being a party to a lawsuit is the last thing anyone wants. Lawsuits consume your time and your money. They drain your emotions. They create stress and tension. You will lose sleep at night. You will lose time from work (or play or children) during the day. They will seemingly drag on and on and on.
Sometimes there is no alternative, but generally, engaging in a lawsuit is a last resort after all other reasonable attempts at resolving the conflict have failed.
Sometimes, of course, you have no alternative. The most obvious is when you have been sued (you are the Defendant). If you do not engage in the suit, you will automatically lose. At other times, you will have no choice but to bring the suit (you are the Plaintiff) – for instance, someone owes you a lot of money and refuses to pay it back after all other reasonable attempts at resolving the conflict fail. In such instances, it may be cheaper to sue, then to forget it – but only after you have tried all other avenues of collecting or resolving the matter.
Sometimes, of course, you have no alternative. The most obvious is when you have been sued (you are the Defendant). If you do not engage in the suit, you will automatically lose. At other times, you will have no choice but to bring the suit (you are the Plaintiff) – for instance, someone owes you a lot of money and refuses to pay it back after all other reasonable attempts at resolving the conflict fail. In such instances, it may be cheaper to sue, then to forget it – but only after you have tried all other avenues of collecting or resolving the matter.
A Lawsuit Should Be An Economic Transaction Not an Emotional One
Being served with a lawsuit triggers an immediate emotional response. Fright, nervousness, stress and anger are all appropriate and usual responses. It is important to deal with those responses promptly, and to get past them. It is here that a competent attorney can provide the most help.
Keep in mind that once you are engaged in a lawsuit, whether as a Plaintiff or a Defendant, you are engaged in an economic transaction, not an emotional one, and there is not necessarily an easy (cheap) way out early.
Protesting that the other side is wrong and that the lawsuit should “go away” is meaningless. The method of proving that the other side is wrong is called a trial. And until the trial is over, a motion for summary judgment is granted, or the case is settled, you are in the lawsuit.
It can be very difficult to examine your alternatives without your emotions getting in the way, but allowing your emotions to rule your decisions (“make the other person suffer” or “teach the other person a lesson” or “I’ll show him….”) is a sure way of spending your money unwisely. That is one reason, an important reason, to consult with an attorney as soon as possible. Their emotions do not get in the way of making sound decisions. It is sometimes a wiser decision to pay the other side (or to reduce your demand) in order to save money – money that would otherwise be spent by you in bringing or defending the lawsuit. Competent attorneys will always consult with you regarding these decisions. As I tell my clients, I make a good living representing clients in lawsuits. It pays my rent, and puts food on my table. But you have your own rent to pay, and your own food to put on the table. In consultation with your attorney, look for the ways out that are the least expensive in total. Do not allow your emotions or desire to “teach the other side a lesson” get in the way of sound economic determinations.
Keep in mind that once you are engaged in a lawsuit, whether as a Plaintiff or a Defendant, you are engaged in an economic transaction, not an emotional one, and there is not necessarily an easy (cheap) way out early.
Protesting that the other side is wrong and that the lawsuit should “go away” is meaningless. The method of proving that the other side is wrong is called a trial. And until the trial is over, a motion for summary judgment is granted, or the case is settled, you are in the lawsuit.
It can be very difficult to examine your alternatives without your emotions getting in the way, but allowing your emotions to rule your decisions (“make the other person suffer” or “teach the other person a lesson” or “I’ll show him….”) is a sure way of spending your money unwisely. That is one reason, an important reason, to consult with an attorney as soon as possible. Their emotions do not get in the way of making sound decisions. It is sometimes a wiser decision to pay the other side (or to reduce your demand) in order to save money – money that would otherwise be spent by you in bringing or defending the lawsuit. Competent attorneys will always consult with you regarding these decisions. As I tell my clients, I make a good living representing clients in lawsuits. It pays my rent, and puts food on my table. But you have your own rent to pay, and your own food to put on the table. In consultation with your attorney, look for the ways out that are the least expensive in total. Do not allow your emotions or desire to “teach the other side a lesson” get in the way of sound economic determinations.
General Flow of a Lawsuit
Having said that, keep in mind that every lawsuit has a flow and a life of its own. But there are some general milestones along the way. In the discussion that follows, I draw generally upon the procedure in the Los Angeles Superior Court, but it is generally applicable to most court systems with the exception that the times may vary. You must consult an attorney familiar with your area and court system for specific guidelines and times.
A Lawsuit Begins With The Filing Of A Complaint By The Plaintiff
This is the document that sets forth the reason that the Plaintiff wants what is requested, and how much is being requested. The statements in the complaint (the allegations) are called the “cause of action”,
When the complaint is filed with the court, the court issues a summons – an order that must be “served” (generally personally delivered) on all other parties in the lawsuit (the defendants) that they must appear in court to answer the allegations of the complaint that are made by the Plaintiff. “Appear” does not mean that they have to yet show up in person – rather that they must file some sort of document that responds to the allegations of the Complaint.
When the complaint is filed with the court, the court issues a summons – an order that must be “served” (generally personally delivered) on all other parties in the lawsuit (the defendants) that they must appear in court to answer the allegations of the complaint that are made by the Plaintiff. “Appear” does not mean that they have to yet show up in person – rather that they must file some sort of document that responds to the allegations of the Complaint.
The Appearance By The Defendant
Generally, but not always, this document is the Answer, although there are other types of responses that can be made by a Defendant. The response is due (in California) 30 days after the summons and complaint are served upon the Defendant (except in some specific types of cases – for instance unlawful detainers where 5 days is the rule). The Summons will say how long the defendant has to make an appearance after service of the summons and complaint.
If a response is not filed with the court in that time then the Plaintiff can request the court to enter the default of the Defendant (make an entry that the Defendant did not respond) and ask the court to enter a judgment as requested in the Complaint. Thus it is very important for a Defendant not to ignore a complaint, but rather to respond to it (make an appearance) within the time required.
If a response is not filed with the court in that time then the Plaintiff can request the court to enter the default of the Defendant (make an entry that the Defendant did not respond) and ask the court to enter a judgment as requested in the Complaint. Thus it is very important for a Defendant not to ignore a complaint, but rather to respond to it (make an appearance) within the time required.
An Attorney Is Not Required For An Individual Defendant To Make A Response, But Is A Wise Choice. An Attorney Is Required For A Corporation Or Association To Make An Apearance
As a practical matter this means hiring an attorney as soon as possible so that any defenses can be raised with the court. It is not required that an attorney do this, unless the defendant is a corporation or association. Individuals can represent themselves in court. However, remember the old adage – he who represents himself in court has a fool for a client. It is true.
Indeed, consulting with an attorney is almost a requirement in today’s legal system. There may be many technical reasons that a defendant might win which may not be known to the defendant. An attorney should always be consulted. Indeed, there are other actions that can be taken other than simply answering the complaint – various sorts of motions that might be filed – which are almost certainly beyond the expertise of a non-Attorney, and which, if successful, could end the suit at that point. Such actions should always be explored with an attorney.
Indeed, consulting with an attorney is almost a requirement in today’s legal system. There may be many technical reasons that a defendant might win which may not be known to the defendant. An attorney should always be consulted. Indeed, there are other actions that can be taken other than simply answering the complaint – various sorts of motions that might be filed – which are almost certainly beyond the expertise of a non-Attorney, and which, if successful, could end the suit at that point. Such actions should always be explored with an attorney.
The Case Management Conference
Assuming that there are no motions to be brought, after the answer is filed, the next step in the life of a lawsuit is an appearance (by the attorney or the client if representing himself, usually in person, but sometimes by telephone) so that the judge can become familiar with the case, and set the various dates for events. This is called the Case Management Conference. It usually takes place 90 to 180 days after the filing of the complaint, depending on the calendar of the court. At the Case Management Conference, the court usually sets dates for the completion of any required or requested mediation (a meeting of the parties, with a neutral third person to try to resolve their differences) if the parties believe that mediation might help them to resolve the matter. It sets a date for a Mandatory Settlement Conference (where the court or another judge tries to get the parties to settle their case – this usually takes place close to trial when the parties are supposed to have a better understanding of the other person’s position).
It also then sets a date for the Trial of the matter. This is generally, but not always, within 12 to 15 months after the filing of the complaint.
As a rule, these dates are not easily changeable. You should assume that these dates are fixed.
It also then sets a date for the Trial of the matter. This is generally, but not always, within 12 to 15 months after the filing of the complaint.
As a rule, these dates are not easily changeable. You should assume that these dates are fixed.
Discovery
Up to 30 days before trial, the parties can engage in what is called discovery. The basic forms of discovery are
(1) Interrogatories (written questions to the other side that must be answered in writing within 30 days);
(2) Requests for Admission (requests that the other side admit that certain facts are true so that they need not be proven at trial);
(3) Requests for Production of Documents (where the other side is asked to give copies of the relevant documents to you); and
(4) Depositions (an opportunity to question the other side in person).
By far the most expensive of the procedures are depositions. They are usually done only after the other forms of discovery have been accomplished so that they can be as efficient and as short as possible in order to save costs.
Each of these forms of discovery has only one purpose – to determine what position the other side will take at trial. It is NOT appropriate to use discovery to annoy the other side or to get them to spend attorney fees. If you do not need to use them, do not. Sometimes you know what the other side will say at trial. Sometimes it does not matter. The forms of discovery that are necessary, and when they should be undertaken, are decisions to be made by your attorney, but always in consultation with you, the client. Remember, each costs you money as well. Each side has the right to engage in discovery.
(1) Interrogatories (written questions to the other side that must be answered in writing within 30 days);
(2) Requests for Admission (requests that the other side admit that certain facts are true so that they need not be proven at trial);
(3) Requests for Production of Documents (where the other side is asked to give copies of the relevant documents to you); and
(4) Depositions (an opportunity to question the other side in person).
By far the most expensive of the procedures are depositions. They are usually done only after the other forms of discovery have been accomplished so that they can be as efficient and as short as possible in order to save costs.
Each of these forms of discovery has only one purpose – to determine what position the other side will take at trial. It is NOT appropriate to use discovery to annoy the other side or to get them to spend attorney fees. If you do not need to use them, do not. Sometimes you know what the other side will say at trial. Sometimes it does not matter. The forms of discovery that are necessary, and when they should be undertaken, are decisions to be made by your attorney, but always in consultation with you, the client. Remember, each costs you money as well. Each side has the right to engage in discovery.
The Trial
If you have not yet been able to resolve the matter, you will then go to trial. This is the opportunity for you to tell your story to a jury (or the judge). The other side gets to tell its story too. Then the jury (or the judge) must determine what the facts are and determine who shall prevail in the matter. You are, in essence, relying on the opinions and judgments of twelve strangers to determine the outcome of your matter.
Predicting the outcome of a trial is, at best, risky business. The outcome turns on more than just the story told. It depends on the prejudices of the jury and the judge, how you are perceived by the jury and the judge, the nature of the story you are telling, and a host of other, largely intangible factors. No competent attorney would ever guarantee the outcome of a trial.
Indeed, it is this unknown result of a trial that makes a negotiated settlement even more important. At least in that way, you will have the power over the outcome of the dispute. It is never too late in the process to come to an agreed settlement with the other side, and it is never too late in the process to try.
Predicting the outcome of a trial is, at best, risky business. The outcome turns on more than just the story told. It depends on the prejudices of the jury and the judge, how you are perceived by the jury and the judge, the nature of the story you are telling, and a host of other, largely intangible factors. No competent attorney would ever guarantee the outcome of a trial.
Indeed, it is this unknown result of a trial that makes a negotiated settlement even more important. At least in that way, you will have the power over the outcome of the dispute. It is never too late in the process to come to an agreed settlement with the other side, and it is never too late in the process to try.
The Above Is Not Intended To Constitute Legal Advice. Mark Brifman only gives legal advice in person to those persons who have agreed to become his clients. The information is provided solely as a general overview of the flow of a lawsuit in order that one may gain a better understanding prior to consultation with Mark Brifman. Lawsuits are serious matters, whether you are a Plaintiff or a Defendant. They are highly technical in their procedures. You act at your peril if you engage in a lawsuit without proper legal representation. It is recommended that you get legal help.
Recall – It Is Easier, And Less Expensive, To Keep You Out Of Trouble Than It Is To Get You Out Of Trouble. See Me First.
If you need help regarding a lawsuit, contact me:
Mark Brifman
Brifman Law Corporation
Mail: P.O. Box 950447
Mission Hills, Ca. 91395-0447
Office: 15545 Devonshire St., Ste. 311
Mission Hills, CA. 91345
Phone: (818) 920-2113 x 101
Fax: (877) 920-5464
Website: www.brifmanlawoffice.com
