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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.
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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."
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. |
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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.
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 client's
personal injury and wrongful death cases as a result of motor
vehicle accidents.
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.
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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
formal legal advice nor the formation of a lawyer/client
relationship.
