Civil Litigation

<<Back to Practice Areas

Do You Want to Sue Someone?  What To Expect If You Decide to File a Lawsuit

When a person commits a crime, in theory they have offended the people of the state, and it is the responsibility of the state, through its agent the district attorney, to prosecute the alleged offender.  On the other hand, when one person wrongs another person, the person who has been wronged can seek redress for the wrong by bringing a lawsuit in court on their own behalf.  In other words, the legal system has a criminal side, and what is known as a “civil” side.   Of course, many wrongs can be both criminal and civil (For example, recall O.J. Simpson, who was acquitted of the crime of murder, but lost the wrongful death lawsuit brought by the family of one of his victims).

Many of the wrongs that serve as the foundation of a civil lawsuit fall broadly into one of two categories:  contract or tort.   In contract cases, two or more parties enter an agreement where both sides agree to do certain things.  When one side fails to do what they agreed to do, they are said to have breached the contract.   If the party who did not breach the contract was damaged by the breach, they can sue the party who breached to recover the damages.

In tort cases, when a person has a duty towards another person, the duty is breached, and the breach causes injury or damage to the other person, then the injured party can sue for damages.   For example, automobile drivers on public roads have a duty to operate their cars in a safe and reasonable manner, and to observe the various traffic laws.   When a driver fails to live up to this duty, for instance by driving through a red light, and this failure causes an accident that injures other people (drivers or pedestrians), the injured parties can sue the responsible party for compensation for their injuries.

Once a wrong has been committed and damages have been incurred, a lawsuit is commenced by preparing a complaint that clearly sets out the parties involved, the facts that make up the wrong and the resulting damages, and the “cause(s) of action,” which is the legal reason or theory for why this particular wrong is one that can be pursued through the legal system.  The complaint is filed with the court in the location where the wrong occurred or the defendant lives, and the filed complaint and court summons must be served on all parties who are named as defendants.

State Court or Federal Court?  Basic Jurisdictional Considerations

In the United States, there are two major court systems:  federal and state.  The federal system is run by the U.S. government, while each state has its own state court system.   Generally speaking, in order for a civil lawsuit to be brought in federal court, it must either be founded on federal law, or else the parties to the lawsuit must be from different states and the “amount in controversy” must be greater than $75,000.

State courts, on the other hand, don’t have the same access restrictions, and that, coupled with the fact that most contract and tort actions are based on state law, means that most civil lawsuits are filed in state rather than federal court.  On the other hand, there are certain areas of federal law where lawsuits can only be brought in federal court.  For instance, in the field of immigration law, lawsuits to compel government action or to review immigration decisions can only be brought in federal court.

What Happens After You File Your Lawsuit?  Discovery and Mediation/Arbitration.

As soon as a person files a civil case in state court, the court clerk will issue a “summons” and set a date for an initial case management conference approximately four months later.  The person who filed the case then has the responsibility of getting someone to serve the summons and complaint upon all defendants named in the case.  Once served, the defendants have thirty days to file an answer.

Once the case is begun and the complaint is answered, both sides have the right to conduct “discovery,” in order to find out all the facts that are relevant to the case.   This includes written requests for information and documents, as well as oral depositions, when a party will sit down and answer questions under oath from the other side’s attorney, with a record transcribed by a court reporter.

At the initial case management conference, the judge will review the status of the case, and most likely order that the parties participate in ADR (alternative dispute resolution).  This takes the form of mediation, where the parties meet with a neutral third party to try to reach a settlement, or arbitration, where a short, informal hearing is held before a neutral third party, who renders a non-binding decision.   If the case does not settle at mediation, or if one of the parties rejects the arbitration decision, then the court will set the case for a mandatory settlement conference at the court, followed by a date for trial.

Why You Should Settle Your Case?

Very often, those who have been wronged (or have been accused of wronging someone else) understandably feel very passionate about the issues and principles in their case.   However, civil litigation requires that a party be as clear-headed as possible about their goals and what it will cost to reach those goals.

As a wise (or at least clear-headed) judge once put it, the (monetary) value of a person’s case is not the total amount of all the damages they have suffered.  More realistically, the value is the total amount of damages, minus the amount it will cost to obtain a judgment for that amount, multiplied by the percentage chance of winning that judgment at trial.  In other words, once the facts have been established and analyzed by both sides, it will often make sense to negotiate a settlement that may be less than the total amount of damages suffered but that will ultimately allow a party to avoid the usually substantial cost of going through a trial.

Trial and Post Trial Matters

A civil trial is held in front of a judge, who decides legal questions related to the case, and a “trier of fact,” that hears the evidence and makes decisions based on the evidence.   The trier of fact can either be a jury, or it can be the judge, with no jury involved.  The trial can last from a single day, to several weeks or more, depending on the size and complexity of the case.

Once the trier of fact has reached a verdict, the case itself is over unless either side appeals.  If the verdict was for an amount of money in favor of the person bringing the case, then a judgment is entered for that person, and the person who lost the case is responsible for paying the judgment amount.  However, if the “judgment debtor” does not pay, then the “judgment creditor” has to actively pursue the amount owed.  Possible ways to compel payment include putting a lien on the debtor’s real property and executing a levy (i.e. “cleaning out”) the debtor’s bank accounts.

If you are sued or are considering suing anyone in California, please contact us for consultation.