No two lawsuits are identical: unique facts and different parties. However, all lawsuits are governed by the same rules and procedures. This page should be seen, then, as a resource in understanding some of those rules and procedures.


The Parties

The person who files the lawsuit is called the plaintiff and the person being sued is called the defendant.

Having been sued, the defendant has an option to counter sue the plaintiff. This is called filing a cross-complaint.

During a lawsuit, information may be discovered that shows someone else is in some way responsible for the wrongs outlined in the Complaint. In this event, either the plaintiff or the defendant can amend the complaint to add that other person(s) to the lawsuit. Also, either party may discover additional facts after the suit is filed, in which case they may be able to amend the complaint to sue the other party based on those newly discovered facts.

Every lawsuit can have multiple plaintiffs and multiple defendants so long as all of them are suing each other over related matters.

Plaintiff

The Plaintiff is the person (a natural person or a business entity like a corporation or a partnership) who initiates a lawsuit. People always ask if there is any advantage to being the Plaintiff versus a Defendant who files a cross-complaint. The answer is invariably "no" in terms of the merits of the case. Many lawsuits have results where the Plaintiff takes nothing and the cross-complainant wins big. The litigants are judged by the facts of the case not by who runs to the courthouse first.

Once the lawsuit is filed the Plaintiff is responsible for serving it on the Defendant. After service the clock begins to tick and the Defendant has 30 days to respond. Once service is completed but before the Defendant's answer is due the Plaintiff can begin to send out discovery to start to force the Defendant to provide answers to questions and documents related to the case.

TLF is very aggressive in pursuing its clients interests. TLF will marshal the facts and attempt to move every case to the point of summary judgment if possible.

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Defendant

The Defendant is a person (a natural person or a business entity like a corporation or partnership) who has been sued. Service of the lawsuit is the first major issue in any case. A natural person must be served personally, meaning the lawsuit must be handed to them by a person who is at least 18 years old and who is not involved in the case. In the case of a corporation or partnership, the lawsuit must be handed to the agent designated for "service of process". If a defendant cannot be served in these ways then the Plaintiff can apply to the court to serve the Defendant "by publication". This way the Plaintiff can get a judgment against a Defendant even if that Defendant cannot be found.

Defendants can file all sorts of motions in response to a Complaint. They can file an answer, which is a response admitting and or denying the allegations along with a list of all defenses to the claims made by the Plaintiff. The Defendant can also file a motion to quash service, a demurrer and or a motion to strike. TLF will identify which if any of these responses best suits your case.

Most important in analyzing a Complaint (hyperlink) from a Defendant's point of view is to determine if there are any grounds for a cross-complaint. A cross-complaint is a counter lawsuit brought by the Defendant against the Plaintiff alleging facts that entitle the Defendant to money or some other relief. The best defense is a good offense, so cross-complaints are very important in responding to any Complaint. Every case is always prepared with an eye to bringing the appropriate dispositive motion if possible.

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Complaint & Answer

A lawsuit is comprised of a complaint and an answer. The complaint sets forth in specific detail the allegations for which the plaintiff is seeking some relief, usually in the form of a demand for money.

Other examples of relief a complaint may ask for include a request for an injunction, which is an order from the court directing someone not to do something. A complaint could also, for example, ask the court to order property be sold, someone to account for money, or to terminate and wind up a partnership. There are many other kinds of relief that can be requested and knowing what to ask for is a key litigation skill.

Once the lawsuit is filed the court issues a summons which is a court order commanding the defendant to file an answer. Both the summons and the complaint have to be personally served on the defendant.

The defendant has 30 days to file an answer to the complaint once it has been personally served on the defendant. If the defendant fails to file an answer then the plaintiff could get a default judgment entered, meaning the defendant loses.

The defendant's answer contains denials and admissions of the factual allegations of the complaint. The answer also contains the defendant's affirmative defenses, which are reasons if proven that bar the plaintiff from recovering. An example of an affirmative defense with which many people are familiar is the statute of limitations. This means the plaintiff cannot recover anything based on the allegations of their complaint because they all took place too long ago. Depending on the type of allegations the plaintiff raised, the statute of limitations is usually two or four years.

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Discovery

Discovery is the legal process through which the parties find out all of the facts and documents the other side has in support or in defense of their case. Both sides have the reveal to the other all of their facts and supporting evidence or else run the risk of not being able to use those facts and evidence at trial.

Discovery takes many forms: depositions are where parties and witnesses give live, sworn statement in answer to questions posed to them by the other side. There is also written discovery including interrogatories (written questions), requests for admissions where the other party has to admit or deny and explain the denial relating to specific facts, as well as various other forms.

All discovery must be answered sworn under penalty of perjury by the answering party. All discovery ends 30 days prior to the date originally set for trial.

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Dispositive Motions

Dispositive motions usually take the form of motions for summary judgment and motions for summary adjudication of facts. Such motions may be filed by either the plaintiff or the defendant and, if granted, can win your case without the need of trial.

A motion for summary judgment asks the court to look at all of the evidence from both sides and rule there are no issues for trial. There is a very high burden to win such a motion but if you do the case is over.

A motion for summary adjudication of facts asks the court to find there are no issues for trial on a particular issue or issues in the case. A motion for summary judgment is an all or nothing proposition. A motion for summary adjudication of facts is an issue by issue kind of motion where you can win on some and lose on other issues. Often these two types of dispositive motions are filed together for the court's consideration. If granted, a motion for summary adjudication of facts can greatly limit but not altogether eliminate the need for trial.

Since each of these kinds of motions are evidence based, they have to be brought after discovery is completed. These are usually the last motions the court will consider prior to trial. These are difficult to win but when you do they prove a very cost effective and useful litigation tool.

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Trial

95% of all cases filed in Los Angeles never go to trial. Most settle or are dismissed.

Trial is the process by which the fact finder determines who wins and how much they win. This result is reduced to a judgment, which is a piece of paper which explains the result of the trial, i.e. who won and how much they won. In some cases the fact finder is a jury.

Either the defendant or the plaintiff can ask to have the case decided by a jury. Only one party has to ask for a jury and the other party cannot object. Many cases are decided with a bench trial, where the judge hears all of the evidence and makes a decision.

In both scenarios the fact finder hears testimony from witnesses and reviews documents. The testimony and the documents are the evidence from which the case is decided.

There are a couple of things you need to understand about litigation in general and trial in particular. We tell clients never point an unloaded gun at someone because they may have a loaded gun to point back at you. In other words, never make idle threats. Many lawyers do not like trial. They are uncomfortable and inexperienced with that process because so few cases are ever tried and because they just have never done it. Trial is the most work-intensive, costly portion of any case.

TLF loves doing trials and we are good at it. We never point an unloaded gun. Every lawsuit we get we work and work and work toward trial. Often just showing the other side how prepared we are for trial is enough to get a case settled. Start to finish a case usually takes between 14 to 24 months.

Besides being very aggressive and constantly putting the pressure on the other side, the other thing we always tell clients is that trial necessarily means they can lose. Even if you think you have a "slam dunk" case you could lose. Everyone can lose a trial because the determination of who wins ore loses is left up to human beings who, in the end, must make a subjective decision in the most objective way they can. It is a very imperfect process and anything can happen. This uncertainty factor is the reason the vast majority of cases settle.

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Judgement

A judgment is a piece of paper signed by the court generally stating one person owes another money. It is what results from a trial on the merits of your case, either by the judge or the jury. It can also be the result of an agreement between the parties called a Stipulated Judgment. The person owed money under a judgment is called the creditor and the person who owes the money is called the debtor.

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Collection

Getting a judgment is one thing. Collecting the money owed is quite another. By itself a judgment has no intrinsic value. It does not force the judgment debtor to pay a dime to the creditor. People do not go to jail for failing to pay a judgment. In many cases people can declare bankruptcy and discharge a judgment without paying anything. But what a judgment does give the creditor is very distinct and powerful legal rights. You can force the debtor to come to a debtor's exam where we can discover where the he banks. We can then seize the money in his bank accounts (called a levy). We can take portions of his paycheck. We can get the sheriff to sell his car, his real estate and his personal property. All of this is "enforcing the judgment" and TLF can get it done for you.

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Appeals

First, please check out our appeals page. Anyone who loses at trial can appeal. If the case was decided in state court then your case can be heard by the Court of Appeal, then the California Supreme Court then the United States Supreme Court. If your case was tried in federal court then your case goes to the Ninth Circuit Court of Appeal and then the United States Supreme Court. You have a very limited time after your case is over to file your appeal, so you have to make a decision quickly. The trial court usually makes many disputed decisions during the course of a case, both before, during and after trial. Most such decisions cannot be appealed until the entire case is completed and a judgment is entered. Appeal is a complicated process. In most cases the Court of Appeal's only inquiry is whether or not the court abused its discretion in making the decision it made, not whether or not the actual decision was correct or not. This is called abuse of discretion standard of review. Other times the Court of Appeal will decide the entire case anew without any consideration for the trial court's rulings. This is called de novo review. Either way, your case on appeal will include a written record (all of the court filings, exhibits at trial and transcripts of testimony at the trial and hearings) and briefs the appellate court reads to consider its decision. Usually the party who files the appeal (the Appellant) files an opening brief, then the other party who is opposing the appeal (called the Respondent) files an brief stating their arguments about why the trial court decision should not be changed. Then the Appellant is permitted to file another brief in response to the Respondent's brief. The parties are then afforded an opportunity to go to the court of appeal for oral argument before the panel of judges, usually three in number. The appeal process can take more than a year after entry of the judgment.

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