There are many steps to filing and prosecuting a civil lawsuit in California. This article provides an overview of those steps to help you better understand the process.
There are a several issues to consider before filing a lawsuit. One major consideration is whether you have a meritorious case, to be analyzed with reference to the possible range of potential recovery and the costs of the lawsuit. Costs include money, your time, and the stress of a lawsuit on yourself and your family.
Once the decision to sue has been made, you need to figure out who to sue and where they reside. You will also need to determine the appropriate court for filing the action. A plaintiff generally can sue in any judicial district in which the defendant resides or does business, or in any district in which the events that led to the lawsuit occurred.
Preparing the Summons & Complaint
The next step is to prepare the summons & complaint. A complaint is a concise statement of how the dispute arose, who is responsible, and the nature/amount of alleged damages. A complaint must have at least one cause of action. A cause of action is a legal theory that is the basis for your lawsuit.
A summons will need to be prepared and filed along with the complaint. The summons provides notice to the defendant that he or she is being sued, and gives the time limit for responding.
Filing the Summons & Complaint
The case starts when the papers are filed with the court. There is a filing fee that must be paid when you filed your papers. The amount of the fee depends on what type of case you are filing and the amount of damages you are seeking in the lawsuit. If you cannot afford the filing fee, you can ask the court for a fee waiver, but if you win your lawsuit and collect money, the court may ask you to pay back the waived fees.
Serving the Defendant
After the lawsuit is filed, the defendant (or defendants, if you are suing more than one person or company) is entitled to notice of the filing. This is accomplished with “service of process.” Specifically, the summons and complaint need to be “served” on every party in the lawsuit. This means you have to have someone (not you)18 or older deliver a copy of the papers to the other side. When you serve someone for the first time in a case, like when the case is just starting, you usually have to serve him or her in person. Thereafter service typically can be effectuated by mailing the defendant(s) a copy of the papers you are filing with the court.
The person who “serves” the papers has to complete a “proof of service” telling the court that he or she has properly served the papers. The proof of service then needs to be filed with the court. There must be a proof of service for every party served.
Response or Default
Once the defendant has been served with a copy of the lawsuit, he or she has 30 business days to respond by filing an answer or other responsive pleading with the court. If the defendant does not respond, he or she is in “default”. This means that the defendant cannot contest the case unless he or she has the default “set aside” or “vacated” (canceled) by order of the court.
Once a default is entered, the plaintiff can ask for a default judgment against the defendant. Using this procedure, the plaintiff can win and obtain a judgment for up to the amount that he or she asked for in the complaint, without ever appearing in court. If the default judgment is granted, the plaintiff has won the case.
If the defendant filed an answer or a general denial, the case is considered to be “at issue”, meaning it is ready to proceed to trial.
You can start discovery 10 days after service of the summons & complaint, or as soon as the defendant answers the lawsuit. Defendants can start discovery once they are served. The discovery process allows both sides to exchange information and learn about the strengths and weaknesses of both sides of the case. The primary discovery tools are written Interrogatories, Requests for Production of Documents oral Depositions and third-party Subpoenas for witnesses who are not parties to the lawsuit.
In general, you have to finish discovery 30 days before the trial date. This includes all motions to force responses to discovery when the other side does not respond.
Discovery can be very complicated and expensive, and the rules are very strict. If the rules are not followed, you may not be able to use the evidence you gathered in court. Also, there many strategic decisions involved in discovery. Accordingly, discovery is an area of your case where the advice of a lawyer can be extremely helpful.
Case Management Conference
A case management conference (CMC) is when both sides, the lawyers (if any), and the judge meet to talk about how to handle the case. Most civil cases have a CMC and it usually happens between 120 and 180 days from filing of the lawsuit. At least 15 days before the case management conference you will need to file and serve a Case Management Statement on all parties. The statement provides the status of the case to help the judge determine whether to set a trial date or give the parties more time to complete pre-trial matters. It can also be used to determine whether possible settlement of the case should be explored through a formal process such as mediation.
Before the trial date the court typically holds a mandatory settlement conference to try to assist the parties in settling the case. This conference may be held informally in the judge’s chambers or in a courtroom. All parties with authority to settle the case must attend.
At the mandatory settlement conference, the judge meets with the people in the case (and their lawyers). The parties will present the facts of the case to the judge, and the judge will try to find a solution that everyone agrees with in order to settle the case. The settlement conference judge is a different person than the one who will serve as the trial judge. If you can reach a resolution at the conference, there is no trial.
The trial date is usually assigned at the case management conference. The court will schedule the trial date based on information you provide to the court in forms you must file, or at the case management conference. The trial can last 4 hours or less, a day, or sometimes a week or more. It depends on the complexity of the case. It can be a jury trial or a court trial, depending on the type of case and what the parties choose.
Trials are extremely hard to handle on your own without a lawyer. You should strongly consider hiring a lawyer to handle the trial part of your case.
At the end of a jury trial, the judge or jury first decides what facts they believe are true. Once they have determined the facts, they must apply the law to those facts. If the judge decides your case, the judge may render a decision on the spot or may announce the decision on a later date.
The party that loses the case will be able to appeal the court’s decision. Appeals generally require the skill and knowledge of an attorney with experience handling appeals. Consult your local bar association for a list of qualified attorneys.
Lynx Legal Service can assist in the preparation and filing of pleadings and other documentation to be presented to the court during all phases of the litigation. Contact the group at Lynx Legal Service today to discuss your needs and requirements. You can reach us at 888-441-2355 or by email at firstname.lastname@example.org.