PHASES OF A LAWSUIT
Although all cases are unique, the phases of litigation for any type of case are similar. Most of our clients have never before been involved in a lawsuit, so they do not know what to expect when they come to us for help. The following generalized overview of how a case progresses will help to familiarize you with the litigation process.
Phase 1: Intake
You will initially speak with someone in our intake department. This person is qualified to discuss your potential case and will obtain the necessary information and documents to determine whether we can help you with your case. Different information and documents are required depending on the type of case that you have. But our intake specialists will be able to guide you through the process so that we receive all that we need to give you case a proper and thorough review. If the firm believes that it may be able to help with your case, we will ask you to come in and meet with our New Case Manager and an attorney who would work on your case. After meeting, if both parties, you and the firm, are interested in working together on the case, you will be asked to sign a retainer agreement. This document sets forth the terms and conditions of our working relationship, including the fee structure. We are available to go through the agreement with you, answering any questions.
Phase 2: Commencement of the case
Once all parties decide that they would like to move forward, and the retainer is signed, our attorneys will immediately begin work on your case. Usually, we have obtained all necessary documents and information during the intake process to draft and file a complaint with the court, but there are times we may need to undertake further investigation. If this is the case, one of the attorneys or paralegals assigned to your case will contact you to secure the additional details.
The filing of the complaint is the beginning of your lawsuit. Your attorney will determine in which venue (courthouse) your case should be filed. Our firm works in both state and federal courts throughout California. A complaint is a legal document filed with the court by the plaintiff (the person bringing the lawsuit). It sets forth the nature of your claim and the name of the person or company that you are suing (the defendant). After it is filed with the court, the complaint will be served on (sent to) the defendant, and they then have an opportunity to answer your allegations. On the rare occasion, the mere filing of a complaint will be enough to cause the defendant to settle your case. More commonly, your case will progress into the next phase of litigation.
Phase 3: Discovery
The discovery stage is when each party to the action (plaintiff and defendant) exchanges information with each other. Information is obtained through several means, including but not limited to interrogatories (written questions and answers), requests for documents, depositions (oral testimony), and site inspections (experts examining your damaged property). Discovery is an ongoing process lasting almost until the start of the trial.
Phase 4: Mediation and Settlement
Due to the current caseload of California judges, everyone involved in a lawsuit is required to submit to a mandatory settlement conference. But before that date arrives, your attorney may recommend that you go to a voluntary mediation. (On occasion, a judge will also require you to submit to mediation.) Mediation is similar to a trial, but it is before a retired judge or attorney, it does not take place in a courtroom and it is less costly than taking a case all the way through a trial. Mediations can take a couple of hours or a couple of days. It all depends on the complexity of the issues and the positions of the plaintiff and defendant. A mediation brief, stating your position of the case, will be filed prior to the day of mediation, so the mediator is fully aware of the facts of your case. The mediator will do his or her best to propose a reasonable settlement based on the facts, and if both parties agree with the amount submitted by the mediator, the mediator’s award becomes final and the case is over. All parties and their attorneys are present at a mediation. In the rare occasion, a party may attend by phone.
A mandatory settlement conference is a similar process, but it may take place in a courtroom before the judge assigned to your case or another available judge in your courthouse. The attorneys will present their clients’ cases to the judge, and the judge will make a settlement recommendation. Usually all parties are present, but as with a mediation, there are times when a party will be allowed to attend by telephone. If both sides can reach an agreement, the case will come to an end at this point.
You will never be forced into a settlement during a mediation or a mandatory settlement conference. Your attorney will present the facts to you in a realistic manner and offer an opinion as to what you should do, but ultimately it is your decision to accept or reject a settlement offer.
If an agreement cannot be reached through a mediation or a mandatory settlement conference, the case will go back to court and will eventually be tried in front of a judge or a jury.
Phase 5: Trial
Most lawsuits are resolved without going to trial. This is done through settlement during a mediation or a settlement conference. But there is a small percentage of cases that make it to the courthouse. An attorney’s work on your case becomes quite intense in the weeks leading up to your trial date. During this time, you may be required to come to the office for a day or more to go over facts and to be prepared to testify, if you are to testify in your case.
A trial can be before a judge (a bench trial) or a jury (a jury trial). The procedure is the same for both, except that in a jury trial, the people who hear and decide your case must be selected. In a bench trial, the judge both hears and decides your case.
A jury trial begins with jury selection. During this process, both attorneys, plaintiff’s and defendant’s, have the opportunity to ask questions of potential jurors. Each attorney has a certain number of opportunities to remove jurors from your panel, helping to insure that you receive a fair and impartial jury. Once a jury is selected, the trial proceeds in the same manner for a bench or a jury trial.
During the trial, both sides will have the opportunity to present evidence, both oral testimony and presentation of documents, to tell their stories to the judge or the jury. Once all evidence is entered, both attorneys will give closing arguments. If it is a jury trial, the judge will then instruct the jury on the applicable law and send them to deliberate. In a bench trial, the judge takes all the evidence under submission, and will take some time in making his or her decision. Once a verdict has been reached, by either a judge or a jury, it will be read to you and this decision will become final, concluding your case.
Phase 6: Appeal
Sometimes, one of the parties is not happy with the judge’s or the jury’s decision. There are times when that party has the right to appeal the decision. At this time, if an appeal is a possibility in your case, your attorney will meet with you to discuss the situation and to make the necessary decisions. This is necessary as our scope of employment under the retainer agreement only goes through the initial trial. Sometimes we are able to move forward with you during the appeal phase, but oftentimes it is necessary for an attorney who specializes in appellate law to step in and take over representation.
