Litigation essentials – Lawsuit roadmap!
The following is a general legal overview of the lawsuit process. Certain elements may vary depending upon the type of case or the court you are in. We hope you enjoy this post. Feel fee to share it on your social media networks.
You start a lawsuit by filing a complaint. The complaint sets forth that facts of your case , the parties, grounds for jurisdiction, your “counts” or “causes of action” and a “prayer for relief.”
Service of Process (Summons and Complaint)
Once you file the complaint, the “summons and complaint” (along with ADR papers) will need to be served on all parties to the lawsuit. This is known as “service of process.” And there are certain timeframes in which the Plaintiff must properly serve all parties.
Federal Court Removal
One thing that may happen after you file a STATE COURT complaint, is that the Defendant(s) want to “remove” the case to federal Court. This can be done in two instances:
a. There is a “federal question” involved in the complaint (for example, the Plaintiff sued for a violation of TILA, RESPA, FDCPA, FEDERAL TRADEMARK, or FEDERAL COPYRIGHT INFRINGEMENT or some other federal claim. This gives the Defendants a right to go into federal court.
b. There is “diversity jurisdiction” which means the Plaintiff has sued people from other states than the one Plaintiff lives in and the $75,000 amount in controversy requirement is met. If these two elements exist, Defendants can also remove the state court lawsuit to federal court.
If the Plaintiff disagrees with the removal motion, the Plaintiff may make a “motion for remand” back to State Court. If successful, the case will be transferred back and the Plaintiff MIGHT be able to recover costs and attorney fees for “improvident removal.” If the removal was proper, Defendants will generally have an additional 7 days to respond to the complaint by answering or filing a motion to dismiss.
Demurrers / Motions to Dismiss
A demurrer is a motion that tests the legal sufficiency of the pleadings.
Motion to Strike
A motion to strike is designed to attack irrelevant, improper, scandalous or other matters in the Complaint.
Tentative Rulings in Law and Motion matters
When you are involved in law and motion matters (ex. filing motions with the Court). These are very important decisions and must be reviewed immediately when you get them.
Answer and Affirmative Defenses
Once the Defendant has run out of options to try to dismiss the case on Motion to Dismiss (federal court) or Demurrer (State court) they will then have to answer the complaint and raise any affirmative defenses that they may want to raise.
Cross-complaint & Countersuits
A defendant may choose to cross-complain against other Defendants or file a countersuit against the Plaintiff.
Discovery is the process of getting the evidence you need to prove or defend your case. The main forms of discovery are as follows: a. Form interrogatories b. Request for admissions c. Special interrogatories d. Depositions e. Subpoenas
When parties will not voluntarily provide the information, a Motion to Compel may be required. Usually there is a “meet and confer” requirement with the opposing party before filing this type of motion.
CCP 998 offers
A CCP 998 “offer to compromise” is a powerful tool that might help you settle your case, and if not, there is a “cost-shifting provision” which may allow a party to recover their litigation costs and expert witness fees if the other party does not “beat the 998 offer.” We have discussed this important issue in another blog on our website. The link is provided below.
Motion for Summary Judgment
After the close of the discovery period, one of the parties (Plaintiff or Defendant) may move for “summary judgement” seeking to get the judge to rule that there is no triable issue of fact as a matter of law, and that the case must be dismissed. These motions should only be granted sparingly where there is no legitimate factual dispute presented.
If the parties are able to reach a settlement, through the use of a CCP 998 offer to compromise, or just a plain offer and acceptance of an offer to settle, the parties will embody their agreement in a settlement agreement that spells out the terms and conditions of settlement.
Settlement – Request for Dismissal
After you get your case settled prior to trial, you will want to give the court prompt notice that the case has settled and file your notices of dismissal. This only comes after you have a written signed settlement agreement in place. Watch our video below to get a better understanding of this topic.
Motions in limine
A motion in limine is a motion to exclude evidence so that the jury will not hear it at trial. For example, prior crimes of the Plaintiff or Defendant, things that are unfairly prejudicial to a litigant.
If you cannot get your case settled, you will end up in a trial. This is where the jury is picked, and you present your case. The basic process of a trial is:
a. Opening statement by Plaintiff b. Opening statement by Defendant c. Plaintiff puts on evidence (Defendant has a right to cross-examine witnesses) d. Defendant puts on evidence (Plaintiff has a right to cross-examine witnesses) e. Closing statements by each party d. Jury deliberation e. Decision / award
When the underlying litigation is over and a final judgment is entered, the losing party has the right to file a notice of appeal with the Court and then to appeal the decision. Winning on a appeal is never an easy task, however, if there were serious prejudicial errors made, and/or a gross abuse of discretion, it may be possible to have the case overturned on appeal and get a new trial.
Contact our arbitration & litigation attorneys
Our law firm has a strong background in litigating cases in state and federal courts in Arizona and California (including adversary proceedings in bankruptcy court). We can help you whether you are a Plaintiff or a Defendant and we assist in business, real estate, insurance subrogation, internet law, serious personal injury and intellectual property disputes. We offer affordable and flexible legal fees and tenacious legal representation. Contact us at (877) 276-5084 or fill out the contact form below to have one of our lawyers or staff contact you, normally within the hour.