Questions and Answers About Litigation, Part 1
By Phil Halverson
Reprinted from an article published by the Bar Association
- What Is Litigation ?
- Does Litigation Mean You Have To Go To Court ?
- Who Are The Plaintiffs And Defendants ?
- Which Laws Apply To My Case ?
- Which Laws Apply In California ?
- What Is The Difference Between Municipal Court And Superior Court ?
- What Is A Complaint ?
- What Is A Cross-Complaint ?
- What Is An Answer ?
- What Happens If I Don't Answer The Complaint ?
- What Happens After An Answer Is Filed ?
- What Is Discovery ?
- What are Interrogatories ?
- What Is A Request For Production Of Documents ?
- What Is A Deposition ?
- What Is Arbitration?
- If I Am Sued Or Want To Sue Someone Do I Have To Have A Lawyer ?
- What Is Mediation ?
- Conclusion
BACKGROUND
Litigation is a complex process involving many different laws from the federal government to each of the fifty states. The federal government and each state have their own court systems. Much of the litigation process takes place before the parties go to trial. Many cases are resolved or settled by the parties, or their lawyers, early in the litigation saving time, money and the anxiety associated with being involved in litigation. There are two separate areas of litigation. These are civil litigation and criminal litigation. In this article we will look at civil litigation.
1. What Is Litigation ?
Litigation is the legal process by which people, companies and other entities resolve their disputes and recover damages for losses and injuries.
2. Does Litigation Mean You Have To Go To Court ?
Not always. The final step in litigation, in many cases, is a court trial and the parties do have to be present. However, the process of litigation usually begins with the filing of a complaint. That document is filed with the court, but the plaintiff does not have to appear until further proceedings in the litigation require his or her attendance.
3. Who Are The Plaintiffs And Defendants ?
The plaintiff is the person or entity seeking a determination of their rights according to the laws that govern the subject matter in which they are involved. The defendant is the person or entity against whom a claim has been made. In litigation there can be several plaintiffs and several defendants. These plaintiffs and defendants are called "parties".
4. Which Laws Apply To My Case ?
Which laws apply to a given matter is determined by many factors. Those factors include, but are not limited to, location of the parties, location of the real estate, location of the subject matter, and the nature of the matter. Federal laws apply exclusively to some areas of the law, such as bankruptcy. State laws often apply to people and matters within a particular state. Each state in the union has different laws.
5. What Laws Apply In California ?
Both federal and state laws are applied within the State of California. There are special federal courts to handle federal law and state courts apply state laws.
6. What Is The Difference Between Municipal Court And Superior Court ?
Municipal and Superior Courts are the two primary courts for application of California Law. Which court a matter goes to depends upon several factors including jurisdiction. In civil matters, the amount of money involved in the matter may determine which court the matter is heard. A complaint for less than $25,000 is generally heard in Municipal Court. Matters in excess of $25,000 are generally heard in Superior Court.
7. What is a Complaint ?
A complaint is the document that often starts the litigation process. The complaint sets forth the names of the plaintiffs and defendants. It states what is the basis for the claims (Causes of Action), what evidence exists to support the claim and what the plaintiff is requesting in the form of action to be taken by the Court.
8. What Is A Cross-Complaint ?
Generally there are two sides to every story. The defendant in a matter may believe a different set of circumstances exist from those stated by the plaintiff. In such a case, the defendant may have a claim of his own which he can bring against the plaintiff or other third parties which may somehow be involved and responsible for the defendant's situation. The defendant prepares a cross-complaint which is similar to a complaint. It sets forth the reasons the defendant thinks he will prevail in Court.
9. What Is An Answer ?
An answer is the document that the defendant files with the court responding to the allegations of the plaintiff. The defendant can admit some of the plaintiff's allegations, deny others, and add responses of his own. Those responses are called "affirmative defenses".
10. What Happens If I Don't Answer The Complaint ?
The defendant normally has 30 days from the day he is served with a complaint in which to respond or answer. If the defendant fails to timely file his answer, the plaintiff is may ask the court to grant a default judgment. If the defendant does not object, the plaintiff can go to court without the defendant, prove his case to the court and obtain a judgment including monetary damages against the defendant. That means the plaintiff may be able to recover the amount of the judgment from the defendant without the defendant ever having been in court.
11. What Happens After An Answer Is Filed ?
After an answer has been filed the parties, or their lawyers, begin the process of evaluating each others claims, their defenses and the evidence available to prove or disprove their claims. This is called discovery.
12. What Is Discovery ?
Discovery is the term used to describe the process of evaluating evidence to prove or disprove the plaintiff's or the defendant's case. There are several ways to conduct discovery the most common are interrogatories, requests for production of documents and depositions.
13. What are Interrogatories ?
Interrogatories are a set of written questions that are presented by one party to the lawsuit to another party. The party receiving the interrogatories has 30 days in which they, or their attorney, have in which to answer the questions. The responding party may answer the questions or object to the questions or qualify their response to the questions. Those answers may be used at the trial to prove or disprove a party's case.
14. What Is A Request For Production Of Documents ?
Litigation often involves written agreements and contracts between people such as purchase orders, leases, insurance policies, etc.. In order to evaluate a party's claim it is often necessary to review the written documents which may support that claim. Any party to a lawsuit may request that any other party provide them with copies of any and all documents in their control which in some way may relate to their claim. Parties, or their attorneys, may use those documents to support their client's claim or discredit someone else's claim.
15. What Is A Deposition ?
A deposition is a meeting generally held in a lawyer's office which allows one party, or their attorney, to ask questions of another party to the case about their knowledge concerning the facts, events, and people involved in or related to the case.
16. What Is Arbitration ?
Arbitration is voluntary or involuntary (ordered by the court) meeting of the parties in an effort to reach an agreement which could result in a settlement. An arbitration can be binding or nonbinding. The arbitration is conducted by an arbitrator who is generally a lawyer or retired judge. If the arbitration is binding the judgment is usually final. If it is nonbinding, the parties may agree to settle or ask to return to the litigation process.
17. If I Am Sued Or Want To Sue Someone Do I Have To Have A Lawyer ?
Not necessarily. The law allows individuals to have an attorney or, in many cases, to represent themselves (in pro per). Some parties in a lawsuit, such as corporations, are required to have legal representation. Litigation is a complex process. People can sometimes unknowingly harm their case if they are not able to understand the law or properly represent themselves. It is best to talk with a lawyer prior to getting involved in litigation.
18. What Is Mediation ?
Mediation is a voluntary effort between the parties to a lawsuit to settle their claims and avoid having to continue litigation. It is an informal meeting in a mediator's office (typically a lawyer or retired judge). Because it is voluntary the mediator tries to help both parties understand the other side and to honestly evaluate the strengths and weaknesses of both sides in an effort to reconcile their differences.
19. Conclusion
Litigation, the laws of the state and federal government and their separate court systems can be complex and confusing. Nevertheless the American legal system is the best in the world. It protects and defends the rights of its citizens and institutions.
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