The Litigation Process

There are really two ways to solve problems in the good ol’ USA. Formally and informally. Informal dispute resolution processes vary from angry demand letters, to beer summits, to phone calls, to closed door meetings… you name it. I label anything involving a trial or litigation, i.e. the courts or forced arbitration, as “formal” dispute resolution.

On this page I will explain the basics of how a trial works, from the beginning of your case to the end. This being the good ol’ USA, on TV and in popular culture we have a myth surrounding the court system. You file a lawsuit, you have a trial, you hopefully win the trial after Perry Mason introduces his surprise witness to a shocked courtroom, and you go home a millionaire.

If only it were that simple. Unfortunately, resolving a lawsuit is a lot more boring than that. There are some exciting parts, maybe, but for the most part it involves a lot of hardwork, preparation, research, and strategy. Doing it yourself is a mistake, and I have no compunction telling you that only a fool has himself for a client. Would you perform open heart surgery on yourself? Would you give yourself a root canal? I hope not.

Nonetheless, you should know the basic process before you hire an attorney to represent you. The basic process of a case is as follows:

1. Find your lawyer. This is what you are doing now, I suppose.

2. Meet with your lawyer. Give them all the documents and information they need. Tell them everything. I mean, everything. They need to know it all. Do not hide bad information. Do not sugarcoat. Bad facts that are not revealed to your lawyer from the get-go have a nasty way of rearing their ugly head in the middle of a case. Trying to hide them never works.

I cannot emphasize this point enough: They’re your lawyer. You have to trust them. Under the law, your lawyer’s most important and fundamental duty is keeping everything you tell them confidential. It is a lawyer’s duty to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” We tend to take this very seriously.

If you do not trust your lawyer enough to tell them everything, find another lawyer and tell that lawyer everything instead. If you do not trust anyone enough to tell them everything, do yourself a favor and do not hire a lawyer or file a lawsuit.

3. If you have a case, you and your lawyer will sign a retainer agreement. This is a contract between you and your lawyer. Usually, it covers things like: what your lawyer is going to do for you, your rights and duties as a client, your lawyer’s obligations to you, how your lawyer is going to get paid, and so on.

4. Your lawyer will analyze your situation and determine the best way to resolve the case. If informal resolution might be possible, your lawyer will initiate that process, usually with a demand letter. A demand letter is simply a letter telling your employer how they screwed up, and what they need to do to rectify the situation for you. If it works, you’re done. If it doesn’t, proceed to step 5.

5. Filing the Complaint. This begins the “formal” resolution process. A complaint is a legal document telling the employer, and the world, what laws the employer has violated, and what you (the Plaintiff) demand to make it right.

6. Once the Complaint is filed, it needs to be served. 10 days after service the Plaintiff can start sending “discovery.” More on that later. (The defendant can start the discovery process at any time.)

6. The employer (now, the “defendant”) files a “responsive pleading.” Usually, this is an “Answer.” Usually, the Answer just denies everything. Sometimes a defendant will file motions attacking the Complaint as defective in some way.

7. Assuming you get past this stage (most complaints do) your case is now “at issue.” This just means the Court can start scheduling substantive dates, like dates for trial.

8. The Discovery process, if it has not started yet, will get undergoing in earnest at some point between the filing of the complaint and your trial. Discovery is basically the official mechanism for fact gathering in the litigation process. In the California Code of Civil Procedure, there are specified discovery tools that lawyers can use to make the other party give them information. If the other party fails to give the information, the Court can make them give up the information. These tools include depositions, requests for documents, “interrogatories” (basically, written questions), requests for admission, and other fact gathering devices. This process often is the most time consuming, costly, and important part of litigation. If you have a trial, the trial will consist entirely of the “universe” of facts uncovered in this process.

9. Summary Judgment. In many cases, a party (usually the defendant) will ask the Judge to decide the case before it gets to a jury. If there are no “triable issues of material fact,” the Judge will render the verdict.  If that happens, that’s the end of the road. This is a difficult hurdle for any party since usually, there is some fact left in dispute. If a fact is still in dispute, for example, the parties disagree whether the light was red or green and there is no indisputable evidence conclusively deciding the issue, then the case goes on. In some cases there is a legal defect in the case that makes the factual dispute irrelevant. For example if the law says that a certain employee is not entitled to overtime, and that is the only claim, the Judge can toss the case even if there is evidence showing the employee worked overtime.

10. Trial. Where the rubber meets the road. This is where you and your lawyer make their case to the jury or the Judge. The most basic trial consists of the Plaintiff presenting their case, the Defendant presenting theirs, and then both parties submit their case to the Jury and let them render their verdict.  Every trial is different, however, and there is not really a cookie cutter approach.

Trials are not as exciting as they are on TV. Most of the trial is sitting in a courtroom, listening to a witness answer questions or listening to lawyers argue. Everything is thoroughly scheduled before-hand; there are no Perry Mason-esque surprise witnesses. Most of the time the lawyers (and the Judge) know who is going to testify and what they are going to say. This is because the universe of facts available at trial is usually defined before the trial even begins. The trial is thus won or lost on (a) correctly defining the parameters of that universe of facts; and (b) presenting those facts in a compelling way that convinces the Jury that you are right and the other side is wrong.

Most cases do not go to trial. Trials are inherently risky, time consuming, and expensive. Anything can happen, no matter how well prepared you are. A juror could get sick, and you have to replace them with an alternate that changes the tenor of the jury room. A witness could decide to not show up. An important document can go missing. A witness might recant prior deposition testimony. Nothing substitutes for rigorous, thorough preparation, but no plan survives first contact with the enemy. A trial is a fluid, dynamic (and time consuming) process.

11. Post-trial Motions and Appeals. So you have won your trial. Do not celebrate yet. The losing party can ask for a new trial, can ask the Judge to reverse the jury verdict, or can just appeal the whole thing and make the court do it all over again. There are a lot of hurdles you need to jump through to actually get your judgment and start collecting.

12. Collection. Phew, that took a while. Sometimes it can take years to get to this point. And you are still not done. Assuming you have a Judgment that says you are entitled to money, now you have to initiate the collections process. This is the official process you need to go through to actually force the Defendant to pay you. It is almost like a whole different case in itself.

The sad truth about trials is most Judgments go uncollected, since collections is such a pain. Many cases that go to judgment even settle after trial, oddly enough, since a Plaintiff will usually never collect the full money judgment against a Defendant who is hell bent on stymieing the collection process. This is another reason most cases do not go to trial; if you win, you still have a high mountain to climb before you actually get any money.

You may have gotten through all of this and wondered “so when do we settle the case?” The answer is: any time the parties agree to settle the case. Usually this happens after each party has enough information to make an informed decision about settling. The settlement amount will usually take into account the facts of the case, the stage of the proceedings, and the risks of taking the case further for each party. Settlement can happen at any time and is facilitated in a variety of ways.

Still have questions? Want to get started? Contact me. 

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