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LITIGATION PROCESS
When a person decides he or she must sue someone else to get justice, the person’s lawyer drafts a document called a complaint. In the complaint, the person suing is referred to as the plaintiff, and the person being sued is referred to as the defendant. The plaintiff’s lawyer has the complaint filed at the appropriate courthouse, and a copy of the complaint is served on the defendant.
Once the defendant is served, he or she retains a lawyer, who files a responsive pleading with the court. If the responsive pleading is an answer, which generally denies the plaintiff’s allegations and presents the defendant’s affirmative defenses, the case is considered to be “at issue.”
Sometimes, instead of immediately filing an answer, the defendant files a demurrer. By filing a demurrer, which is a type of motion, the defendant is essentially saying to the court, “Even if everything the plaintiff alleges is true, there is still no case.” Thus, a demurrer is an early type of motion to dismiss the case. If the demurrer is “overruled,” the defendant then usually files an answer, after which the case is at issue and proceeds into the discovery phase.
In the discovery phase, the parties, that is, the plaintiff and the defendant, use certain procedures to discover what evidence each side has and what each other’s contentions are. For example, the parties will usually send out form interrogatories, a demand for production of documents and things, special interrogatories, and a request for admissions. The responses to these documents are prepared by the parties’ attorneys with assistance from the parties themselves. The parties read the responses and verify their truthfulness before they are sent to their adversaries. Once the parties have responded to “paper discovery,” the defendant usually takes the plaintiff’s deposition. A deposition is a question-and-answer session that takes place in the office of the attorney representing the party whose deposition is being taken. A court reporter issues an oath to the deponent, who then testifies under penalty of perjury. The court reporter takes down every word said and later makes a booklet containing the deposition transcript. A deposition can be as short as 20 minutes or as long as several 7-hour days.
After paper discovery is complete and depositions are taken, the defendant often files a motion for summary judgment. This is another type of motion to dismiss and requires reference to the evidence acquired during discovery. In this type of motion, the defendant is saying to the court that, in light of all the evidence, “no reasonable jury could find for the plaintiff.” If the court agrees, judgment is entered in favor of the defendant, and the plaintiff must decide whether to appeal to the Court of Appeal. If the court disagrees, the court will deny the defendant’s motion and the case will proceed to trial. Sometimes, after a motion for summary judgment is denied, the plaintiff and the defendant attend mediation, where a neutral party, often a retired judge, attempts to bring the parties together in a settlement of the dispute.
There are several other procedures that might be employed, and other events that could occur, in addition to the above, and depending on the type of case. The above is just a “nutshell” explanation of the entire procedure, from lawsuit filing to trial, which collectively is known as “litigation.” Litigation, if a case does proceed to trial, takes about 12 to 18 months in most cases. In rare cases, it can take a long as three years. An appeal takes an additional 8 to 12 months.