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A Primer on the Litigation Process

If you have not been a party to litigation before, you may wish to know what to expect. Also, you might be interested in knowing what certain terms mean. We have written this in order to help you to understand how your case will proceed, and what role you will be expected to play in it. While we write this from the perspective of attorneys who are primarily involved in wrongful death and personal injury litigation, most of the principles that we discuss apply to all cases.

Entering into an Attorney-Client Agreement

California Business and Professions Code Section 6147(a) and the laws of most other states require that you enter into a written agreement with your attorney in personal injury and other cases. These agreements set forth the nature of the representation that the attorney is expected to provide, the compensation agreed to by the parties, and other particulars such as the client’s responsibilities to assist in the conduct of the case.

In California, the most important thing for any wrongful death or personal injury plaintiff to know is that contingent fees are both legally proper and used in virtually every case. A contingent fee is simply a fee that is contingent on the outcome of the case. Usually, if no recovery is made on your behalf, no fee is owed. If a recovery is made, the contingent fee is calculated as a percentage of either the gross or net recovery.

Contingent fees are much-maligned but play an important role in our justice system. Without contingent fees, only those who are fortunate enough to be able to afford an attorney’s hourly fee would have access to the courts. The use of the contingent fee allows all people with legitimate claims to obtain competent legal representation, even when they cannot afford the up-front costs.

While many people are under the impression that personal injury attorneys always receive one third or more of the recovery made by the client, contingent fees are generally negotiable. Indeed, California law requires personal injury attorneys to advise clients in writing that the percentage contingent fee is negotiable. Thus, in many cases the contingent fee is something other than 33 1/3 percent. Where fees are not negotiable, that is because they are essentially set to by law: this is common in medical malpractice cases, which are capped at relatively low levels in California and some other states.

Many attorneys propose fee agreements in which of the contingent percentage increases as the case progresses. The fee may be set at a relatively low percentage if the case is resolved before an actual lawsuit is filed, and increase as each stage in the litigation is passed. Obviously, an attorney who not only filed the case but conducted a lengthy and expensive trial may expect a higher percentage fee than one who resolves the case before stepping into a courthouse.

The contingent fee percentage also might vary depending on the size of the recovery. For example, your attorney may propose a fee of 30% of the first $500,000 recovery, and 25% of all amounts above that. For a client with a relatively large case, a sliding scale fee agreement of this sort could be extremely beneficial.

At the end of a case, typically you will be obliged to pay to your attorney not only a legal fee, but also an amount to reimburse that attorney for all of the costs and expenses he or she incurred in preparing and litigating your case. Your attorney may have spent a considerable amount of money for things like document copying, expert consultants, travel, lodging, and other goods and services. In most cases the attorney advances the funds necessary to pay these various costs and expenses, and is reimbursed from the gross recovery at the end of the case.

Initial Investigation

The first step for a plaintiff who is contemplating litigation is to assist your attorneys in investigating the facts relevant to two issues: liability and damages. The liability issue is a fancy way of describing a simple question — who is legally responsible for the harm that you have suffered? The law tells us who has a duty to act in such a way as to avoid harm to you. For example, a driver has a legal duty to use reasonable care to avoid harm to other drivers, bicyclists, and pedestrians. If a person has a duty to avoid harm to you and does not exercise the appropriate degree of care, and that results in harm to you, he or she will be liable for your injuries.

Sometimes, the law holds that the concept of duty only goes so far. In particular, the concept of foreseeability can place limits on a person’s duty. For example, consider a landowner who operates a pencil factory in a commercial district. One evening, a delivery driver parks her truck in the factory parking lot and makes a delivery, and on the way back to her truck she is assaulted. No one had ever been assaulted in that lot before. The driver wishes to sue the owner of the factory for failing to protect her from attacks by third parties. The courts may very well find that the landowner had no duty to act for the protection of the driver because the assault was not foreseeable. The result may be different, however, if there were prior, similar attacks that the landowner knew or should have known about. Your attorney would have to investigate the history of the parking lot, typically through searches of police records and leg work by private investigators, before making any conclusions about the viability of a lawsuit. You can see why investigation is an important part of evaluating and filing a case.

Liability is not a simple yes-no question. Sometimes an accident occurs as the result of negligent or even intentional misconduct by several people. When a case is filed against them, very often they will argue that the injured plaintiff himself or herself is wholly or partially responsible for his or her own injuries. When a plaintiff is found wholly or partially responsible for her own injuries, this is described as a finding of contributory or comparative fault. If a case goes to trial, the jury will be responsible for assigning percentages of fault to all those who contributed to the accident and injury. In an automobile accident case, for example, the jury may find that one driver is 30% responsible for the accident, another driver is 40% responsible for the accident, and the city that designed the traffic lights is a 30% responsible. Note that your damages will be reduced by the percentage of fault that the jury assigns to you. For example, if the jury determines that your damages total is $1 million but that you were 20% responsible for your own injuries, the court will reduce your award by 20 percent, to $800,000.

The damages issue is more straightforward. “Damages” simply means the amount of money that will compensate you for your injuries. In a personal injury case, a plaintiff is entitled to various categories of damages, with the primary ones being damages for past and future lost earnings, past and expected future medical expenses, and past and future pain and suffering. When the defendant’s conduct is especially reprehensible, a jury may be entitled to award punitive (otherwise known as exemplary) damages. This amount of money is not intended to compensate you for your injuries, but rather to punish and deter misconduct. Despite what the business and insurance industry might have you believe, large punitive damage awards are very rare, and indeed in California a plaintiff must show that the defendant is guilty of “oppression, fraud or malice,” California Civil Code Section 3294.1   A trial or appellate court may refuse to allow the jury to even consider awarding punitive damages, or it may eliminate or considerably reduce the amount of the punitive damages award after the jury verdict is reported in the headlines.

In rare cases, not involving a personal injury or wrongful death, a judge might provide a plaintiff with a remedy in addition to or in place of damages, such as an injunction, in which a party is ordered to do something or stop doing something. In very rare cases, the judge might order specific performance of a contract, which means that a judge will force a party to honor the terms of a contract even when that party does not wish to cooperate. This might be appropriate in a case where damages are not an adequate remedy, such as where a seller has breached a contract to sell a unique home or property.

How will you help us investigate the case? First, we will have a brief discussion with you about what happened, and how it has affected you. This will help us to determine whether someone is liable for your harm, and how a court could remedy it. We will give you a written questionnaire that you can complete by hand or on your computer. In injury cases, it will ask you for detailed information about your claim, about your education, training, and work experience, about your family life, and about your medical history and prognosis. In wrongful death cases, of course, we will ask questions about your loved one and what he or she meant to you as a family member and provider. In employment cases and commercial disputes, contracts, correspondence and related documents will be the most important pieces of information you will need to convey to us. In all cases, we will ask for documents that we will most likely need to pursue your case. Remember to never dispose of anything that even remotely relates to your claims, before consulting an attorney.

If we meet soon after your accident or loss, we may ask you to start keeping a diary or log (perhaps you might call it a private blog) , discussing your recovery from your injury or loss for the purposes of aiding us in presenting your case.

In injury and death cases, we will ask you to sign authorizations, which authorize us, as your attorneys, to obtain copies of medical and other records directly from the doctors, hospitals, laboratories, and other entities that provided care to you. We may ask you to see additional doctors if we feel that your injuries have not been adequately investigated and treated.

At the same time that you are helping us to investigate the facts, we will also be conducting our own independent investigation. We may hire private investigators, contact and interview witnesses, or conduct research on the Internet into the background of other parties. We will request copies of police or other governmental reports relating to your claims. Furthermore, to the extent your claims raise legal issues that we are not already familiar with, we will conduct legal research to obtain the necessary answers, and to identify the most effective and favorable ways to present your claims to a court.

Pre-litigation Settlement

Sometimes we will not file a case immediately if we think it is possible for you to obtain the damages you seek without involving the judicial system. For example, if it is clear that a particular defendant is at fault and that you bear no responsibility for your own harm, the defendant (or the insurance company for the defendant) may be quite willing to discuss payment without the formalities of a lawsuit. If we think your case might be resolved in this matter, we will discuss it with you.

In order to pursue a pre-litigation settlement, we will contact the potential defendants directly and identify their insurers. In turn, we will contact those insurers and present the facts of your case and our legal analysis of those facts in the form of a settlement letter. While there are no guarantees, sometimes it is possible to obtain an acceptable settlement offer from an insurer in this manner.

Commencing a Lawsuit

Our factual and legal investigation will help us to draft a written Complaint. The Complaint is a formal document that, when filed with the court, commences the litigation on your behalf. The case is opened and entered into the court records, and in most instances, the court immediately assigns a judge to supervise the lawyers who appear for the parties. When the complaint is filed, the court clerk will issue a Summons, which is a cover page directed to each defendant named in your complaint, and requiring each such defendant to file a written response to the complaint within a set period of time — usually 20 days. It is our duty as your attorneys to hire someone to deliver both a copy of the Complaint and the Summons to each defendant. This is called “Service Of Process.”

Within a few weeks of receiving the Complaint, the defendant must file an Answer. The Answer is a document which admits or denies the allegations in the plaintiff’s Complaint, and may also set forth additional facts and legal defenses to the plaintiff’s claims. For example, a defendant may deny that he was negligent, and also affirmatively assert that the plaintiff filed his action too late — after the expiration of the applicable statute of limitations. Every state sets deadlines for the filing of lawsuits, and some of them can be quite short — one year or even less in some instances. Once you know that you have a legal claim, it is always good policy to contact a lawyer immediately to make sure you don’t miss an important deadline.

Once the Complaint and Answer are on file, the case has begun.

Discovery

The discovery process is the means by which the parties to the case obtain two kinds of information: facts relevant to their claims and defenses, and the positions of other parties with relation to those facts. Through the discovery process, state legislatures and courts have tried to eliminate the “sporting theory” of litigation, whereby neither side knows the evidence that the other side will present. This sort of litigation often is not the best way to arrive at the truth, because one side of the case might have far better access to the relevant facts than the other. For example, in an automobile defect case, the defendant manufacturer obviously will have much better knowledge about how its product was designed, tested and manufactured than the individual who was injured by a malfunction or poor design choice. The discovery process helps to even the scales of justice.

The discovery process also helps to facilitate settlements. Since the parties have the ability to learn about the case from their adversaries, even before the trial date arrives, everyone involved with the case should have a good understanding of the relevant facts and, therefore, the merits of the lawsuit. Generally, a party that takes a realistic view of the strengths and weaknesses of his or her claims will be able to settle those claims with a defendant that takes a similarly realistic approach. Our jobs, as attorneys, is to give you the information you need to make informed decisions.

There are different tools available in the discovery arsenal. Most parties begin by serving the other side with interrogatories, which is simply a fancy word for written questions.

Interrogatories may be accompanied by requests for production of documents and things. For example, the defendant might ask you for a copy of your tax returns for the last five years, in order to understand the basis for your wage loss claims. If your claim implicates the condition of a physical item, for example a chainsaw, the opposing party might serve a request for production of that chainsaw so that its experts may inspect it.

A third discovery device is in the oral deposition, which essentially consists of an interview conducted under oath and transcribed by a court reporter. The deposition testimony of a party or witness is under penalty of perjury, and violations of the perjury laws can be prosecuted in the criminal courts regardless of whether the testimony was given in court or in a deposition. The deposition may be recorded by electronic means, typically a video, and the testimony can be used at trial if the witness becomes unavailable for various reasons.

Finally, the discovery rules permit one party to serve requests for admissions on the other parties. A request for admission is a written query asking an opposing party to admit the truthfulness of a certain factual proposition, or admit that a certain document is genuine. When a party responds affirmatively to a request for admission, the trial can be streamlined by introducing these admissions to the jury rather than consuming time proving the fact at trial.

Aside from making important decisions about filing and possibly settling your case, responding to the other parties’ discovery demands will be your largest responsibility as a litigant. You will need to produce relevant documents, answer relevant questions, and, most likely, appear for a deposition. None of these procedures are tests that you will “pass” or “fail.” You simply need to provide the documents that you have and the information that you recall. If you do not have something, or can’t recall a particular fact, that is fine.

Settlement negotiations

A very small percentage of the cases that are filed with the courts end up going to trial. Especially as the discovery process concludes and the parties learn all the facts and about each other’s positions, it is usually possible for reasonable people to appraise the risks and rewards of litigation and come up with a mutually agreeable compromise of the dispute. Like most attorneys, we believe that settlements are generally desirable because they help you to avoid the stress of litigation as well as the ever present risk that you will receive nothing at all from a jury.

While lawyers can settle a case simply by calling opposing counsel and talking, in many if not most cases the attorneys and parties need some encouragement, and the courts are there to provide that encouragement. It is probably safe to say that every court in this country favors the settlement of claims before it. Running our court system is an expensive enterprise, and especially in hard economic times, with governments tightening their belts, judges and court administrators are constantly seeking ways to handle their caseloads more efficiently. Obviously, avoiding long trials by facilitating settlements is something that every court likes to do.

California and most other jurisdictions have institutionalized the settlement process by enacting rules and procedures that encourage or require the parties to resolve disputes through various non-judicial mechanisms. California courts usually order the parties to appear for a mandatory settlement conference before a judge who is specially appointed to explore settlement. Federal courts in California require lawyers to provide their clients with a court booklet about “Alternative Dispute Resolution,” or ADR, processes.

There are various ADR methods. Sometimes the parties present their cases to a professional mediator or neutral evaluator. A mediator is usually trained as a lawyer and his or her role is to provide feedback to all sides about the merits of their positions, and attempt to broker an agreement between them. A neutral evaluator provides the feedback to the parties without becoming specifically involved in reaching a settlement.

Another non-judicial method for resolving a lawsuit is arbitration, which can be either binding or nonbinding. Like a mediator, an arbitrator is typically trained as a lawyer, and in many cases the arbitrator may have experience as an actual judge. The arbitrator’s role is to hear evidence and legal arguments and decide the case, functioning as both the judge and jury on all issues. If the arbitration is binding, the decision by the arbitrator is the final word, and usually there are no appeals. If the arbitration is nonbinding, the parties have the option of either agreeing to accept the decision, or re-litigating the matter in court.

It should be noted that sometimes the parties to a dispute have already agreed in advance to resolve all disputes through binding arbitration. For example, two parties to a contract may include an arbitration clause in the agreement. You may find arbitration clauses slipped into the small print of many agreements that you are forced to accept in order to obtain things like telephone or Internet service, consumer credit, investment services or even medical care. Note that many courts frown upon the use of these arbitration clauses by large companies that attempt to impose them on their customers, and under certain circumstances a court may refuse to enforce an arbitration clause and permit the dispute to remain in litigation. If you find yourself bound by an arbitration clause, your attorney may be able to nullify it through the courts.

Arbitration also might be required by various state or federal laws. However, even parties who are not contractually or legally obliged to bring their dispute before an arbitrator may agree to do so during the course of litigation.

Pretrial Motions

During the course of litigation the parties may attempt to defeat all or part of the other side’s arguments even before the trial begins, by filing what are called pretrial motions. The most important and common pretrial motion is the motion for summary judgment. A motion for summary judgment is a request by a defendant for dismissal of the case on the ground that the plaintiff’s claims have no factual basis and should be disposed of without a trial. The court can grant the motion, deny the motion, or in some cases spilt the decision by granting the motion as to some but not all claims.

There are many other pretrial motions that you might encounter in your case, and it will be your attorney’s job to discuss them with you.

Trial

The trial of your case is a daunting and exhausting exercise. It begins with jury selection — a process whereby the judge and the lawyers question jurors about their backgrounds and views and seek to identify those who could or could not serve as fair and impartial factfinders.

For the judge, the main point of the exercise is to identify and remove those prospective jurors who are unable or unwilling to follow the law as it is conveyed to them by the court. Surprisingly, a number of people are honest about saying that they disagree with certain legal principles. For example, in a criminal case where the death penalty is a possible penalty, some jurors may admit that they are morally opposed to the death penalty and could never impose it. Similarly, in some civil cases a prospective juror may indicate that he or she disagrees with the principle of punitive damages, and if punitive damages is a possible issue in the case, the court may remove that juror “for cause.”

For the attorneys, the process of juror selection is an opportunity to learn about the potential jurors, not only so that the judge can remove jurors “for cause,” but also so that the lawyers can remove a limited number of jurors by exercising what are called peremptory challenges. These peremptory challenges are used sparingly to remove from the potential jury pool those people who, although generally qualified to serve, have certain biases or attitudes that are unfavorable to the lawyer’s client. Jury selection is also an opportunity for the lawyers to learn about those potential jurors that do end up serving on the actual jury. Trials are much like dramas, and like actors, attorneys like to know who their audience is.

Both before trial, during jury selection and sometimes during the course of trial, the attorneys on both sides often will file and argue a number of motions in limine which seek to preclude the other side from using certain pieces of evidence, making certain arguments or saying certain things at trial. For example, a lawyer for a personal injury client may file a motion to prevent the defendant’s attorneys from introducing evidence or suggesting that the plaintiff is extremely rich, since the law provides that a party’s wealth plays no role in evaluating the damages that he or she is entitled to when injured.

Once the jury is selected the lawyers begin their presentation of the case. Typically the case proceeds as follows:

  • introductory instructions by the judge
  • opening statement by plaintiff’s counsel
  • opening statement by defendant’s counsel
  • plaintiff’s case in chief
  • defendant’s case
  • plaintiff’s rebuttal
  • final instructions by the judge
  • closing argument by plaintiff’s counsel
  • closing argument by defendant’s counsel
  • rebuttal argument by plaintiff’s counsel
  • jury deliberations
  • jury verdict

The jury renders its verdict by using a number of written documents provided by the judge. First, the judge provides the jury with jury instructions, which consists primarily of standardized guidelines on how to conduct deliberations and apply the law to the facts as they find them to be. In California, a government body called the judicial Council publishes an extremely detailed set of pattern jury instructions called CACI, which stands for California Civil Instructions. Typically the trial judge modifies and supplements these instructions to fit the needs of the particular case. The lawyers for the parties to the litigation are expected to submit proposed instructions to the judge and comment upon those submitted by others.

Along with the instructions, the jury also receives a verdict form, which guides the jury through the process of deciding the facts that are relevant to the case. In a personal injury case, the key facts determine who is liable for the plaintiff’s harm and in what proportions, and what’s the monetary value of the plaintiff’s damages is.

Judgment, Including Costs and Fees

After the jury renders its verdict the attorneys for the parties typically file a number of motions in order to overturn or amend the jury’s conclusions, or perhaps seek a new trial based on errors committed by the court or the jury. Assuming a new trial is not ordered, the court will enter a judgment of some sort which memorializes the jury’s findings and any changes thereto by the court, and states whether or not either party is liable to the other for money damages or other amounts.

For example, if the plaintiff prevails, the court will enter a judgment not only for the damages found by the jury, but also for various costs and expenses that the plaintiff incurred in prosecuting the case. In some types of cases, the plaintiff might be entitled to an additional award for the attorneys fees he or she incurred.

Conversely, if the defendant prevails the court may enter a judgment that requires the plaintiff to pay the defendant’s costs and/or attorneys fees. However, in the typical personal injury case it is unlikely that the court can or would require the plaintiff to pay the defendants attorneys fees.

Appeals

Any party that is dissatisfied by a trial court’s judgment has the right to appeal within a certain time – usually 30 or 60 days. The appellate court’s role is limited: for the most part it cannot overturn a jury’s decision unless it is completely without a factual basis. What the appellate court can do is review the legal decisions made by the trial court and correct them if necessary, by ordering changes to the judgment or possibly commanding a new trial.

Conclusion

Law students spend years studying the litigation and trial process, and as lawyers they spend many more years gaining the practical experience to know the ins and outs of a courtroom, so we cannot possibly give you a complete picture of how your case would progress in this modest website. However we hope that we have given you enough information to feel comfortable discussing your case with your attorneys and making the big decisions that are yours, and yours alone, to make.

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