So you found yourself in the middle of a lawsuit.  What can you expect?  While litigation can be unpredictable, there are aspects of the process that are fairly predictable.  Understanding the process can help you make better decisions about whether, or for how long to pursue litigation, and also when to try to settle your matter.  Depending on the type of litigation, if you lose, you may have to pay the other side's court costs, or attorney's fees.  In some suits the attorney's fees may exceed the jury's damage award.  Your opponent may seek bankruptcy protection to avoid paying a judgment even if you win.  You should ponder these considerations and more before deciding your best course of action.

If you are the plaintiff, it's probably unwise to try to settle before you've conducted at least some discovery.  Discovery is the part of the process where each side investigates the facts of the case and includes: (1) requests for admissions, (2) interrogatories, (3) requests to produce documents, (4) depositions, and other evidence gathering techniques.  Attorneys who are quick to offer your case for settlement without conducting at least basic discovery may be selling your case short.  Fully developed facts are key to a reasonable settlement.  In most cases, until you've deposed witnesses and compelled the production of documents, it is difficult to make predictions about how you will fare at trial and thus difficult to know what a fair settlement is.  However, some cases do present well for pre-discovery settlement, especially those where the facts are fairly obvious and not very much in dispute.

What to Expect in Litigation

A lawsuit begins with the filing and service of a complaint and summons.  Before filing a complaint, the plaintiff's attorney may try to settle the case by writing one or more demand letters to the defendant.  We believe that a useful demand letter is highly detailed with a discussion of the facts and law and often accompanied by some evidence supporting the claim.  As inexperienced attorneys and plaintiffs quickly learn, institutional defendants don't often "roll over" and settle merely because a demand letter offers the choice of settlement or litigation.

In California state courts may dismiss a case for failure to serve a summons only after two years.  CCP §583.420(a), and in federal courts the plaintiff must serve the complaint and summons within 120 days after filing it with the court.  FRCP 4(m).

In California state courts Defendants have 30 days from receiving service of the complaint to file a responsive pleading, which may be either an "answer" or a motion called a demurrer that challenges the complaint's sufficiency.  CCP §412.20(b).  In federal court, the defendant has 20 days to file a responsive pleading, or within five days after the notice of removal from State court is filed, whichever is longer.  FRCP 81(c)(2).

A demurrer or motion to dismiss is the defendant saying that even if the court assumes that everything the plaintiff said is true, he did not make out a claim that the law recognizes.  It may be that the egregious conduct the plaintiff describes is in fact not actionable.  The defendant may argue that the statute of limitations expired barring the plaintiff's claims.  It is possible that the plaintiff does not have standing to bring the suit because she does not have a personal interest in the matter, or has not suffered a real injury.

If the defendant files a demurrer or motion to dismiss, it will include notice of the date, time and place of a hearing where a judge will make a decision whether to dismiss some or all of the plaintiff's claims and whether to do so "without prejudice" meaning the plaintiff may amend the complaint or file a new one, or "with prejudice" meaning that the plaintiff may not bring the same claim against the same defendant again.

After a plaintiff files the complaint and the defendant files an answer, the court will generally order a case management conference where the parties are supposed to discuss the issues in dispute and make estimates of how long it will take to conduct discovery and whether any claims or issues can be dismissed or resolved.  The court may order several case management conferences and try to pressure the parties into mediation or arbitration to help the parties understand the weaknesses in their own cases.

The parties then commence discovery, which is the process through which each party forces the other to answer questions and produce documents and other evidence that helps to focus the issues for litigation.  Discovery procedures include:

• Interrogatories: written questions that the responding party must answer under oath
   
• Requests for production of documents: demands for the responding party to produce the documents requested
   
• Requests for admissions: requests to the responding party to confirm which allegations they admit and which they deny
   
• Depositions: personal interviews conducted by one party's attorney of another party or a witness under oath and in the presence of a court reporter
   
• Subpoena Documents and Records: parties may subpoena documents and records from third parties not involved in the litigation, but who have documents relevant to resolving the issues presented in the litigation

If a party does not comply with a discovery request, the requesting party may make a motion to the court to compel the responses.  If the party does not comply with the discovery request after being ordered by the court to do so, the judge may sanction that party.

About 90 to 95 percent of lawsuits are settled without trial.  The courts are designed to pressure parties into settling because it is a more efficient result.  Often in state court litigants will be ready to empanel a jury and only a few hours before trial, administrators will announce that the courtroom is no longer available and delays of months will follow until a space is found.

In those moments of fear and reflection, the parties often consider the uncertainties of trial and the possibility of losing.  Sometimes they conclude that settlement is wise.

In the absence of settlement, the parties try their case before either a judge or jury depending on what the parties requested and the type of case presented.  Then, after deliberation, the decision maker renders a decision.  It is possible to make additional motions before and after the verdict as well as to appeal the verdict to a court of appeal.