Skip to content

Civil Litigation

What is civil litigation?

Civil litigation is the legal process by which a court will decide a controversy between two parties. The goal of civil litigation is to get to the truth of what happened and declare a conclusion that is fair. In coming to a conclusion that is fair, courts will often need to look to what is reasonable. The concept of reasonableness will often be a very important factor in determining the outcome. Sometimes there is a standard that determines what is reasonable using definite guidelines like medical treatment, but in others reasonableness will be determined by the overall context of what happened. So, each story may be different and will need to be treated individually.

In general, civil litigation concerns incidents where one party harms another in a way that causes some form of measurable damages. Once a determination that an injury has occurred and was caused by the defendant, the courts will seek to compensate the victim for those injuries. The term “injury” can mean many things. The injury may be physical, mental, or financial. The litigation process may involve many different events and may proceed all the way to a trial or may be settled by the parties before a trial would be necessary. The case may also be decided somewhere between the initial action and the end of a trial depending on various factors. Civil litigation does not involve criminal prosecution, but a single event may lead to both criminal and civil litigation. For example, if someone mugs you, beats you up, and steals your money, that person could be criminally prosecuted by the state for robbery and assault. The civil litigation that follows the criminal case would be the costs associated with that event such as hospital bills, lost income due to the injury, and the amount of money that was taken.

What is a cause of action?

A cause of action is the mechanism by which a party makes a claim of wrong-doing and implements the legal system to protect his rights and seek redress of injury. The term “injury” can mean many things. The injury may be physical, mental, or financial. In general, a cause of action is a label of the type of wrong that occurred when one party injured another. It names the injury that the plaintiff (the party that sues) suffered. The party that has been harmed will choose a cause of action, such as breach of contract, then the court, or a jury will address the nature of what happened by analyzing the evidence and listening to both sides.

How do I know if I have a cause of action? (standing and capacity)

Generally, you will have a cause of action if you personally have been injured physically or financially, and in limited circumstances, mentally. Your injury must be caused by the party you are suing, or an agent/employee of that party. A parent or guardian can also sue a party on behalf of a child.

The injury must be current, or within a limited period of time in the past. These are the factors that are labelled standing by the legal system. There is a period of time called a Statute of Limitations after which it may be too late to sue, where the case will in effect, become “stale”.

Capacity refers to a person’s ability to enter into a contract, as far as being of legal age and understanding the nature of the agreement. More commonly, capacity is an issue in resisting being taken advantage of, such as the context wherein an older person is influenced excessively when entering into a contract or writing a will. Some difficulty arises due to the fact that initially, a person is deemed to have understood agreements that they enter. There is a fundamental assumption that a person understood what they were doing. The difficulty arises when a party attempts to disprove that they had capacity in order to bring a lawsuit against the manipulator. This is a very sensitive area where a lot can go wrong legally, and emotions tend to be volatile. This is an example where you really are best off using our services. Please call for a consultation.

Contractual Capacity

Probate Capacity

What are the California causes of action? (common actions)

Personal Injury or Injury to a Person (battery, negligence, etc.)

Personal Injury

A personal injury case occurs where one party injures another physically, financially, or both. In limited circumstances, emotional distress may lead to a viable case. There are a wide range of events that fall under the category of a personal injury case, but some appear more often than others, like car accidents.


Negligence can be defined as a failure to adhere to a legally established standard of conduct that prevents undue risk of harm to others. Essentially, it is an action that arises when someone is not being as careful as they should be and they injure you because of that lack of care, like when someone causes a car accident because they are texting. What the “legally established standard” (or being as careful as they should be) is, will depend on what the defendant was doing. There will be a different standard for different activities. For example, there is a different standard for driving through a parking lot, versus open heart surgery. There are some requirements necessary to bring an action for negligence at a minimum.

  1. Duty—the person you are suing had a responsibility to be more careful.
  2. Breach—the person you are suing failed to act using the level of care and attention that a reasonable person would use in that setting, whether intentionally, absent-mindedly, or recklessly.
  3. Causation—The failure of the person you are suing to be careful/attentive caused your injuries. And it was predictable that someone would have been injured.
  4. Damages—you have been injured physically, mentally, financially, or some combination of those.

Negligence and Duty

Defenses to Negligence

Assumption of Risk—acknowledges that certain activities are inherently dangerous, and therefore the duty associated with keeping the activity safe will be lower. The idea here is that if you go skiing, you know that it is dangerous and that you get can get hurt. The average person knows that injuries are common when engaging in this pastime. So, the law acknowledges that an operator of a ski resort has a lower duty of care because there are inherent risks in the activity that cannot be decreased by their preventative actions. However, the resort is still responsible for the risks over which they have control. Thus, in this example, a ski resort would likely not be responsible for a skier twisting their knee on the slopes but would be liable for defect or malfunction of a chairlift that causes injury.

The basic concept here is that the duty of “ordinary care” will vary depending on the nature of the activity. The standard for operating a ski resort will not be the same as for food preparation, which would require a much higher duty to maintain safe conditions, because the risks can be easily minimized by the handler at a minimum cost.

Comparative Negligence—is simply the concept that if the person who is suing is partly at fault, they can still win the case, but their damages will be reduced in proportion to their own fault. For example, if you roll through a stop sign at 3mph, and Fast Eddie is coming from the side going 30 mph over the limit, does not stop at his stop sign, and runs into you, you will likely win a negligence case against Fast Eddie. However, you too were breaking the law. The concept of comparative negligence would be to calculate the proportion of fault mathematically. In this example, a court may find that Fast Eddie was 97% at fault. In that case, if your total damages were $100,000; you would be awarded $97,000 because you were 3% at fault and Fast Eddie was 97% at fault.

Obligations Imposed by Law


Assault—is defined as a defendant intentionally causing or threatening to cause a harmful or offensive contact with the plaintiff, who reasonably believed the threat or contact was imminent, and did not consent to the contact. The plaintiff must have been harmed, and the defendant must have been a substantial factor to that harm. Words alone or insults, no matter how offensive, will not rise to the level of assault.


Battery is defined as an intentional, offensive or harmful contact by another person without consent.  An example would be when you are hit by someone such that you require medical attention. The 2nd Restatement of Torts defines battery broadly as:

  1. § 13. Battery: Harmful Contact An actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results.
  2. Sexual Battery
  3. Domestic Violence

Defenses to Battery

  1. Self-Defense—a person is entitled to defend himself against injury using a reasonable degree of force. What is reasonable is determined by considering what a reasonable person would do to defend themselves under the same circumstances, but not more.
  2. Defense of Others—a person may use force to defend a third person against unlawful injury. The necessary degree of force is determined by the defendant’s subjective point of view.
  3. Defense of Property—A defendant may use nondeadly force where the intrusion is not privileged (allowed for other reasons, such as a delivery person coming onto your property to deliver a package). A demand to leave must first be made, and the force must be necessary to terminate the intrusion.
  4. Consent—if the plaintiff had consented to the activity previously, the defendant cannot be blamed unless he exceeded the scope of the consent. The textbook example of this is a person who plays football and competes in boxing consents to being hit. California law states, “He who consents to an act is not wronged by it.”

Fraud occurs when one party makes false statements that trick a victim and cause the victim to do something that harms them, usually paying money for services that are never rendered or are substandard. Fraud can occur in several ways including in contracts, wills, or by scams perpetrated over the phone or by email.


Defenses to Fraud

Statute of Limitations: 3 years

Parole Evidence Rule—a rule of law that prevents oral or written statements made prior to or contemporaneous with negotiations that are not in the actual written contract to be brought up to clarify or change the meaning of the written contract when the contract has been intended to be the full and final expression of the agreement. The contract is said to be “fully integrated.” This rule is NOT applicable to fraud cases. This is because fraud is considered a defect in the formation itself, and therefore the agreement cannot have been a full expression of the agreement with all the information required to make a free will transaction.

CA Statute of Limitations, Civil

Harm to Property (Conversion, Trespass)


Conversion is like the civil version of theft. However, conversion can occur without the actual removal of an item, but when that item is damaged so badly that it must be replaced in order to repair the damage, like when a car is “totaled”.


Defenses to Conversion

Statute of Limitations: 3 years 

Consent:  a defendant is not liable if the plaintiff consented to allowing the defendant to have possession of the item.

Returning the Property may not be a full defense: if the plaintiff’s injury has not been fully repaired by the return of the item, he may still sue for conversion.

Lack of Substantial Interference:  if the defendant can prove that there was not a substantial exercise of “dominion and control”, then the injury to the plaintiff could be negligible, thereby making litigation pointless.

Failure to Mitigate:  a plaintiff has a duty to minimize their own damages. For example, if you have your car at a storage facility, and it gets stolen, you have a duty to replace the car within a reasonable time. You cannot continuously rent a car for months on end to “rack up damages” or replace it with something far more expensive. The storage facility will only have to pay you for reasonable losses.

Remedies:  specific recovery of the property, damages, or quieting of title. (removal of liens typically)

CA Statue of Limitations, Civil

  1. Trespass is an action involving the wrongful entry onto the land or property of another person. An entry can be by a person, an object, or even by a non-physical entry such as bright light, loud noise, or odor.

A trespass may also include an invasion of privacy if someone photographs or records you when you are in a private setting. The requirements of this lawsuit vary somewhat. Click here to make a consultation.

Invasion of Privacy


Harm to Business (Interference with Business, etc.)

Interference with prospective advantage or contract

Interference with prospective advantage or contract—A civil case may also be viable when someone interferes with a person’s business or an existing contract. These cases typically involve cases where someone intentionally or recklessly harms your business knowing that what they have done will damage you or your business economically. The action can move forward with or without a contract in place, and may be actionable against a party who was not involved in the initial deal, depending on what happened.

Breach of Agreement

Breach of Contract

Breach of agreement (or breach of contract) takes many forms. This is an area that is highly dependent on specific facts and will almost always require a case-by-case evaluation in order to determine the best strategy. An action for breach of contract may involve events occurring before the contract was written (during negotiations), while the contract was being performed, or after the contract has been completed. This is a very common civil litigation, and an area where the story of what happened is very important. There is a different body of law for contracts for goods, versus services.

The Civil Code defines a contract as “an agreement to do or not to do a certain thing.” (C.C. 1549.) Once entered into, a contract gives rise to an obligation or legal duty, enforceable in an action at law. (C.C. 1427, 1428.) 

“There must be at least two parties to a contract, a promisor and a promisee, but there may be any greater number.” (Rest.2d, Contracts § 9.)  Not all contracts are required to be in writing; however, certain contracts are required to be in writing, such as contracts dealing with real property. 

Because contract cases allow such a wide range of causes of action, and defenses, please call for a consultation now!

Defenses: Contractual Defenses are so complex and the options available to defend oneself are so numerous, please call for a consultation whether you need to sue someone or are being sued yourself.

Statutory Actions (this would be claims like labor law violations, debt collections, breach of a duty created by statute like elder abuse…)


Statutory Actions—a statutory action may be less dependent on facts than some other actions, because these laws are more definite. However, reasonableness and facts may still play a role in the determination of the case. For example, if you are driving 66 mph in a 65 mph zone, you are guilty of speeding regardless of external factors. However, you could be found guilty of speeding in that same 65 mph zone for going 55 mph if there is ice on the road.

Elder Abuse—Elder abuse typically comes in two separate actions, financial abuse and neglect. Sadly, elder abuse can also come from physical, emotional, or sexual abuse, or abandonment.

Financial abuse occurs when: someone obtains (or assists in obtaining) from someone 65 years or older, an agreement (trust or will), gift, or financial gain that harms the plaintiff and the defendant was a substantial factor in harming the elder. There is a requirement that the defendant knew or should have known that the agreement or gift would harm the plaintiff. Financial abuse commonly manifests as: telemarketer fraud, misappropriation of assets for personal gain by an entrusted agent, forging of signatures, advance payment for lifelong care, predatory lending, or home improvement scams.

In California, elder abuse carries a four-year statute of limitations from the date of the intentional or negligent act. There are exceptions to the four-year limitation: in cases of physical or mental incapacity, or if the injury does not manifest until a later date. There is also an exception, or more accurately a delay, if the fraud or wrongful taking was hidden, in which case, the statute of limitations commences at the time when the plaintiff, knew or should have known of the fraud, by reasonable diligence.

Recently, California enacted the Elder Abuse and Dependent Adult Civil Protection Act. Elder Abuse and Dependent Adult Civil Protection Act. This act serves to both codify these laws, thereby making them more specific and viable as a vehicle for justice. One of the most important aspects of this Act is that the statute of limitations was increased to four years. Civil Actions for Elder Abuse, Statute of Limitations.

Neglect occurs when the defendant (or employer) had care or custody of the 65+ year old plaintiff and the defendant failed to use the degree of care that a reasonable person in the same situation  would have used in provision of: food, hygiene, clothing, shelter, or medical care (both physical and mental). Elder Neglect

Defenses to Elder Abuse Claims:

Statute of Limitations: the action is barred regardless of its factual viability.

Laches: the person who had the right to sue has waited too long which is unfair to the defendant because the excessive period of time poses a danger that evidence will be stale, memories fade, and a defendant will have to live in fear of a lawsuit for too long.

The difference between a statute of limitations and laches is one of origin. A statute of limitations is a code (a statute) created by the legislature with a specific framework, whereas laches is a common law rule that is decided by a judge’s discretion to prevent unfairness, it has no specific time framework but is based on reasonableness.

What are my remedies?

Damages—damages are what a court awards to a plaintiff (one who brings the lawsuit) to compensate them for proven injury or loss. Damages may also be those that flow naturally from the losses incurred due to the injury. Damages may sometimes be awarded for losses that are suffered indirectly from the original injury. 

Injunctions – Prohibitive and Mandated

Injunction—is a court order commanding or preventing an action. Injunctive relief is what a court will grant when money is not adequate to repair the damage done. For example, if your neighbor plays loud music every night in his backyard from 11pm to 3am, a payment of money is not likely going to be sufficient in repairing your rights or well-being. A court would then issue a prohibitive injunction requiring your neighbor to cease playing loud music during those hours.

A mandatory injunction is the opposite. It requires a party to act. For example, if your neighbor built a fence on your side of the property line, or erected a wall blocking your view, a court would hopefully order a mandatory injunction that he or she tear it down.

Injunctive Relief

Declaratory Relief

Declaratory relief—is a ruling a court makes without doing anything or awarding damages. The court is making a decision as to a question of law that has been brought up in the case and makes a ruling as to the rights and/or obligations of the parties based on the controversy. Typically, this is over a dispute as to what a written instrument requires or prohibits certain actions of a party.  For example, a dispute between neighbors over a right to cross over one neighbor’s land to get to the other neighbor’s land – i.e. easement disputes. Neighbor A may say Neighbor B may not cross over his (Neighbor A’s) land because the easement is no longer necessary for Neighbor B. Neighbor B claims that the written instrument granting him the right to cross-over Neighbor A’s land is not dependent on necessity and therefore it is not extinguished simply by the fact Neighbor B can access his land from another entry point through a public road. A court would then declare the rights as to the easement between the parties. In this example, it would depend on the initial reason for the easement and the burden of enforcing it or extinguishing it would have on either party. Again, what is reasonable. 

Declaratory Relief

Punitive Damages

Punitive Damages—are awarded in addition to actual damages (damages that are the direct result of the facts of the case). Punitive damages are awarded in cases where the defendant has acted with malice, recklessness, or deceit. Punitive damages are not available for every type of case. If awarded, the defendant’s stature and financial position will be considered, meaning the wealthier an individual or company is, the greater the award will be. Punitive damages are not often awarded because they require proving fairly extreme behavior.

Punitive Damages

What are the Statute of Limitations to a cause of action?

Statute of Limitations— There is a period of time called a Statute of Limitations after which it may be too late to sue, where the case will in effect, become “stale”. The statute of limitations varies depending of the type of case. Either way, the sooner one brings a lawsuit, the better because that is when people’s memories are the freshest and discovery (an exchange of evidence between the two sides) is easier. Whatever the case may be, it is vital that you act quickly because some cases have surprisingly short Statutes of Limitations. For example:  Medical malpractice—1 year from the date plaintiff knows or should have known about the injury, or 3 years from the date of the injury whichever is the earlier date.

Common Statute of Limitations

How do I commence a Civil Lawsuit? (general overview)

Make some effort to resolve the dispute yourself. Most courts require some effort to resolve the conflict yourself, usually in written form. These rules vary by jurisdiction typically at the county level.

Or…contact us for a consultation!

How do I file a default against the Defendant?

All lawsuits require what is called a complaint. It is the initial document that starts the entire process. The complaint is akin to an accusation of wrongdoing, also called a cause of action. (See Cause of Action above) Sometimes, the complaint will be a preprinted or online form where all that is needed is to fill in the blanks. These forms are provided by what is called the Judicial Council. In other cases, the complaint will require a detailed and researched type-written document on 28-line pleading paper.

In California, there are limited and unlimited cases. The most common factor that determines which category a case will fall under is the amount of money demanded by the complaint. For limited cases, the amount must be under $25,000. However, some cases cannot be filed as limited cases, such as child custody.

The correct venue (geographic location and specific type of court) must be selected for the case. This will vary depending on what kind of case it is. For example, if the case is a dispute over land, the case will be held in the same location as the land, except under rare circumstances. CCP 392 If the case concerns a car accident or a breach of contract, it will likely be held in the same location that the accident/breach occurred. CCP 393. The case will often be held where the defendant lives. CCP 395  If the defendant is a corporation, the case will be held where the company’s principal place of business is located. CCP 395.5

The complaint must be “served” on the defending party. Serving the party means that they are given a copy of the complaint by hand. In California, a person may be served at home or their usual place of employment. The plaintiff may not serve the defendant themselves, this must be done by some independent or uninvolved party, like the sheriff’s department, or what is called a process server. Prices vary for this service.

Copies must be made for yourself and the court. A good practice is to make an extra copy and store one electronically.

After having been served and answering the complaint, the process of discovery commences. Discovery is a process that helps promote adjudication of cases on the merits, instead of the tactic of surprise. Essentially, each side must produce persons or documents that they will using to prove their case. Although this process is designed to filter out cases that do not really need to go all the way to court, it can take some time, and that is one of the reasons why civil litigation can seem to drag on for long periods of time.


The Court will monitor the process of the Civil Action with status hearings and/or trial setting conferences. In most cases, the parties will agree to some informal settlement discussions called “mediation”. If the case is not resolved through mediation or by settlement, then it will be set for trial and both parties will go to trial. Most cases are set for trial within two years of filing the complaint.

Once all this is complete, the case must be filed in the appropriate court. Some counties have courts that handle certain types of cases exclusively. For example, court X in county Y on 123 Main St. may only rule on criminal cases, therefore a civil case may not be filed there. Each county has specific local rules that may govern aspects of filing such as the format of the document. Sometimes certain days of the week or times of day that allow for filing only certain types of cases. For example, a division of a civil court may only allow filing for a legal name change on Tuesdays and Thursdays in the morning hours.

Prices vary depending on the type of case and the amount of damages demanded. Typically, the prices range from $225-435.

I have been served with a Civil Lawsuit, what do I do? (general overview of answering or filing a motion to a complaint)

Filing an answer (or response) to a lawsuit is the first important step in defending yourself. It establishes that you are contesting the case and that you are going to make the plaintiff prove his case. The plaintiff then must prove his case in order to win.

An Answer is the most common way to respond to a lawsuit. The Answer is the defendant’s opportunity to admit or deny the specific allegations brought against them in the complaint. Any statements in the complaint that are not denied will be taken as true for the purposes of this case.

In the Answer, all defenses to the allegations of the complaint must be raised, and all facts essential to supporting a particular defense must be included. In addition to asserting denials, an Answer may assert any “new matters” constituting a defense CCP 431.30

These are called “Affirmative Defenses.” If you do not raise a particular defense in your Answer, you will be prohibited from using in the immediate case or raising it later.

Another vital aspect for defending a lawsuit is meeting the deadline to respond. For most cases, the maximum time allowed for a response is 30 calendar days after you have been served. CCP 412.20  If the final day lands on a weekend or holiday, you have until the end of the next business day.

In the Answer, all defenses to the allegations of the complaint must be raised, and all facts essential to supporting a particular defense must be included. A General Denial denies all allegations in the complaint.

In addition to asserting denials, an Answer may assert any “new matters” constituting a defense CCP 431.30 (b)(2)These are called “Affirmative Defenses.” Affirmative defenses are defenses the defendant raises, which if found credible, will negate civil liability Affirmative defenses may be asserted even while denying allegations within the complaint. Essentially, an affirmative defense is a reason why a defendant should not have to pay damages even if the facts in the complaint are true.

Affirmative defenses may also raise new matters not addressed in the complaint. If well written, they may grant a defendant leverage in settlement negotiations or result in a win. Affirmative defenses must meet all required elements and be supported by facts. For example, in defending for an alleged breach of contract, one might assert a defense of fraud. In order for this to succeed a defendant must prove: that the plaintiff made a knowing, false representation of material fact intending to deceive the defendant, and did in fact deceive the defendant, causing them damages. In this example, the defendant will need to supplement the affirmative defense with facts.

If you do not raise a particular defense in your Answer, you will be prohibited from using it later.

A demurrer is a claim by a defendant that an allegation or allegations in a complaint do not provide a legally sufficient reason to bring a lawsuit against the defendant. A demurrer does not question the truth of the facts or the plaintiff’s ability to prove them. It only questions the legal sufficiency of an allegation. A demurrer can be that the complaint does not state a cause of action, is unclear, the plaintiff does not have the capacity to sue, or there is an unresolved case pending between these same two litigants.

Various Objections to Pleadings

If a demurrer is overruled, the defendant must file an answer to the original complaint within 10 days. If the demurrer is sustained “with leave to amend”, the plaintiff gets a chance to correct the errors in the complaint, serve the defendant with the amended complaint—and the case will continue. If the demurrer is sustained without leave to amend, the case is usually dismissed. There are no fill-in-the-blanks demurrer forms, they must be written on pleading paper.

A motion to quash attacks the actual method a plaintiff used to serve the defendant. This method can succeed by showing: a defect in the service (delivery), or in the summons itself, a failure to name the defendant, or a failure to deliver the summons altogether. If you have a claim that arises out of the same transaction or series of events as the plaintiff’s lawsuit, you must file a cross-complaint along with your answer. A failure to file a cross-complaint will require filling out complicated paperwork to ask the judge for permission to file your cross-complaint.

What are Law and Motions?

This is a placeholder tab content. It is important to have the necessary information in the block, but at this stage, it is just a placeholder to help you visualise how the content is displayed. Feel free to edit this with your actual content.

What is Discovery?

Discovery is a process that helps promote adjudication of cases on the merits, instead of the tactic of surprise. Essentially, each side must produce persons or documents that they will using to prove their case. Although this process is designed to filter out cases that do not really need to go all the way to court, it can take some time, and that is one of the reasons why civil litigation can seem to drag on for long periods of time.


What is Mediation?

Mediation in civil litigation is a form of alternative dispute resolution (ADR) wherein a neutral third party, the mediator, facilitates communication and negotiation between parties involved in a legal dispute. The aim is to help the parties reach a mutually acceptable agreement outside of the courtroom to reduce the time and costs that comes with civil lawsuits. Here’s a general overview of the process:

  1. Voluntary Participation: Participation in mediation is typically voluntary, meaning that both parties must agree to engage in the process. However, in some jurisdictions, courts may require parties to attempt mediation before proceeding to trial.
  2. Selection of Mediator: Parties can select a mediator mutually or may opt for a mediator appointed by the court. The mediator should be impartial, with no stake in the outcome of the dispute.
  3. Preparation: Before the mediation session, each party may prepare by gathering relevant documents, evidence, and legal arguments to present their case effectively during the negotiation.
  4. Mediation Session: During the mediation session, all parties involved, along with their attorneys if represented, meet with the mediator in a neutral setting. Nowadays, these sessions are almost always done virtually. The mediator explains the process and ground rules for communication and negotiation.
  5. Opening Statements: Each party typically has an opportunity to make an opening statement outlining their perspective on the dispute and desired outcomes. In some mediations, a brief is submitted to the mediator before the session to give the mediator information on the dispute.
  6. Private Conversations with the Mediator: The mediator will usually meet separately with each party to understand their interests, concerns, and potential settlement options confidentially. The mediator may shuttle between the parties, conveying offers and counteroffers.
  7. Negotiation and Problem-Solving: Throughout the mediation process, the mediator helps the parties identify common ground, explore potential solutions, and negotiate the terms of a settlement agreement. The focus is on reaching a mutually acceptable resolution that addresses the underlying interests and concerns of all parties.
  8. Drafting Settlement Agreement: If the parties reach an agreement, the terms are typically documented in a settlement agreement. The agreement outlines the terms of the resolution, including any financial compensation, actions to be taken, or other remedies.
  9. Court Approval: Once the settlement agreement is drafted, the parties may choose to have it reviewed and approved by their respective attorneys. In some cases, the agreement may need court approval to be enforceable.
  10. Enforcement: Once approved, the settlement agreement becomes a legally binding contract, and both parties are obligated to adhere to its terms. Failure to comply with the agreement may result in enforcement actions through the court system.

Mediation offers several potential benefits in civil litigation, including cost-effectiveness, confidentiality, flexibility, and the opportunity for creative problem-solving. However, it’s essential to recognize that not all disputes are suitable for mediation, and in some cases, litigation may still be necessary to resolve conflicts.

What happens at Trial?

In civil litigation, a trial proceeds through several stages, each with its own procedures and objectives. Here’s a general overview of the trial process:

  1. Pleadings: The litigation begins with the filing of a complaint by the plaintiff, which outlines their legal claims and the relief sought. The defendant responds with an answer, either admitting or denying the allegations and asserting any defenses.
  2. Discovery: Discovery is the process by which parties obtain evidence from each other and third parties relevant to the case. This may include requests for documents, interrogatories (written questions), depositions (oral testimony under oath), and requests for admissions.
  3. Pre-trial Motions: Before trial, parties may file various motions to resolve legal issues or disputes that arise during the litigation process. These motions may include motions to dismiss, motions for summary judgment, or motions in limine to exclude certain evidence.

In 90% of cases, the issues will be resolved by this point, either through a settlement agreement or a mutual walk away. If mediation occurs, it will normally take place before this point as well, making it the case more likely to settle. However, if not, the trial proceedings are set by the court and trial will begin.

  1. Jury Selection (if applicable): In cases where a jury trial is requested or required, the process of jury selection, known as voir dire, takes place. Attorneys for both sides question potential jurors to determine their suitability to serve impartially on the jury.
  2. Opening Statements: Attorneys for both parties present opening statements, outlining their respective positions and previewing the evidence they intend to present during the trial.
  3. Presentation of Evidence: Each party presents their case through the examination of witnesses and the introduction of exhibits (documents, photographs, etc.) to support their arguments. The rules of evidence govern what evidence is admissible during trial.
  4. Examination of Witnesses: Witnesses are called to testify under oath and are subject to examination by the attorneys. This includes direct examination by the party who called the witness and cross-examination by the opposing party.
  5. Closing Arguments: Attorneys for both parties deliver closing arguments, summarizing the evidence presented during the trial and urging the judge or jury to find in favor of their client.
  6. Jury Instructions (if applicable): If the case is being tried before a jury, the judge provides instructions to the jury regarding the law applicable to the case and the standards they must use in reaching their verdict.
  7. Deliberation and Verdict (if applicable): If the case is tried before a jury, the jury deliberates in private to reach a verdict based on the evidence presented and the instructions provided by the judge. If the case is tried before a judge (bench trial), the judge will issue a verdict.
  8. Post-Trial Motions and Appeals: After the trial, parties may file post-trial motions, such as motions for judgment notwithstanding the verdict or motions for a new trial. If dissatisfied with the outcome, parties may also appeal the decision to a higher court.

Throughout the trial process, the court oversees the proceedings, ensures adherence to procedural rules and standards of fairness, and ultimately renders a judgment or verdict based on the evidence and applicable law.

What happens after Trial?

After trial proceedings in civil litigation encompass various activities that occur following the conclusion of a trial. Here are the possible paths after trial concludes:

  1. Judgment: Following the trial, the court will issue a judgment based on the verdict rendered by the jury (if applicable) or based on the findings of fact and conclusions of law made by the judge. The judgment determines the legal rights and obligations of the parties involved in the case.
  2. Post-Trial Motions: After the judgment is entered, parties may file post-trial motions seeking to challenge the verdict or aspects of the trial proceedings. Common post-trial motions include motions for judgment notwithstanding the verdict (JNOV), motions for a new trial, or motions to amend the judgment. These motions are typically based on alleged errors of law or issues with the conduct of the trial.
  3. Appeals: If a party is dissatisfied with the judgment or rulings made by the trial court, they may have the right to appeal the decision to a higher court. The appeals process involves submitting a notice of appeal and appellate briefs, and may also include oral arguments before the appellate court. The appellate court reviews the trial court’s decisions for errors of law or abuse of discretion but generally does not re-weigh the evidence or hear new testimony.
  4. Enforcement of Judgment: If the judgment requires one party to pay money to another, the prevailing party may need to take steps to enforce the judgment if the losing party does not voluntarily comply. This may involve various enforcement mechanisms, such as wage garnishment, bank levies, or liens on property.
  5. Costs and Attorney’s Fees: In some cases, the prevailing party may be entitled to recover certain costs incurred during the litigation process, such as court fees and expenses related to obtaining evidence. Additionally, prevailing parties may seek to recover attorney’s fees if provided for by statute or contract.
  6. Settlement Negotiations: Even after a trial has concluded, parties may continue to engage in settlement negotiations to resolve any remaining disputes or to address issues that arise as a result of the trial outcome. Settlement negotiations may occur directly between the parties or with the assistance of mediators or other neutral third parties.
  7. Compliance with Judgment: Once the judgment is final and no further appeals are pursued, parties are generally required to comply with its terms. Failure to comply with a judgment may result in enforcement actions by the prevailing party or further legal proceedings to compel compliance.

Overall, after trial proceedings in civil litigation aim to address any remaining legal issues, ensure compliance with court orders, and provide a mechanism for parties to seek review or relief from adverse judgments or rulings.