What Happens When You Get Sued

Getting sued, whether as a business or an individual can be frustrating, aggravating and expensive. The purpose of this article is to describe in broad strokes the different parts and phases of a typical business lawsuit.

Before a lawsuit is filed, someone has a grievance with you or your business. Some typical grievances are that someone claims that you or your business owes them money, breached a contract, physically and/or emotionally injured them, created a faulty product or service negligently (e.g., construction), misrepresented something related to a transaction (Fraud/Misrepresentation), violated Elder Abuse laws (over 65), in some way cheated in your business or advertising so that your business gained an unfair advantage (Unfair Competition Bus. & Prof. Code §§17200), etc. In a complaint, these reasons will become causes of action.

Settlement Opportunity I.

The first thing that generally occurs is someone makes a claim or demand against you or your business for one of the above issues. At this point, you can try to settle their claim. Consider their side of the story in a fair light and think about if you are willing to compensate them for their trouble. Another good reason to settle is known as nuisance money, or paying them to go away. It is almost always cheaper and easier to settle with someone than go through the litigation described below. Litigation is expensive, aggravating and will go on from two years, or more. You may be mad and unwilling to settle now but consider the stress you will endure over the next two years thinking about the expenses and the risks of litigation every night as you fall asleep, for two years, or more. Litigation takes its toll on regular people and very few people have the stamina, willpower and finances to see it through.

Complaint.

If you can’t or won’t settle the claim, the Plaintiff will file a civil Complaint against you or your business, or in all likelihood, both. You are now the Defendant(s). The complaint can be filed in state superior court or federal court. The complaint describes the facts and the causes of action in legal terms and asks for damages against you.

Personal Service.

After filing the complaint, the plaintiff is required to serve you with the complaint by personal, hand delivery. Once served, you will have 30 days to Respond to the complaint. Your response can be either an Answer to the complaint or a challenge to the sufficiency of the complaint. If you file an Answer, you are generally notifying the court that you deny every aspect of the complaint; you can also admit some parts and deny other parts. Later, if the case gets all the way to a trial, the evidence will be tried in court where the jury will decide what the facts are and the judge will decide what the law is (in a court trial, the judge decides both facts and law), and ultimately one side will be the prevailing party.

Demurrer.

Challenging the sufficiency of the complaint. There are a number of requirements to drafting a strong civil complaint and when challenging the complaint, it is your opportunity to tell the court what is technically wrong with the plaintiff’s complaint. This has nothing to do with the facts of the complaint. This challenge to the sufficiency of the complaint explains to the court what is wrong with the contents, or pleadings, of the complaint. In order to plead a case correctly, every element of the cause of action must be stated. If any element is left out or stated incorrectly, you inform the court that one or more parts of the complaint fail to allege facts sufficient to state a cause of action. Other reasons include that the plaintiff did not attach a copy of a contract to the complaint, doesn’t have the correct type of relationship to you or the cause of action (standing), or the complaint was filed in the wrong court, etc. Each party files briefs with the court arguing their position.

Hearing and Ruling.

The court will hold a hearing on the demurrer and either agree with you (sustain) or disagree with you (overrule). If the court agrees with you, almost always the court will give the plaintiff a chance to revise the complaint and file a first amended complaint. This can happen two or three times until the court believes the plaintiff cannot possibly allege facts sufficient to state a cause of action and has been given enough chances to try. If the plaintiff cannot prepare a reasonable complaint after three or four tries, the court can dismiss the complaint permanently, with prejudice. This rarely happens because courts prefer to decide cases on the merits, not on technicalities.

If the plaintiff can fix the complaint to the satisfaction of the court, you will be required to file an Answer.

Discovery.

After your Answer is filed, the case is at issue and the parties can argue about the facts of the case; who is right, who is wrong, how much is owed, what needs to be fixed or returned, etc. Under the discovery rules, the parties exchange all documents and information related to the case. The parties exchange Interrogatories, Requests for Production of Documents, Requests for Admissions, take each other’s Depositions and get to inspect any physical aspects of the case, such as a damaged building, car, or person, in the case of a personal injury.

Interrogatories, both form and specially prepared, are a list of questions each party must answer; Request for Production of Documents requires the parties to exchange all documents requested, plus any documents they intend to use at the trial. Requests for Admission require a party to either admit or deny specific facts. Depositions are interviews or interrogations by the other party, under oath. Examinations or inspections allow the parties some access to the physical facts, such as inspecting a property, inspecting a damage, or inspecting an injury, by a qualified medical doctor working for you.

In Discovery, the law requires that the parties be completely honest, no matter if the answer or documents help or hurt their case. Typically, each side’s lawyer will try to use careful or crafty language to hide the information, answer as little as possible or otherwise try to avoid producing all the documents, good and bad. Some lawyers are willing to go father than others in hiding the truth or avoiding sharing the information; that’s between you and your lawyer. One of the ways the law attempts to get at the truth is that all Discovery responses are under penalty of perjury. If one side tells a lie, and the lie can be proven, then that lie can be used against them in court, either by telling the judge and jury that this person and their lawyer cannot be trusted, on any subject, because they’re liars, or in egregious situations, the court can issue a penalty, such as denying a certain cause of action, or issuing a monetary penalty, payable to the court and/or the other party.

Settlement Opportunity II.

After discovery, when the parties have exchanged information and documents, you may feel that you now understand the plaintiff’s grievance and be willing to offer money in settlement. Generally, this will be more money than during Settlement Opportunity I. Sometimes, the plaintiff and their attorney will realize their complaint isn’t so strong and be willing to accept less money than they first hoped. If there is a settlement, both parties will still have to pay their own attorneys for work up to this point, that means the settlement value will also include attorneys’ fees, on both sides. The plaintiff gets less money after their attorney has been paid and you, the defendant pay your own attorneys’ fees, in addition to the settlement money. One reason why it is better to settle earlier.

Alternative Dispute Resolution.

If the parties still cannot reach an agreement, the court can send them to mediation or arbitration. Mediation is when the parties meet with a retired judge or experienced attorney and try to reach an agreement. Mediation is not binding on either side, and provided the parties participate in good faith, they can refuse to settle and end the mediation.

Arbitration can be binding or non-binding. In either case, the parties have a trial that is less formal and time consuming than a trial before a judge in court. Each side has an opportunity to present their evidence and witnesses and to examine the other party’s witnesses and argue the facts and law of their case to the arbitrator. In a non-binding arbitration, either party can reject the arbitrator’s award and insist on trial. In a binding arbitration, the arbitrator’s award is taken to the court and converted into a final judgment.

There are both court appointed mediations and arbitrations and private mediations and arbitrations. With court appointed mediators and arbitrators, you’ll have less of the mediator’s or arbitrator’s attention and time, because they are typically doing this work as a public service or at highly discounted rates. Private, highly experienced mediators and arbitrators are expensive, generally from $3,000 to $10,000 per day. Experienced mediators and arbitrators are usually retired judges and/or experienced attorneys who have experience with the laws in question and have also studied the psychology of plaintiffs and defendants and learned skills to help convince them settle or arbitrate cases.

If ADR fails, the parties resume their march to trial.

Expert Witnesses.

After initial Discovery, if the case cannot settle, each side looks for expert witnesses to support their side of the case. If you thought the demure or discovery phases were expensive, watch out, because this is the beginning of where the real money is spent. Expert witnesses are just that, experts in their field; scientists, academics, medical doctors, human factors experts, etc. But that’s not all. The really good expert witnesses are not only experts in their fields, but they also have lots of experience testifying before a court or jury. These highly sought after experts are inherently confident, show no sign of nervousness, know how to bounce back from tough impeaching questions and are just plain likeable and charming people. The more expert, experienced, confident and likeable an expert is, the higher their fees. Top experts, scientists, academics, medical doctors can easily charge $1,000 per hour, and more. The time to review the facts of your case, talk to you and your attorney, write a report/opinion, give an expert witness deposition before trial and finally testify on your behalf at trial, adds up to anywhere from 15 to 50 hours, and up. Now you will have wished you had settled.

At some point before trial, each side has the opportunity to take the deposition of the other’s expert witness. Expert witness depositions are under penalty of perjury and each attorney can ask the other side’s expert witness what their expert opinion is and how they arrived at that opinion.

Settlement Opportunity III.

Now that each party has had their expert review the evidence and give opinions, maybe that will be enough for one party to give in and settle. If not, now is the chance to try and convince the court that given all the evidence exchanged through discovery, there are no more facts to decide and one side should win and the other side lose.

Final Motions.

If all the documents, information and deposition testimony can be organized by either the plaintiff or defendant to show, as a matter of law, that one side is absolutely correct, the court can make a final decision, a summary adjudication/judgment, on one or more of the issues and causes of action, that one side is entitled to judgment on all or some issues, and all or part of the case will be over.

Summary Judgment and Adjudication.

The purpose of summary judgment and adjudication is to give the court the opportunity to see all the evidence and decide if all the factual issues are proven or disproven by the evidence, such that either the Complaint has no merit, or the Answer contains no viable defense. Keep in mind that like the demurrer, the research, legal drafting, organization of relevant documents and other evidence required for a putting together a motion for summary judgement is very time consuming and expensive. A court will only rule in favor of a motion for summary judgement if the evidence is organized properly and the law and facts are clear so that the court can decide that there are no triable issues of material facts remaining for one or all of the causes of action. A totally successful motion for summary judgment is rare, but when it happens, the lawsuit is over and a court or jury trial has been avoided.

Trial.

If, however, the court decided that there remain triable issues of material facts, the parties will be ordered to trial. For the trial, any one side can demand a jury trial, or the parties can agree to a court trial. With a jury trial, the jury will be the trier of the facts and the judge will be the trier of the law; in a court trial, the judge decides both facts and law.

Trial preparation is the most time-consuming part of a lawsuit. If the parties have still not come to some agreement, trial is expensive and unavoidable. An attorney can spend anywhere from 7 to 20 days, full time, often with a team of other attorneys, to prepare for trial. In addition to preparing all the evidence and trial briefs, witnesses must be subpoenaed, expert and non-expert (percipient) witnesses must be prepared and practice testifying, trial briefs and jury instructions must be drafted.

When the day of trial comes, and everything has been prepared, the court still has a few tricks remaining to get the parties to settle and avoid wasting the court’s time with the case. The court will generally order both parties to try and settle the case again at a Mandatory Settlement Conference (“MSC”). This can take a half or full day. If the parties have still not reached an agreement and insist on using the state’s and county’s resources and court time, in most cases the judge will then advise the parties that there are no courtrooms available and will send the parties home, to return in a day, a week or several months. Courts’ can effectively use the unavailability of a courtroom to pressure one or both sides into settlement. The idea being that parties can settle today, or they can come back in six months and see if a courtroom will be available at that time, with the chance of being turned away again.

When stubbornness meets with tenacity and unlimited resources, the parties will finally get to trial where they can present their case to the jury. Jurors are just regular people. Some will have attention spans that last 2 minutes, others will be people with their own problems, annoyed that they have to spend a week or two listening to two sides argue over money. Other jurors, although perfectly normal as people, will have limited abilities to comprehend complex issues and expert witness testimony. And still other jurors can have an agenda of their own, maybe they dislike the way you look or what you represent and have determined to decide against you for that reason alone. If you’re lucky, one or more of the jurors will be thoughtful, conscientious, focused and blessed with abundant patience; hopefully one of these people will become the head juror and will guide the others through a thorough deliberation.

In the end, juries can be very unpredictable. You never know who or what you will get from the jury pool.

Many experienced business people know that if you’re going to trial, you’ve already lost because you have used a huge amount of your personal and/or business resources (time and money) to prove your point. In the rare case, someone can be awarded millions of dollars, making the previous two or three years worthwhile. In most cases, however, the dollar amount of the final judgment will not likely justify the time and money spent; time and money that could have been used to take your friends and/or family on a luxury vacation to London and Paris, for several months.

Where a court or jury trial is unavoidable, for whatever reason, prepare yourself for hard work, costs, attorneys’ fees and stress over a period of one to several weeks. Choose an attorney who has the experience and ability to give your case time necessary for a successful result. Most cases can be won and lost during the discovery and motion phases of litigation or settled before the costs and fees get out of control. It is a fact that over 95% of all cases settle before trial because litigation is expensive and settlement is usually the smart decision. Litigation can take on a life of its own, and once it begins, it can be very difficult to stop, especially if your opponent is tenacious. Litigants also sometimes believe that since they have already spent a small fortune, they should continue and see it through to the end. It is important to find a lawyer you can grow to trust, who can advise you the best time to settle a case or the best case to take all the way through trial.