Civil Litigation & Appeals

Introduction

Generally civil litigation involves a dispute which arises between two or more parties. By bringing a lawyer into the process, usually informal attempts at resolution have failed. At this point, the most common method used to resolve disputes and enforce one’s rights is by filing a lawsuit and using the legal system.

Depending on the amount of the dispute, the parties may be able to use "small claims" court to resolve the issue. Such is the case for cases wherein the amount involved involves less than $7,500.00, in California. In this instance you would NOT use an attorney, unless it involved the appeal process.

Damages, or dollar amounts over and above this amount will be in one of two courts: (a) either limited jurisdiction courts, or (b) unlimited jurisdictional courts. This civil process can be overwhelming for people in attempting to deal with a lawsuit of this caliber. We at McNamara & McNamara have years of experience in dealing with such court matters.

However, courts and formal lawsuits are not the only option for people and businesses involved in disputes. The parties can agree to have a mediator resolve a dispute, or may agree to binding arbitration of a dispute. These out-of-court options are two methods of "alternative dispute resolution." Also, sometimes contracts previously signed will bind you to these forums. A review of your documents will quickly reveal this course of action.

Weather you are suing someone, or being sued by someone, or even being called as a witness; a lawsuit is a complicated legal process, and it can be full of unpleasant surprises and frustrating delays. There are at least two parties to every action, and that means the schedule and the events which take place can be out of your hands. Nonetheless, the overall process to any civil matter is the same procedure or process. So you can gain at least get a general idea of what's likely to happen in any action, certain words and process are categorized below for your assistance.

Civil Litigation

A civil action, begins with a Complaint, usually accompanied by a Summons. A Complaint is a legal document that lays out the claims that the Plaintiff (the person or business bringing the lawsuit) has against the Defendant (the person or business being sued). Typically, a lawyer will prepare this document. In general, absent certain circumstances, you have thirty days to file a response with the courts after you have been served a lawsuit.

Summons and Complaint

A civil action is officially commenced in one of two ways. In some states a filing of the Summons and Complaint with the court commences the action. Typically, serving the Summons and Complaint on the other party commences the action. The Defendant then has to answer or respond to the Complaint within a certain time.

Answer

An Answer would be filed by the person or business who was served a lawsuit. This is the pleading which says what portions of the Complaint, if any, the defendant admits to, what the Defendant contests, what defenses the Defendant may have, and whether the Defendant has claims against the Plaintiff or any other party.

Cross Complaint

Also, if the person who was served has what is referred to as a Cross-Complaint, which is allegations back against the person or entity who filed the Complaint. Then this must be prepared and filed at the time your answer is filed. Otherwise, if done latter you need to seek permission from the court to do so.

Default

If the Defendant does not respond to the Complaint, the court may enter a default judgment against the Defendant. If the Answer contains a counterclaim, as Referred to above as a Cross Complaint, then a third-party complaint, the party against whom that claim is made also has to answer within a certain time.

Discovery

The parties exchange documents and other information about the issues relevant to the litigation, by a process called Discovery. Discovery can take three forms: written questions (usually Interrogatories) which must be answered under oath; document production; and depositions, which are formally transcribed and sworn statements taken in front of a court reporter or other court officer. The information is used in preparing the case for trial.

Motions

In many cases, one or both of the parties will try to dispose of the case, or a portion of it, by motion. Basically, the parties present to the court those issues that are not in dispute, either because the parties agree as to the facts, or because application of the law to the facts dictates a result. This is a hard concept for lay people. The theory is that, if a claim or lawsuit cannot possibly win, it is better for the judge to deal with it before wasting time or money. Unfortunately, motion practice can be lengthy and expensive.

Trial

If the parties do not reach an agreement, and if the matter is not disposed of by motion, the case will go to trial. In most civil cases, either party can choose to have a jury. The decision of whether or not to request a jury is an extremely important one, and seeking the advice of an attorney is highly recommended. At trial, the attorneys (or the parties, if they are not represented) present evidence and arguments for each side, and the judge or jury decides the unresolved issues. Once the judge or jury has reached a decision, the judge will order that Judgment be entered for the party who wins. The judge may also order that one party pay the other's attorneys' fees, although such awards are unusual.

Appeal

Either or both parties can appeal a judge's decision to a higher court. However, it is unusual for an appeals court to overturn a judge's decision.

Alternative Dispute Resolution

Sometimes, the parties can voluntarily resolve all their issues through alternate dispute resolution such as mediation or a negotiated settlement. The parties can also agree to binding arbitration, and some contracts require binding arbitration. If a settlement is reached, the settlement agreement resolves all issues between the parties. Typically, the court is either not involved or is involved only informally. Judicial approval of civil settlements is usually only required when one of the parties is a minor, or when there is a class action, or in other special circumstances that do not typically arise in most litigation..

Practice Areas for McNamara & McNamara

• General Civil Litigation
• Auto Accidents
• Bike Accidents
• Business Law and or Business disputes
• Civil Litigation and Appeals
• Contract Disputes
• Dog / Animal Bites
• Motorcycle Accidents
• Personal Injury
• Premises Liability
• Product Liability
• Real Estate

Legal Fees and Costs

Depending on the type of case you have, certain cases may be taken on contingency basis. This means a percentage of any recovery would be taken from the case before you get your recovery. Also fees and costs within the pendency of the lawsuit would be deducted. However, this is done in certain areas of actions such as personal injury type of matters.

The overwhelming number of civil matters involve paying legal fees (usually at an hourly rate) and other costs. We here at McNamara & McNamara try to use your money economically and as efficiently as possible for our clients. Most approaches to a case are discussed with you the client. We try to provide you with the best representation available. However, it always makes sense to consider the economics of a lawsuit, and we will address these things with you along each step of the process to the end goal for any lawsuit.

Some cases may not be appropriate for our office to handle, one example would be a class action lawsuit. Again, feel free to set up an appointment to discuss a given matter, and we will be happy to discuss this case. We are trusted in the community, and I will be happy to send certain cases to some qualified practices in the given area where you may need assistance.