Cota & Zeiler APC

These are our most frequently asked questions about civil litigation.
  • What is civil litigation?
    Almost any kind of legal issue can wind up in court. We use the term "civil litigation" to refer to litigation in cases that are not criminal prosecutions, bankruptcies, family law matters or administrative matters such as DMV hearings or Worker's Compensation. Civil litigation is a broad area encompassing wills, contracts, real estate or other transactions that have problems which can only be addressed in court.
  • What should I do if I've been served with a lawsuit?
    If you have been served with a California lawsuit, you have 30 days from the date of the service to file an Answer or other responsive pleading laying out an appropriate defense. After that time, the plaintiff will seek to enter a default judgment. Once you are in default, you will not be able to file a response or defend yourself without the court's permission. If you are served with any kind of lawsuit, whether it is a civil lawsuit for damages, or a petition for dissolution of marriage, you should immediately consult with an experienced attorney. An attorney will review the filings and discuss the case and any available defenses with you.
  • I'm an officer in a corporation that has been sued. Can I appear in court to explain what happened?
    No. In California, a corporation may only be represented in court by a licensed attorney. This is true even for small or closely held corporations. Trial judges in California will not consider any arguments or pleadings filed by a non-attorney attempting to represent a corporation. If your corporation has been sued in California, you must retain an experienced attorney to represent the corporation.
  • What is the litigation process?
    Briefly, the plaintiff files a document with the court outlining the facts of the case and explaining why the defendants should have to pay or why the court should do something about it. This is called a complaint. The defendant must either file an answer laying out defenses, or a special kind of motion (a demurrer) explaining why plaintiff's alleged facts don't entitle him or her to relief. The defendant can also bring in other parties at this time or take other actions. The parties will usually use the court's "discovery" process to obtain more information from one another. When the parties feel they have an adequate understanding of the facts of the case, the court will order them to participate in some type of Alternative Dispute Resolution ("ADR"), usually mediation or arbitration, in an effort to settle the case without a trial. If the settlement effort fails, the dispute will be resolved by a trial. After trial, if the losing party feels the decision was reached by improper or flawed means, they may file an appeal.
  • What is discovery?
    In most places in the United States, "trial by surprise" is a thing of the past. Discovery is the process by which the parties to litigation seek to obtain information which is reasonably likely to lead to admissible evidence relevant to claims or defenses in the suit. Under both federal and California law, discovery is broadly available, and includes written discovery and depositions. Written discovery allows the parties to demand written answers and admissions from opposing parties. Depositions allow the parties to obtain information through live testimony before trial in the presence of a certified shorthand reporter or audio/video recording so a transcript can be made. The information obtained in discovery may be extensive and will be used to prepare the case for trial or for various pre-trial motions to get a tactical advantage.
  • What is motion practice?
    Under California law, once litigation has started, any request that the court do something is a "motion." Most often, motions are made in writing, with enough notice to the other parties to allow a written response before the hearing. Motions are most often used to address emergency situations or to enforce pre-trial rights, such as the right to discovery. Some motions are "procedural" in nature, and affect only the conduct of the case. Other motions are "dispositive" in that they will dispose of one or more issues, or even the entire case, before trial. For example, a party may file a motion for summary judgment or summary adjudication on the basis that there are no triable issues of fact and that the applicable law requires a particular result. Since pre-trial motions shape litigation to give a tactical advantage, or even victory, it is critical that your attorney is prepared to handle all stages of litigation--not just trial.
  • What is alternative dispute resolution?
    Alternative dispute resolution ("ADR") in California usually means either arbitration or mediation. These are means of resolving cases without the expense of a full trial. Courts often order the parties to attempt a resolution through ADR because trial is very expensive, both for the parties who must pay lawyers and experts, and for the taxpayer who pays the cost of operating the courtroom during a trial. Trials are also risky because the human beings who eventually decide the case can respond to evidence in unpredictable ways. Everyone benefits (in theory) from trying to resolve a problem through negotiation assisted by a neutral third-party.
  • Should I demand a jury trial?
    Whether to have a jury is ultimately a tactical decision which depends on a number of factors, including the complexity of the case. Trials before a jury, rather than just the judge, can be more difficult and time-consuming and are usually more expensive. Whether you want a jury to consider the facts in your case depends not just on the facts of your case, but the kind of case you have. We have found that it is best to have a lawyer with significant jury trial experience help make the decision whether to take the case to a jury.
  • How much does civil litigation cost?
    Costs vary greatly from case to case. With a few exceptions, attorneys usually charge an hourly rate for work. Occasionally, a civil litigator will agree to accept a percentage of any judgment they collect for you as their fee, or sometimes a blend of both hourly fees and a percentage of judgment. The total cost to the client will depend on the type of case and the complexity of your matter. An experienced attorney can give you a cost estimate after an initial consultation, but because litigation is unpredictable, total costs often exceed the initial estimate provided by your attorney.
  • Can I limit my costs in civil litigation?
    The best way to limit costs in civil litigation is to avoid it altogether. Unfortunately, this isn't always possible. An experienced litigator will help you understand how to value your case so you can decide which resources to commit to the fight. A good attorney will not only help you try to resolve your case at every stage of the proceedings to avoid the expense of trial, but knows which issues are worth fighting for and which ones are a waste of money. While a lawyer's hourly rates may vary greatly between attorneys, tactical decisions usually play a bigger role in the final bill than their hourly rate. Your lawyer's personality also plays a large role. Does the lawyer become overly emotional about your case? Does an overly-aggressive lawyer wage an expensive war over every slight whether real or imaginary? While its important to find a lawyer who cares about you and your case and will be fearless if it comes to a fight, it is just as important to find a lawyer whose fighting instincts are tempered with humility. Finding an experienced lawyer who cares about solving problems and forging long-term business relationships with clients is probably the best way to save money.
  • How long does civil litigation take?
    How long the civil litigation process depends on the kind of case, but most especially on the kind and value of the case. A small case involving thousands of dollars may take several months to resolve. A complex case with more than two parties and millions of dollars at stake may take years to resolve.
  • What is an appeal?
    Trial court is just one level in our judicial system. Appellate courts above them have the power to examine certain kinds of legal and factual issues and to reverse the lower court's decision if the facts and the law warrant a reversal. Parties considering an appeal should have the assistance of an experienced appellate lawyer to help decide whether to appeal an adverse trial court decision. An appeal is not a "do over." Appellate courts generally only consider legal issues and give great deference to the factual findings of trial judges and juries who actually viewed the evidence and heard the testimony--after all, they were in the best position to assess the credibility of a witness. Because of this deference, most appeals in the United States do not change the outcome. Because appeals can be very costly, it is crucial to have an appellate lawyer help decide whether there are adequate grounds to attack a trial court decision before you invest in an appeal.
  • I've been harmed by someone. Should I sue?
    Abraham Lincoln advised, "Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker, the lawyer has superior opportunity of being a good man. There will still be business enough." We cannot agree more. But Lincoln also said, "The man does not live who is more devoted to peace than I am, none who would do more to preserve it, but it may be necessary to put the foot down firmly." A lawsuit is not called for over every slight or trifling injury. But it is called for when the harm is great or the danger real, and the party in the wrong is either insensible of it or, worse, pretends to be innocent despite knowing the truth.