Civil Litigation Attorney

Civil litigation generally involves disputes between private parties in which one party is requesting some form of relief, either some form of money damages or an injunction or both. A civil case starts upon the filing of a complaint or some other petition to court requesting a judgment against the party sued, the defendant or respondent. Our law firm handles all kinds of civil litigation, from simple to complex commercial litigation, restraining orders and injunctions, business litigation, partnership disputes, breach of fiduciary duty, shareholder disputes and derivative actions and probate and estate litigation. We also handle all types of writs and appeals.

The following are some examples of questions and issues we face in addressing our client’s litigation needs:

I’ve just been served with a complaint. What do I do?

The most important thing is to make sure you don’t fail to respond. If you were properly served and the court has proper jurisdiction over you, and you fail to respond within the applicable deadline, the plaintiff can request the court clerk to enter a default judgment against you. Once issued, that means that all of the pleadings in the initial complaint are treated as true and the only matter left is for the court to determine damages. Although a court has the power to set aside a default upon specific grounds, this relief is usually discretionary with the Court so it’s best not to be put into a default situation.

I have claims for damages against the Plaintiff. Can I file my own counter-suit?

If you meet certain requirements, you don’t have to file a separate lawsuit, but can file what’s called a cross-complaint and serve that on the Plaintiff.

I think the claims against me are without merit and want to have them dismissed. How can I do that?

If the plaintiff’s complaint fails to allege sufficient facts to state a cause of action, a defendant can file a demurrer to challenge the complaint. Usually, the court will grant the plaintiff leave to amend the complaint to cure any defects brought up on a demurrer. However, if the defects are not curable, i.e., the facts in the complaint actually set the complaint up for a statute of limitations defense, the court may grant the demurrer with prejudice and not permit the Plaintiff to amend his/her claims.

Keep in mind that when reviewing a demurrer, the Court may not look beyond the pleadings (or those matters which are the subject of proper judicial notice) and consider other evidence. If you want the court to consider evidence outside of the pleadings, you will have to choose a different form of motion, usually a summary judgment, to test the merits of the Plaintiff’s claims.

I am considering filing a lawsuit. What do I need to consider?

Besides whether or not your claim has merit, you must always determine if you can still bring your claim of if it is barred by the appropriate statute of limitations. You must also determine if this matter could be brought in the state courts only or if a federal court would have jurisdiction to hear the case and, if so, which would be the most favorable forum. You need to also determine the appropriate location or venue in which to sue the defendant. As a plaintiff, you should also investigate whether there is a statutory or contractual basis for recovering your attorney’s fees and costs in the event you prevail.

How do I gather the evidence from the other side that I need to prove my case/defend my case?

The process of obtaining evidence from the other party during litigation is called the discovery process. The rules of civil procedure set forth a variety of means to obtain evidence from the other party or from non-parties, including written interrogatories (questions to be answered under oath), requests for admissions, requests for production of documents and things, and depositions.

I lost at my hearing/trial. What recourse do I have?

You may have grounds to file an appeal or a writ and have the appellate court review the lower court’s decision. Keep in mind, however, that generally an appellate court’s review is limited to the record as it was presented to the lower court; the appellate court cannot accept new evidence. The appellate court will also defer to the lower court’s weighing of the evidence and its ability to assess the credibility of the witnesses. The appellate court’s ability to reverse a lower court’s is usually limited to instances of clear legal error committed by the lower court or if the lower court’s or jury’s decision is not supported by legally sufficient evidence.

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