• Process of a Lawsuit
  • Civil Process
    • Civil Pretrial Process
  • Criminal Process
    • Criminal Pretrial Process
  • Trial Process
  • Small Claims Court

Our legal system is based on the adversary system. This system allows opposing parties to present their case to an impartial third party who renders a decision. The adversary process determines the facts of the case, determines the governing law, applies the law to the facts, and provides a judgment.

There are two kinds of cases: civil and criminal. Civil cases resolve private conflicts between people, businesses, and the government. Criminal cases involve the enforcement of laws by the government. Most disputes are resolved before trial. Disputes may be resolved before any legal action is filed, after legal action is filed in court, or while a trial is in process but before the judge or jury renders a decision. Most cases have to be filed within the time limits set by law. These limits are known as statutes of limitations. The time limitations vary depending on the type of legal claim filed. If a person does not file a case within the time period set by law, he or she loses the right to file the legal claim.

This chapter outlines the process of a case through the civil and criminal district court system. It also outlines the trial process. Finally, this chapter discusses the use of small claims court.

The California Court System Chapter discusses the state and federal court systems in California. Options that exist outside the courtroom can be found in the Alternative Dispute Resolution Chapter.

Civil cases make up the majority of the cases filed. Examples of civil cases include: personal injuries, contract disputes, landlord-tenant disputes, adoptions, and marriage dissolutions (divorce). In civil cases in which damage is done to a party, that party can claim money damages. However, depending on the case, a party may ask for something other than money damages. For a discussion of damages in contract disputes, see the Contract Law Chapter. A person may ask the court to issue an injunction against another party. An injunction bars a person from doing a specific act. The court may issue a restraining order restricting the defendant's actions until the case is resolved. For example, a person signs a contract to buy a house from the homeowner and the owner turns around and sells the house for a second time to another person. The first buyer may ask the court to restrain the seller from completing the sale to the second buyer until the case between the first buyer and the seller is resolved.

On rare occasions, civil cases may be filed as class actions. Class actions arise when there is a common question of law and fact for a large number of persons. There is a special process to go through to establish a class action. This certification process can be lengthy. Recent examples of class actions include breast implant cases and real estate dual agency cases. Additional information about class actions can be found in the Class Action Law Chapter.

The burden of proof in a civil case is on the party who initiates the case (the plaintiff). The plaintiff must prove his or her case by a preponderance of evidence. This means that the party in a case who presents the more convincing evidence wins the case. The plaintiff's evidence must be more convincing than the evidence presented by the opposing party (the defendant).

Civil juries consist of 12 persons or any number less than 12 that the parties agree to in open court. A civil jury is not required to reach a unanimous verdict. If three-fourths of the jurors agree on a case resolution, it may be enough for a verdict. A person is limited to bringing one legal action for damages arising from the same circumstances.

Civil Pretrial Process

As previously mentioned, a civil case is a private dispute between two or more parties. The following is an outline of the steps one may take if a civil action is filed in a California superior court.

The plaintiff has his or her attorney prepare a document called a complaint. The complaint states what the dispute is about, why the defendant is responsible, and asks the court to take a stated action, such as awarding damages. The complaint, along with a summons, is delivered to the party the action has been filed against. A summons is a written order stating that a defendant must answer the plaintiff's complaint. There are requirements for serving a summons. The party served is the defendant. The defendant has a specific period of time to respond to the complaint. This written response is an <$Ianswer>. The answer admits or denies allegations in the complaint, states any defenses to the plaintiff's complaint, and asks the court to decide in favor of the defendant. The defendant also may state claims he or she has against the plaintiff. Any claim by the defendant against the plaintiff is a <$Icross-complaint>. The plaintiff must respond to the defendant's cross-complaint. If the defendant does not respond to the complaint, the plaintiff can win the case by default. The complaint, answer, and any cross-complaints are called the pleadings. These documents are filed in superior court.

If it appears that based on all the information presented, one side clearly has the advantage, that side often will file a motion for summary judgment, which requests that the judge rule in favor of the moving party if the judge decides that there is no triable issue of fact. At this same time one party may file a motion to dismiss the case. There are a number of grounds on which a party may move to dismiss a case. For example, a party may claim the court does not have jurisdiction, or that the action was brought too late under the statute of limitations. Statutes of limitation vary in length depending on the type of case.

There are several more steps that may be taken by the parties or the court before a case goes to trial. To assist the parties in preparing their cases and learning about the other side's case, a process called discovery occurs. During discovery, each side may ask the other to answer written questions (interrogatories), provide copies of documents, or answer questions orally under oath (deposition). A deposition usually is held in an attorney's office and recorded by a stenographer. A deposition can be used to impeach a witness during the trial if testimony at trial is different from the testimony given at the deposition. Each side also may make motions to the court asking it to settle legal questions that arise.

During this pretrial process, a settlement may be arranged. Most civil cases filed in California state courts are settled without ever going to trial. Instead of facing a trial many civil litigants and their attorneys consider the possibility of settling a lawsuit through a process known as alternative dispute resolution (ADR). For more information regarding the ADR process, see the Alternative Dispute Resolution Chapter. If a settlement is not arranged during the pretrial process, the parties proceed to trial. An outline of the trial process follows the Criminal Pretrial Process section.

Unlike a civil case, which is a private dispute, criminal cases involve persons who are charged by the government with violating laws. Examples of criminal cases are assault, burglary, embezzlement, rape, and murder. Crimes in California are divided into categories ranging from the most serious crimes to less serious crimes. The most serious crimes are called felonies. Murder and arson are felonies. A person convicted of a felony may be sent to prison for a year or more and may have to pay a fine. The next level of crime is a misdemeanor. A person convicted of a misdemeanor may be sent to jail for up to a year and receive a fine. Other violations, such as parking tickets and moving violations, are called infractions. A person guilty of these offenses cannot be sent to jail but can be fined.

The burden of proving a case against a person in a criminal proceeding (the defendant) is on the party bringing the charges (the government prosecutor). A criminal defendant does not have to prove his or her innocence; the prosecutor must prove that the defendant is guilty. Decisions in a criminal proceeding are based on a different standard than civil cases. In order for a person to be found guilty of a crime, the prosecution must prove the defendant is guilty beyond a reasonable doubt.

There are 12 jurors in a criminal case, and unlike a civil proceeding, all jurors must reach a guilty or not guilty verdict. If a jury fails to reach a unanimous verdict, it is a hung jury and a mistrial is declared. If a mistrial is declared, a new trial may be held.

Criminal Pretrial Process

The following is an outline of the pretrial procedures for a felony criminal case filed in California superior court.

When a crime is committed, the police conduct an investigation. When a person has been identified as the probable perpetrator of the crime, the evidence linking that person to the crime is presented to either a prosecutor (county attorney) or in some instances, a grand jury. The prosecutor can file a complaint against the defendant or the grand jury can indict a person. Based upon the complaint or indictment, a warrant for arrest or a summons to appear in court are issued to the suspect. Once a suspect is arrested, the suspect is charged with the crime. If police wish to question the suspect, the suspect must be given a Miranda warning, which advises the suspect of the right to not answer questions and the right to an attorney.

Soon after an arrest, a defendant must be taken before a judge, where the judge informs the defendant of the charge against him or her. The judge again informs the defendant of the right to an attorney. At that time, if the defendant cannot afford an attorney, a public defender is appointed. Although defendants have the right to represent themselves in court, most prefer to be represented by attorneys. Finally, at this initial hearing, the judge determines whether the defendant should be released on bail or kept in custody.

A defendant will be released on bail only if the judge determines that the defendant does not pose a threat to any person or the community. The amount of bail set depends on many factors, including the likelihood that the defendant will return for future proceedings and the nature and circumstances of the charged offense. If a defendant fails to report for a subsequent court appearance, the defendant forfeits the amount of the bail, and also may be punished with contempt of court or with criminal sanctions.

At the next court appearance, the judge reviews the evidence against the defendant to make sure there is probable cause to believe the defendant committed the offense. The next step is the defendant's arraignment. At the arraignment, the judge reads the charges to the defendant, and the defendant must make a plea. If the defendant pleads guilty, the court will not accept the plea until the judge fully explains to the defendant the consequences of such a plea and the maximum penalty provided by law. If the defendant persists in the guilty plea after the explanation, the plea is accepted, and the next step is sentencing. If the defendant pleads not guilty, the case proceeds to trial.

At any stage in the proceeding, the defendant and prosecutor can engage in plea bargaining. During plea bargaining, a defendant may agree to plead guilty to a lesser criminal charge in exchange for dropping the more serious charge.

Before a defendant is sentenced, there is a pre-sentence investigation. This investigation examines many factors, such as the defendant's criminal history, physical and mental condition, and family situation and background. At the sentencing hearing, the court considers the pre-sentence report, any trial evidence, evidence of aggravating or mitigating circumstances, and statements of the defendant and the defendant's victim(s), if any. Depending on the crime, a sentence may consist of a fine, a term of imprisonment, probabtion, or some combination thereof.

California judges have sentencing guidelines to follow when sentencing criminals. There are some instances when a judge may stray from the guidelines, but the judge must state the reasons for not following the guidelines.

If a defendant does not plead guilty along the way and charges are not dropped by the prosecutor, the next step is a trial.

Whether a case is civil or criminal, the basic outline of a trial is similar. The decision maker in a trial can be either a judge or a jury. There are rights to a jury trial in many cases, but this right may be waived by the parties.

If a jury trial is requested, the first step is selecting a jury. A group of persons selected for jury duty is brought into the courtroom and asked questions by the judge and attorneys for both sides. The questioning is to determine whether a person can be a fair and impartial juror. A person who cannot be fair may be removed for cause. Others may be eliminated from the jury by the attorneys without reason. This is known as a peremptory challenge. Each attorney has a limited number of peremptory challenges that he or she may make. When a jury is selected, the members are sworn in.

The next step is the opening statement. The opening statement allows each side to tell the jurors about the case, what to expect, and what they intend to prove. The plaintiff in a civil case and the prosecutor in a criminal case give their opening statements first.

After the opening statements, testimony begins. The plaintiff or prosecutor, whichever the case may be, calls witnesses to the stand and begins questioning them. The questioning of a witness by the party who asked that witness to testify is called direct examination. The opposing side also has the opportunity to question the witnesses; this questioning is called cross-examination. After cross-examination, the first party may question the witness again in rebuttal.

After the plaintiff or prosecution is done presenting its case, it is the defendant's turn. This time, the defense calls and questions witnesses, and the other side cross-examines them. Attorneys for either side may make objections to questions that the opposing side asks or evidence the opposing side wants to introduce. There are rules on what information is admissible in court, and the judge follows these rules when resolving any objections.

After both sides have presented their cases, attorneys give closing arguments. In closing, each attorney summarizes the facts of the case and states why his or her side should prevail. Finally, the judge gives instructions to the jury on the law to be applied in the case. After receiving the judge's instructions, the jury retires to decide the issues in the case. As mentioned before, a unanimous decision is not required in a civil case, but is required in a criminal case. If a party believes that there was an error at trial, he or she can appeal the decision to a higher (appeals) court. However, a prosecutor cannot appeal a not guilty verdict. Discussion of courts of appeals is contained in the California Court System Chapter.

An option for consumers thinking about pursuing a civil claim is small claims court. Any person 18 years or older, company, governmental agency, or organization can be a party to an action in small claims court. Small claims court has limited jurisdiction and only hears cases in which the amount of damages claimed is $5000 or less. A person may not have an attorney assisting him or her during the hearing. The procedures have been simplified so people can represent themselves. Common issues resolved in small claims court include property damage, nonpayment of debts, and dishonored checks.

A person who wishes to file a claim in small claims court, the plaintiff, must fill out a standard small claims court form in the county where the defendant lives or where the claim arose. Upon completion of the form, he or she must swear under oath and sign it before the clerk of the small claims court. The plaintiff also must pay the filing fee. If a plaintiff wins the case, the court can ask the defendant to reimburse the plaintiff for this fee.

After the form is filled out and the fee paid, the clerk will mail notice of the hearing to the defendant. When a defendant receives a small claims notice, he or she has the option of filing a counterclaim against the plaintiff. The defendant pays a fee for any counterclaims. If the counterclaim is more than $5000, the case will be transferred to a court of competent jurisdiction. If the defendant fails to appear at the hearing, the plaintiff may win the case by default.

At the hearing, the plaintiff and defendant appear before a judge. The judge will ask the plaintiff to state his or her case, then the defendant. After the judge has heard both parties, the judge may ask the parties questions. The judge does not make a decision at the time of the hearing. When the judge makes a decision, notice of the decision is mailed to both parties. The plaintiff in a small claims action may not appeal the judgment. The defendant with respect to the plaintiff's claim, and a plaintiff with respect to a defendant's counter-claim, may appeal the judgment to superior court. At the superior court a new hearing is held. The judgment of the superior court is final.

A party who wins a small claims court case must collect the money himself or herself; the court does not collect the judgment for the prevailing party. There is a procedure to follow for collection. A small claims court judgment is valid for ten years.