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Litigation is Like Lawyer Shows on Television (NOT)


By California Trust Litigation Attorney – Ted Hankin

Over the years I have watched many attorney-themed television programs.  I understand, given the time allotted, one must take the case and try it to conclusion within the obligatory one hour format.  Unfortunately, this perception of a sprint to the finish line is not reality; litigation is more in the nature of an endurance contest in California.

Much of the time involved in a litigated case (let’s take a business case as an example) involves discussion with the attorney to insure that he/she has a complete understanding of the facts, analysis by the attorney to determine what rights have been violated by the actions of the other side, and drafting a complaint.

Once the complaint has been drafted and approved by the client, it then is filed, with an accompanying summons, with the court.  After filing, it is sent out for service on the defendant.  Once the defendant has been served, the defendant, in California, has thirty days in which to respond.  A response can be an answer (the case is then “at issue”) or a demurrer.  If a demurrer (everything in the complaint may be assumed to be true, but still doesn’t give the plaintiff a right to the relief sought), the court might set it out three or more months before scheduling a hearing (for oral argument).

Assuming the demurrer is sustained, the plaintiff is typically given three to four weeks to amend the complaint.  The amended complaint is filed and served, after which the defendant again has the option of demurring or answering.  If another demurrer, the cycle repeats.  If an answer, then the parties engage in discovery.

There are different types of discovery.  Written discovery involves propounding form interrogatories, special interrogatories, demand for production of documents and/or requests for admissions.  With each of these types of discovery, no less than thirty days is allowed for a response.

The response might contain objections or incomplete responses.  The onus is then on the propounding party to bring a motion to the court to compel responses that were avoided by the responding party.  At least six weeks (and perhaps more) will go by before that motion will be heard; even if granted, the responding party will be given time to submit the appropriate responses (typically weeks if not months).

Then there are depositions.  They too take time; notice must be given a minimum of fifteen days in advance (more, if testimony will be of an accountant, doctor, attorney or other professional who may have consulted with the other party).

While all this discovery is going on, the court will set a case management conference, at which time the court will be informed about the status of the case, time estimate for trial, and other pertinent information that will allow the court to gauge when the case will be ready for trial and when, on the court’s calendar, it can accommodate a trial of the length estimated by counsel.

This will lead to the court assigning a trial date months away from the case management conference.

Now you have a trial date; will you go to trial on that day?  Not necessarily; the courtroom may not be available because earlier trials are still being litigated… or the court may, on its own, decide that it wants the parties to participate in a settlement conference.  Or someone might get sick, or have a death in the family, in which case the trial will be continued….

You have finally done it; you are in trial.  After several weeks, the trial is over.  You then must wait for the verdict.  No predicting how long that will take.

Do you see now why television litigation compresses the actual timelines involved in real-world litigation?  You must be patient and be prepared to stay the course… because in civil litigation, there generally is no such thing as “swift” justice.

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