Civil Procedure Before Trial

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Civillitigation experts offer invaluable practice pointers in Civil Procedure Before Trial. This set includes step-by-step pretrial procedure guidance, beginning with client intake and continuing through commencing the action and bringing it to trial. This practice guide contains detailed coverage of jurisdiction, pleadings, motion practice, discovery, and more.

Citing the latest cases available, plus statutes and rules of court, this litigators' bible includes proven strategies, tactics, time-saving tips, and illustrations. It develops each topic and procedure so you know when, where, and how to proceed.

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Navigate the complexities of federal civil procedure as well as state procedure for the 22 states and the District of Columbia that closely follow the Federal Rules of Civil Procedure.

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A case management conference (CMC) is when both sides, the lawyers (if any), and the judge meet to talk about how to handle the case. Most civil cases have a CMC and it usually happens between 120 and 180 days from filing of the lawsuit. Some courts may not require the parties to come to court for the CMC if all sides in the case timely file the local court forms needed to schedule the trial date.

These forms include a Case Management Statement (Form CM-110). It asks about the status of the case and the time estimate for trial. Check your local rules of court to see if an appearance may be waived by filing the proper paperwork ahead of time. Always call the court a day or two ahead of a scheduled CMC to find out if the CMC is on calendar (meaning it is scheduled for hearing) or has been taken off calendar (no need to show up as the case will not be called).

If the court requires the parties or their lawyers to be present, both sides must go. If the court accepts the Case Management Statement instead of requiring an appearance in court, then when you call the court to find out if the CMC is on calendar the court can tell you it is off.

If the CMC is on calendar and the plaintiff does not go to the CMC, the court can schedule the case for a hearing for the plaintiff to explain why he or she did not go, and the court can impose a fine or sanction on the plaintiff for failing to appear. If you do not go to a scheduled hearing, you run the risk that the court will make rulings that you disagree with, that you may get ordered to pay sanctions, or after your repeated failure to appear at scheduled hearings, the court might dismiss the case.

You may have already collected a lot of this evidence, but if not, this is your opportunity to do so. For example, if you have a car accident case, you should already have pictures of the scene of the accident and of the damage to your car. If you have not done so yet, you can interview witnesses and write down their statements, and you can also take measurements of things and distances at the scene. You can also request information from the weather bureau about the weather on the day and time of the accident, and get any police reports or medical bills and proof of your expenses.

In small claims court police reports and medical bills can be introduced into evidence without having the police officer or doctor in court to authenticate the document. In a limited or unlimited civil case these out-of-court statements (called hearsay under the rules of evidence) are generally not allowed, particularly if you want to use them to prove the information that is in them. This is one of the reasons why it is difficult for non-lawyers to try a case in the superior court. The rules of evidence are complicated and can make it difficult to get evidence into the court record.

Both sides have the right to discovery, and both sides have the responsibility to provide the information that the other side requests as long as the request is legal, does not ask for privileged information, and complies with the rules for discovery.

Discovery can be very complicated and expensive, and the rules are very strict. If you do not follow the rules, you may not be able to use the evidence you gathered in court. Also, there are a lot of strategic decisions involved in discovery. Because of this, discovery is an area of your case where the advice of a lawyer can be extremely helpful.

In general, you have to finish discovery 30 days before the trial date. This includes all motions to force responses to discovery when the other side does not respond. Try to finish your discovery ahead of time. This will give everyone enough time to go over all the papers and get ready for trial.

There are other kinds of discovery, too. You can read more about discovery in the California Civil Discovery Practice (published by Continuing Education of the Bar (CEB)) and California Forms of Pleading and Practice (Discovery volume). Your local law library will have these books and others to help you understand discovery. Click here to find your local law library.

Generally, a lawsuit must be filed in the jurisdiction where the defendant resides or where the claim arose. In cases based on diversity of citizenship (when the plaintiff and defendant are residents of different states), the lawsuit may be filed in the jurisdiction where the plaintiff or the defendant resides.

Under federal rules, defendants generally have 21 days to file an answer after they are served with a complaint; the U.S. government has 60 or 90 days, depending on whether it has waived service. In other types of cases, such as those involving the Social Security Act or the Freedom of Information Act, other response deadlines apply.

Although most defenses to a complaint must be stated in the answer, a defendant can move to dismiss the complaint before filing an answer. Motions to dismiss typically make one or more of these arguments:

After the defendant has filed an answer or a motion to dismiss the complaint, the judge holds a pretrial conference, sometimes referred to as a case management conference. A schedule for discovery is generally set at this conference, and a trial date is sometimes also scheduled.

Often in civil cases, parties file motions disputing whether a party is entitled to receive certain kinds of information before trial. Parties also may file a motion for summary judgment, which asks the judge to determine some or all of the issues in the case based on the information the parties present in briefs. These motions are in the case file. When either party files a pretrial motion, the judge may choose to hold a hearing. However, if the judge believes the motion contains sufficient information to decide an issue, no hearing is held.

Discovery may include documents, physical evidence, and other information relevant to the lawsuit. Discovery also may include statements obtained in depositions, a process in which persons involved in the dispute or with expertise relevant to the case are placed under oath and asked questions by the attorneys for both sides, much as they would be if they were on the witness stand in court. This testimony sometimes may be introduced as evidence during the trial.

A final pretrial hearing is held following the completion of discovery. This conference enables the judge and parties to understand exactly what issues will be important at the trial, and to work out possible solutions to problems before the trial. The judge usually requires that the parties submit a pretrial order, in which the plaintiff and defendant provide the substantive and procedural framework for their respective cases as they expect to present them in trial.

The parties also may resolve their dispute by settlement, with or without court intervention. Parties frequently discuss settling their case during the final pretrial phase, and it is not uncommon for judges to strongly encourage them to resolve the dispute before trial. Cases can be settled during trial, including during jury deliberation.

The fact that a case was settled often is not a matter of public record. In many settlements, pieces of evidence, the terms of the settlement, and any monetary award may remain unavailable to the public. More information on this topic is available in Sealed Documents and Closed Hearings.

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