The lawsuit itself is officially started by filing a “complaint” that’s prepared by the plaintiff’s attorney after investigating the facts and researching the law that applies to the case. The complaint will set out the legal grounds for the lawsuit against the defendant and make a request, such as for monetary compensation.  This document, together with a “summons” that orders the defendant to respond to the claim, will be delivered (“served”) to the person being sued. After being served, the defendant’s lawyer must act quickly and within the deadline to respond to the lawsuit and can take different actions depending on the situation.  For example, the defendant can file an answer to the complaint, object to the complaint because it doesn’t state a legal claim, raise defenses, and may even have his or her own claim against the plaintiff.  If so, the defendant’s attorney will file a counter-claim, called a “cross-complaint” in California state courts, to which the plaintiff will have to respond.  If there’s a legal basis for it, one party can also try to get a judgment on the case (or part of it) without a trial, or get the case dismissed. 

The attorneys will also begin “discovery,” which allows more investigation tools to be used so the parties can prepare or defend against the lawsuit.  A few of the most important ways to gather evidence during discovery include interrogatories (written questions prepared by the lawyer that have to be answered under oath), depositions (questions that will be answered orally under oath), and orders for the other party or subpoenaed third parties to produce documents and photos.  Throughout the process, lawyers will meet with the judge for conferences on the status of the lawsuit.  Before the trial is set, the question will come up on whether there will be a jury trial or a bench trial (where a judge will decide your case).  Depending on the lawsuit, you may have a right to a jury as long as a request for a jury is made within the time required, but sometimes the parties may want to waive this right and have the case tried by a judge.  If not, then a jury will be selected.  Then, attorneys for both parties will go through all the typical steps in a trial, i.e. opening statements, examining and cross-examining witnesses and experts, and presenting closing arguments.  During the trial, either side may continue to try to cut the trial short and get a judgment in its favor.  If the trial continues, lawyers will prepare jury instructions for the court’s approval.  Jury instructions explain the laws that jury members must apply to the case (in other words, the specific things that must have been proven), and the judge will read approved instructions to the jury.  After jury deliberations, or after the judge has reached a decision in a bench trial, the verdict will be read.  A party might decide to challenge the judgment with a post trial motion, or by filing an appeal. 

While it’s easy to focus on what lawyers do during a lawsuit, we’ll also advise you on what you can do from the start to help improve your chances of winning.  For instance, it’s key that you tell us not only everything that can help your case, but also anything that has the potential to hurt it.  Also, be careful to provide complete and accurate answers to interrogatories and during depositions, because dishonest answers are usually caught later and can significantly damage your case.  Your credibility and truthfulness will influence the judge or jury’s decision as they weigh the evidence in your case.  In doing our part to maximize the likelihood of success, we’ll identify your goals with you, thoroughly investigate your case, and persuasively negotiate with the other side.  Although we’ll strive for settlement from the outset, we’re fully prepared to litigate your case in court.  If you’re faced with a legal dispute, act quickly so that you don’t lose your right to sue or defend a case because you’ve waited too long.  Reach San Diego Law Firm’s experienced trial lawyers at (619) 794-0243.

- A breach of contract lawsuit must be brought within 4 years from the date of breach if the agreement is in writing, or within 2 years if you had an oral agreement, but it may be possible to shorten the period by contract

- A claim for fraud must be filed within 3 years from the date the fraud was actually discovered

- A defamation case (libel or slander) must be filed within 1 year

For the most part, these are strict time limits, so if a case is filed with the court after time has run out (even by just one day), then the defendant can assert that the claim is barred, leaving the plaintiff out of luck.   Even so, sometimes it’s possible to “toll” the statute of limitations period.  If tolled, time is essentially paused.  There are several different situations when time can be tolled, and one common example involves minors.  For instance, if the would-be plaintiff is still a child when the claim arises, then this is considered a legal disability and the limitations period will be tolled until the minor turns 18 (in most cases), although a parent may prefer to file on behalf of the child instead of waiting.  In addition to tolling, an exception to the statute might apply in your situation.  Also keep in mind that the limitations period is often much shorter when suing the City of San Diego and other government agencies.

What’s more, depending on the circumstances, there isn’t always a black and white answer as to when the clock should start ticking.  In a personal injury case, it may be obvious when the date of the injury occurred.  Then again, what if it’s the type of injury that isn’t immediately apparent?  Here, the limitations period starts when the injury was (or should have been) discovered, which may be arguable under the facts, but this “discovery rule” doesn’t apply to all types of claims.  While all these time limits may seem arbitrary, there are practical and policy reasons behind these deadlines.  The sooner a lawsuit is filed, the better the chances of gathering important evidence, not to mention that your memory and that of any witnesses will be fresher and probably more reliable than if you wait seven years to start your case.  From a public interest standpoint, it’s unfair to allow the threat of potential liability to hang over someone’s head for the rest of his or her life; meanwhile a plaintiff shouldn’t be allowed to sit on his or her rights for years on end after suffering an alleged injury or harm. 

As you’ve probably guessed by now, there are times when the seemingly simple task of applying the statute of limitations to your case can turn into a complex legal analysis, but we’ll carefully research these issues when bringing or defending your case.  If you’re a potential plaintiff, then it’s crucial that you do your part to get your case started well before your claim expires to protect your rights.  We’ll advise you early on and help you avoid potentially costly missteps that can happen when communicating with insurance companies or others whose interests conflict with yours, even when they seemed to be on your side.  To reach San Diego Law Firm’s experienced attorneys for help with your litigation, business dispute, or personal injury matters, call us at (619) 794-0243.