Some cases are too big for small claims court and too small to interest a lawyer. But Win Your Lawsuit takes you step by step through the entire process of a limited jurisdiction case in California Superior Court.
Take on common types of civil court cases worth up to $25,000, including:
• contract disputes
• personal injuries
• property damage cases
• business disputes
Whether you're bringing the suit or defending against one, this plain-English legal guide shows you how to prepare a complaint, file and serve papers, participate in settlement negotiations, present a case and much more. The 3rd edition is completely updated and provides all the forms you need.
Written by Roderic Duncan, a retired California Superior Court judge, this book includes the legal insight and practical tips that only a judge with over 25 years of experience can provide.
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About the Author
Read an Excerpt
If you are a defendant, some of this chapter isn't directly relevant. However, it's still a good idea to read the whole chapter carefully. It will help you evaluate the strength of the plaintiff's case as well as the strength of your own defense. It will also give you an idea of some arguments the plaintiff might make and the amounts the plaintiff might try to collect.
Before you file a lawsuit, ask yourself two questions: How good are my chances of winning? If I win, will I be able to collect? If your answers lead you to conclude your chances are good, then you need to ask a third question: How much should I sue for?
This chapter guides you through these questions. Specifically, it shows you how to:
- determine whether the deadline for filing your kind of lawsuit has passed
- evaluate the strength of your evidence
- preserve your evidence
- figure out whether you can collect if you win, and
- decide how much to sue for.
Never sue just to "get even." If you don't care about recovering money and only have a burning desire to get even with someone, I'd advise you not to file a civil lawsuit. Judges figure out your motives and treat these cases harshly, and everyone loses -- the plaintiff and the defendant. But if court is the only place you can go to right a wrong, then file. Remember, however, the ancient Gypsy curse "May you be involved in a lawsuit in which you know you are right."Is Your Case Fresh Enough?
For all sorts of reasons, lawmakers have decided that courts should decide recent cases, not old ones. The main reason isthat evidence (especially people's memories) is more accessible and trustworthy when it's fresh. There's a practical side to things, too -- many courts are very busy and would be overwhelmed if they entertained old cases. There's also an element of fairness involved -- would-be defendants shouldn't have to spend years wondering whether a lawsuit is about to fall on them.
Laws called "statutes of limitations" govern the time period within which you're permitted to sue after the incident that led to the lawsuit occurred. If the statute of limitations period has passed, in most cases it's useless to sue. (But see "Don't Automatically Give Up on Old Claims," below.) The statute of limitations period differs
according to the type of case, as explained in "Statutes of Limitation," below.
For claims against the federal government, the time limits are different than for claims against state or local government. If your claim is against a federal government agency, it's best to consult a lawyer.
In some situations, more than one statute of limitations may apply. For example, suppose
you've been hurt in a car accident. You'd have two years from the date of the accident to sue
for the injuries to your body, and three years to sue for the damage to your car. However,
you should handle it all in one suit within two years.
The statute of limitations is shorter for an oral contract than for a written one. Most of your contracts, though, are probably at least partially written. The work order you sign at a garage, your cousin's IOU for a loan, a credit account with a department store, and many other
transactions do not require signing a document labeled "Contract," but they all involve written agreements.
It's important to understand that the statute of limitations for a breach of contract starts to run on the day the contract was broken, not the day it was written. If the contract called for installment payments, the statute runs separately for each installment as it becomes due. For example, suppose your written contract with a customer calls for one payment
on March 15, 2007, and a second payment on September 15, 2007. If the customer failed to pay on March 15, 2007, you can sue to collect on that payment until March 15, 2011. If the customer doesn't make the September 15, 2007, payment either, you can sue to collect on that payment until September 15, 2011. Of course, if you wait that long to sue, you won't be able to recover the payment that was due March 15, 2007, because more than four years will have passed.
Don't automatically give up on old claims. Determining if the statute of limitations has expired can get complicated. If you think that your claim may be too old, but you aren't sure, consult a lawyer. On rare occasions, a lawyer may be able to figure out a way around a statute of limitations time limit.
[Statutes of Limitations Table] omitted for online sample chapter.Evaluating the Evidence
Before deciding to file a lawsuit, you should realistically examine your chance of winning.
The same is true if you've been sued and must decide whether to defend or settle out of court.
Lawsuits are won by people who have the facts and the law on their side, not by those who
have the saddest stories. Sometimes nice people are surprised when they lose a case because they had assumed that courts always arrive at results that are just. Unfortunately, it isn't that simple.
If you are a potential plaintiff, to analyze your chances of winning you'll need to assess:
- whether your evidence will convince the court to award you damages
- whether your evidence is admissible in court, so that it can be considered by the
judge or jury, and
- whether you can prove each fact required under the law for your type of suit.
If you are a defendant, you'll need to look at:
- whether the plaintiff's theory about what he or she needs to prove to win is correct
- whether your evidence is admissible in court so that it can be considered by the judge or
- whether your evidence is strong enough to convince the court that the facts are not as the
Is the Evidence Convincing?
Let's look at each of these important issues in more detail, first from the plaintiff's perspective. A plaintiff's first step should be to consult his or her adviser -- the Sounding Board or legal coach, discussed in Chapter 1. Carefully explain the facts of your case and the evidence you plan to use. Ask for an honest assessment. Then urge your Sounding Board or legal coach to play devil's advocate -- that is, to challenge your conclusions and evidence and to state the other side's case as strongly as possible. Ask how your helper would decide the case if he or she were the judge. If your case doesn't look so hot to your wise adviser, it probably won't look any better in court.
Such a review would have been helpful to a couple that once appeared in my courtroom. They described how their Volkswagen engine had burst into flames while they were driving down the freeway with their young child in the back seat. They pulled over quickly and got out safely, but their car was a total loss. They sued the local Volkswagen dealer who had done repairs on the gas lines about two weeks earlier.
After hearing their testimony, I asked if they'd had a mechanic examine their ruined car to
try to determine the cause of the fire. They hadn't thought it necessary, assuming anyone would conclude that the dealer had done the gas line repair incorrectly. I was sympathetic
and even understood how they had come to that conclusion. Unfortunately, I also knew that they'd flubbed their task of proving to me that the fire had been caused by the dealer's negligence. Unproven probabilities or suppositions weren't enough for me to rule in their favor -- they needed some hard evidence that the fire really was the dealer's fault. Or to put it another way, I could declare them the winner only if their evidence led to the conclusion that their theory was more likely to be correct than any other explanation. Because they lacked that sort of evidence, judgment was for the defendant.
I think a good advisor could have helped this couple see that in their outrage about the fire, they had jumped to an unproven conclusion that couldn't stand on its own in the harsh
light of the courtroom. A good advisor would have asked: "Why is it more likely that the fire resulted from the repair than from one of a hundred other causes?" And once this question was asked, I think it would have been obvious to the couple that they'd need to ask a mechanic to do a detailed examination of the burned car.
Is the Evidence Admissible?
Okay, you believe your evidence is convincing -- that a court would be convinced that the
defendant's actions led directly to the harm you suffered. Now you must figure out if it is admissible. That means that it is the type of evidence the court is legally authorized to hear and consider. Evidence includes any witnesses who can support your case, as well as photographs, documents, and the like.
The study of evidence is a yearlong course at most law schools and, as you will readily
understand, I cannot cover it in depth here. But I can summarize the most important principles. This material is discussed in more detail in Chapter 13.
In assessing your evidence, follow these general rules:
Most witnesses must have personal knowledge. Unless a witness qualifies as an expert (see next paragraph), a witness must have been present at some significant event and have personal knowledge of what happened in the story of your case to be able to testify in court about those facts. Possible witnesses include you, your friends and your relatives, as well as complete strangers, as long as they have firsthand knowledge. For the most part, people who
merely heard about the events from someone else can't testify.
Opinion evidence is allowed infrequently. Generally, only a person with specialized training in a scientific or technical field (called an "expert witness") can give an opinion in court. In fact, all sorts of experts give opinions in court, often in exchange for a fee. For example, an experienced mechanic would normally be considered as an expert witness
who could give an opinion about whether a car repair was done properly. Similarly, an electrician could testify about a wiring installation. In some fields, college professors can give helpful testimony or know of other experts who may be able to help you.
For a more thorough review of evidence
rules, see Represent Yourself in Court, by Paul Bergman and Sara J. Berman-Barrett (Nolo). Also, if you need the help of an expert witness, see California Expert Witness Guide, published by the California Continuing Education of the Bar (CEB) and available at most law libraries. Chapter 13 has some excellent tips on locating a good expert.
Table of ContentsYour Courtroom Companion
1. Is This Book for You?
Who Can Use This Book
Lawsuits Covered in This Book
Lawsuits This Book Does Not Cover
When You Have a Choice: Small Claims Court
The Pros and Cons of Representing Yourself
The Course of a Typical Limited Jurisdiction Case
Finding the Law, On Paper and Online
General Instructions for Filling Out Your Forms
2. Do You Have a Good Case?
Is Your Case Fresh Enough?
Evaluating the Evidence
Preserve Your Evidence Now
Can You Collect the Judgment If You Win?
How Much Should You Sue For?
3. Can't We Settle This Somehow?
Why Would You Want to Settle Out of Court?
How Much Are You Willing to Settle For?
Should You Use a Third Person to Help You Settle?
Making a Settlement Offer
Taking Care of the Details
Should a Lawyer Review the Settlement Agreement?
If You're Worried About Getting Paid
4. Deciding Where and Whom to Sue
Selecting the Plaintiff(s)
Selecting the Defendant(s)
Making Sure You Can Sue in California
Selecting the Right Court
5. Preparing the Complaint
Beginning Your Tort or Contract Complaint
Tort Complaints: Personal Injury, Property Damage, and Wrongful Death
Complaints for Other Types of Lawsuits
Preparing the Summons and Cover Sheet
Preparing a Case Questionnaire
Requesting a Waiver of the Filing Fee
Preparing an Attachment
6. Filing the Papers
Call the Clerk's Office
Photocopy Your Documents
Filing the Papers
7. Serving the Papers on the Defendants
Completing the Summons
Serve Your Papers by Mail
Selecting a Process Server
Serving the Summons and Complaint
Completing the Proof of Service
Serving Other Papers as the Case Proceeds
8. Lawsuits From the Defendant's Point of View
Decide Whether to Represent Yourself
Ask for More Time
Prepare an Answer
Prepare a Cross-Complaint
File and Serve the Answer and Cross-Complaint
What Happens Next?
9. If the Defendant Doesn't Respond
Taking the Defendant's Default
Applying for a Judgment
Court Hearings on Your Default
Setting Aside a Default Judgment
Types of Discovery
Discovery Rules and Limits
Doing Your Own Discovery
Responding to Discovery
Less-Used Methods of Discovery
Failing to Respond to a Discovery or Case Questionnaire Request
Discovering Doe Defendants
11. The Opposition Gets Nasty: Summary Judgment and Other Motions
Motion for Summary Judgment
Motion for Summary Adjudication of Issues
Motion for Judgment on the Pleadings
Other Motions: Demurrers, Motions to Quash, and Motions to Strike
Demand for Bill of Particulars
12. Moving Your Case to Arbitration and Trial
Meeting With Your Opponent
Completing the Case Management Statement
Requesting Judicial Arbitration
Preparing for the Arbitration Hearing
Attending the Arbitration Hearing
The Arbitration Decision
13. Preparing for a Trial or Arbitration
A Short Course in the Rules of Evidence
Request for Statement of Witnesses and Evidence
Live Witnesses or Written Declarations
Using Written Declarations
Having Witnesses Attend a Trial or Arbitration Hearing
Making a Chart of Your Evidence
Making a Trial Binder
Drafting Questions to Ask Your Witnesses
Attending a Settlement Conference
14. Trial Before a Judge
Sizing Up the Judge
Rules of Courtroom Etiquette
The Trial Begins
15. Trial Before a Jury
If Your Opponent Requests a Jury Trial
Preparing Jury Instructions
16. After the Trial
Requesting a New Trial
Appealing the Judgment
17. Finding a Good Lawyer
Checking Out the Lawyer
A. Appendix: Tear-Out Forms
Forms for Filing a Lawsuit
Complaint -- Personal Injury, Property Damage, Wrongful Death
Cause of Action -- Motor Vehicle
Cause of Action -- Premises Liability
Cause of Action -- General Negligence
Cause of Action -- Intentional Tort
Exemplary Damages Attachment
Complaint -- Contract
Cause of Action -- Breach of Contract
Cause of Action -- Breach of Warranty (Merchantability)
Cause of Action -- Breach of Warranty (Fitness)
Civil Case Cover Sheet
Civil Case Cover Sheet Addendum and Statement of Location
Case Questionnaire -- For Limited Civil Cases
Application for Waiver of Court Fees and Costs
Notice and Acknowledgement of Receipt -- Civil
Proof of Service by First-Class Mail -- Civil
Proof of Service of Summons
Forms for Responding to a Lawsuit
Answer -- Personal Injury, Property Damage, Wrongful Death
Answer -- Contract
Cross-Complaint -- Personal Injury, Property Damage, Wrongful Death
Forms to End Your Lawsuit
Request for Dismissal
Request for Entry of Default
Forms for Discovery/Evidence
Form Interrogatories -- Limited Civil Cases (Economic Litigation)
Request for Admissions
Request for Statement of Witnesses and Evidence
Civil Subpoena for Personal Appearance at Trial or Hearing
Civil Subpoena (Duces Tecum)
Blank Pleading Paper
Attachment to Judicial Council Form
Application and Order for Appointment of Guardian Ad Litem -- Civil
Amendment to Complaint (Fictitious/Incorrect Name)
Case Management Statement