Now that you understand the cast and the roles that they play, you need to understand the structure of the theatrical production.
Your lawsuit officially begins when your legal team files the Complaint. The Complaint tells your story. It matches your facts with the legal claims your lawyers believe are supported by those facts. Each claim is sometimes referred to as a “cause of action”. As we will discuss in the next chapter called, The Script, the Complaint is one of the most important documents that will be filed in your lawsuit.
Once the Complaint is filed, the Defendant gets a turn.
After you file the Complaint, the Defendant gets an opportunity to respond. That response is called the Answer. Don’t expect the Answer to say "We've reviewed the Complaint and the Plaintiff makes some excellent points. We give up." Instead, the Defendant will generally deny most, if not all, of the allegations made in the Complaint. From your perspective, the Answer is probably the least important filing in your lawsuit.
Early on in the lawsuit, the Defendant may try to eliminate some or all of the causes of action outlined in your Complaint. In Federal Court, that may happen through something called a Motion to Dismiss. California State Court has a similar procedure called a Demurrer. In either type of action, the Defendant is basically saying that even if true, the facts alleged in the Complaint are not sufficient to support the claims (causes of action) being asserted.
Your lawyers will fight back and the Motion to Dismiss (or Demurrer), will ultimately be decided by the Judge. Some claims may survive. Others may not. The good news is that for claims that do not survive, the Judge may give you the opportunity for a re-write. The re-write is called an amended Complaint, and if the original filed Complaint contained insufficient facts to support the claims being asserted, additional facts can be added to the amended Complaint to fill in the deficiencies. Once the amended Complaint if filed, the Defendant again has the option to file a Motion to Dismiss (or Demurrer) and if they do, the process starts again.
A lawsuit is not a sprint. It is a marathon. There will be good days and bad days and wins and losses. The key is to not get too low or too high, and to remain focused and committed to the cause. We will talk about some of those highs and lows later in this Series in our chapter entitled “Riding the Emotional Rollercoaster”.
The Motion to Dismiss (or Demurer) will likely be the first contested action in your lawsuit. If there is oral argument, it may also be the first opportunity for the Judge to get a look at your case, and to see your legal team in action. First impressions are always important.
Although a poorly written Complaint usually gets at least one do-over, and is generally not lethal to your lawsuit, you can use the outcome as an early litmus test to determine how your legal team is performing. For causes or action that are typically asserted in homeowners insurance lawsuits (e.g. breach of contract, insurance bad faith, emotional distress), there is no excuse for your law firm to have prepared an initial Complaint that did not contain sufficient facts to support those basic claims. And if the original Complaint also contained some creative, “out of the box” causes of action, insufficient facts to support those claims can be a warning sign that your legal team lacks experience in those areas of the law.
As a general rule, the more “out of the box the allegation is, the higher the likelihood of that claim being dismissed. However, while not necessarily grounds to fire your legal team, if more than a handful of claims are lost after an initial Motion to Dismiss is granted by the Judge, it is time to have a conversation with the lead lawyer on your lawsuit. In that meeting, you are looking for assurances that sufficient facts will be added to the amended Complaint, for the dismissed claims to be allowed back into the lawsuit, and that these types of mistakes which usually indicate sloppy legal work, will not happen again.
Once the Complaint and Answer are filed, the parties begin gathering evidence from one another through a process called Discovery.
Discovery is where your lawyers begin trying to learn what actually happened inside the insurance company. They may request documents, ask written questions, subpoena information from third parties, and question witnesses under oath. Who made the decisions about your claim? Why were those decisions made? Were they one-off decisions or part of a corporate strategy?
This is your opportunity to peek behind the insurance company's curtain.
But discovery works both ways. While you are peeking behind the Defendant's curtain, the Defendant can peek behind yours. Its lawyers will investigate you, your claims, your alleged damages, and potentially parts of your personal, professional, and financial history.
There will probably also be disagreements about what information each side is entitled to receive. Some of those discovery battles you will win. Others you will lose. And some won’t be worth spending the time or money to fight about. Although your inclination will be to try to win every battel, part of being a good client is knowing when to fight, and when it’s ok to concede.
Discovery also includes depositions. A deposition is sworn testimony taken before the trial. Opposing lawyers ask questions. Witnesses are required to answer those questions. And a court reporter creates a transcript.
Your deposition is one of the most important events of the lawsuit. For the first time, you will take center stage. The Defendant's lawyers aren't merely interested in what you know. They are evaluating you as a potential trial witness. Are you credible? Are you likeable? Can you be rattled? Will a jury relate to you? Your lawyers are watching too.
We devote an entire chapter to your deposition called: Taking Center Stage.
Some parts of your case may require knowledge that an ordinary witness may not have. That's where expert witnesses come in. Depending upon the issues in your lawsuit, experts may be needed to testify about specialized areas such as customary insurance practices, costs of rebuilding or repairing your home, emotional distress, or other specialized subjects that are relevant to your lawsuit.
Experts review evidence. They may prepare opinions and reports. They may be deposed. And if the case reaches trial, they may testify before the jury.
Both legal teams get the opportunity to review reports and work product and to take depositions of the other side’s experts. That stage of Discovery is aptly named “Expert Discovery”. Expert Discovery usually begins after regular Discovery is completed, but there can be overlap, depending on the lawsuit.
Even after you have survived the early attacks on your Complaint (Motions to Dismiss, Demurrers) and have gone through substantial Discovery, the Defendant gets yet another opportunity to try to remove some or all of your claims prior to the trial. The principal way of doing that is via a Motion for Summary Judgment. That stage can be one of the most nerve racking, and is determined by the Judge, prior to the Trial.
Think about Motions to Dismiss and Motions for Summary Judgment this way:
You start the lawsuit with a big block of ice. That block contains the claims (cause of actions) that you are asserting against the Defendant (homeowners insurance company).
Part of the Defendant's strategy prior to the Trial is to chip away at your big block of ice. Their goal is to remove as many chunks of ice along the way as possible until there is literally nothing left by the time Trial was supposed to occur. If they succeed, there is no Trial.
As the Plaintiff, you want to have at least one cube of ice left prior to Trial, so that the Trial can proceeds and you can get your case in front of a Jury. The larger the block of ice that you have left going into Trial, the higher the chance of
you prevailing in your lawsuit.
Through much of the pre-trial process, you are on the defensive trying to protect your big block of ice. While it is ok to loose chips from time to time, you are trying to prevent loosing large chunks of ice along the way. The insurance company needs to believe that the show will go on and the Trial will occur. Jury Trials can be very unpredictable for insurance companies and insurance companies don’t like unpredictable risk.
Don't be surprised if you lose some chunks of ice along the way. Your legal team may even have started with a larger block of ice, knowing that the insurance company would try to chip away at it. And in some instances, such as after a negative Motion to Dismiss ruling, the Judge may give you the opportunity to add back what he or she has taken away.
If the case doesn't settle and survives the attempts to end it before the Trial begins, eventually the curtain goes up. Opening Night.
As the lead actor in the show, it is your moment to shine. While very few lawsuits make it all the way to Trial, the possibility of a Ttrial influences almost everything that happens before it. The Defendant is continually asking what might happen if a Jury hears your case. Your lawyers should be asking the same question. The closer you get to trial, the less hypothetical that risk becomes.
A Trial doesn't necessarily end the lawsuit. After judgment, there is usually the possibility of an appeal. During an appeal, a panel of judges reviews certain legal decisions made in the proceedings below. Will the chances of your lawsuit making it to appeal are very low, you should at least know about the possibility of an anchor performance.
Looking at the entire program can make a lawsuit seem overwhelming
Complaint. Answer. Motions to Dismiss. Discovery. Depositions. Expert Discovery. Summary Judgment. Trial. Appeal.
There is a lot to know and learn. But these stages do not happen overnight. If you have the desire, there is plenty of time for you to learn along the way. And part of being a good client is having the desire to learn and the willingness to use what you learn to be your own best advocate.
Very few lawsuits make it all the way to Trial and one of the main reasons for that are settlements. Although settlements can happen at any time, they usually don’t happen by accident. Part of your litigation and discovery strategy should be directed at creating settlement opportunities over the course of your lawsuit. While your lead attorney may be a warrior and great trial lawyer, they may lack the diplomacy skills necessary to drive a Settlement strategy is as important, and sometimes more important, than trial strategy..
And as the client that has become emotionally invested in your lawsuit, , you may lose the necessary objectivity and perspective to recognize a good settlement offer. Settlements are an extremely important part of any lawsuit and we will explore in a later Chapter of this Series.
