The Oxford English Dictionary (OED) defines “litigate” (from 17th Century Latin litigat, meaning “disputed in a lawsuit,” as “verb… take (a claim or a dispute) to a court of law.” Interestingly, the OED’s compilers chose this sentence as an example of proper usage of the word “Litigate”:
“even a claim which is litigated and defended successfully involves high legal costs.”
The cost of litigation is so high that it has become the first thing that comes to mind when most people think of the word.
There are well-known disadvantages of litigation: high cost, long delay, lack of control over the outcome, public disclosure of private facts, stress, injured reputations, and impairment of important relationships. But the drawbacks are not so much part of the definition of litigation as common flaws. Litigation can be a quick, cheap, low-stress experience that is not necessarily damaging to our relationships or our reputations. It just usually isn’t.
This seems counterintuitive, but remember, a small claims action fits the definition of “litigate” just as well as a nationwide class action lawsuit. There are no lawyers, subpoenas, and discovery, but it is still the resolution of a conflict in court.
What is it like to litigate?
It’s one thing to know the definition of the word “litigate”. It’s quite another to understand what it means in practice. Suppose you are a defendant in a case involving an insured loss or an insured plaintiff who suffers only property damage. In that case, the insurance companies will handle almost everything. You may have to negotiate with your carrier about the value of the lost property. Otherwise, litigating will look like this:
- You are involved in an event that causes a legally compensable injury. If you are insured, you immediately report it to your carrier.
- You immediately take notes of what happened, take photographs, and gather documents.
- If you may have suffered a physical injury, delay the previous step and immediately seek medical attention. Delay may hurt you and weaken your claim or cross-claim.
- As soon as possible, gather all your notes and evidence and see a lawyer to discuss your claims and defenses. Do this even if you plan to represent yourself. It will give you insight into possible pitfalls and the next steps.
- Decide whether to repay the lawyer and discuss costs, fees, strategy, and potential clients. Be sure to ask about the downsides of your choices.
- The next step is probably a demand letter describing the events, detailing your current evidence and claims, and demanding money and/or other remedies. This begins the negotiation process. Depending on the strength of the case for liability, the case could settle after the exchange of multiple demands and offers as the parties haggle over damages. If the parties get stuck on damages only, it is a good idea to go to mediation. Sometimes, this stage has to wait until treatment for injuries is finished.
- At other times, the wait is because the information is in the hands of another party or third person. If so, it will be necessary to file a complaint or cross-complaint.
- If you represent yourself, use form complaints, which guide you through the requirements. If the pleadings are attacked, seek advice from a lawyer.
- The discovery process is full of particular requirements about what can be asked and how. But the correct answers are needed to win your case. Settlements are often reached before expensive discoveries like depositions.
- Dispositive motions, like summary judgment, are expensive and risky. Parties often settle either before the opposition is due or before the hearing.
- Close to trial, the court will require mediation and a Mandatory Settlement Conference to settle a case without a trial.
- A trial is complex and risky, and those without experienced trial lawyers will be at a distinct disadvantage. Only 2% of cases make it to trial.
Limited Civil Cases
Limited civil cases are defined by California Code of Civil Procedure section 86 and 86.1 as a specific set of claims or disputes concerning less than $25,000:
(1) Cases at law in which the demand, exclusive of interest, or the value of the property in controversy amounts to twenty-five thousand dollars or less. This paragraph does not apply to cases that involve the legality of any tax, impost, assessment, toll, or municipal fine, except actions to enforce payment of delinquent unsecured personal property taxes if the legality of the tax is not contested by the defendant.
(2) Actions for dissolution of partnership where the total assets of the partnership do not exceed twenty-five thousand dollars. Actions of interpleader where the amount of money or the value of the property involved does not exceed twenty-five thousand dollars.
(3) Actions to cancel or rescind a contract when the relief is sought in connection with an action to recover money not exceeding twenty-five thousand dollars or property of a value not exceeding twenty-five thousand dollars paid or delivered under or in consideration of the contract; actions to revise a contract where the relief is sought in action upon the contract if the action otherwise is a limited civil case.
(4) Proceedings in a forcible entry or forcible or unlawful detainer where the whole amount of damages claimed is twenty-five thousand dollars or less.
(5) Actions to enforce and foreclose liens on personal property where the amount of the liens is twenty-five thousand dollars or less.
(6) Actions to enforce and foreclose, or petitions to release, liens of mechanics, materialmen, artisans, laborers, and of all other persons to whom [such] liens are given or to enforce and foreclose an assessment lien on a common interest development… where the amount of the liens is twenty-five thousand dollars or less. However, where an action to enforce the lien affects property that is also affected by a similar pending action that is not a limited civil case, or where the total amount of the liens sought to be foreclosed against the same property aggregate an amount in excess of twenty-five thousand dollars, the action is not a limited civil case.
(7) Actions for declaratory relief when brought according to either of the following:
(A) By way of cross-complaint as to a right of indemnity with respect to the relief demanded in the complaint or a cross-complaint in an action or proceeding that is otherwise a limited civil case.
(B) To conduct a trial after a nonbinding fee arbitration between an attorney and client, …where the amount in controversy is twenty-five thousand dollars or less.
(8) Actions to issue temporary restraining orders and preliminary injunctions, and to take accounts, where necessary, to preserve the property or rights of any party to a limited civil case; to make any order or perform any act [concerning] enforcement of judgments in a limited civil case; to appoint a receiver …in a limited civil case; to determine title to personal property seized in a limited civil case.
(9) Actions … for the recovery of an interest in personal property or to enforce the liability of the debtor of a judgment debtor where the interest claimed adversely is of a value not exceeding twenty-five thousand dollars or the debt denied does not exceed twenty-five thousand dollars.
(10) Arbitration-related petitions filed under either of the following:
(A) except for uninsured motorist arbitration proceedings, …if the petition is filed before the arbitration award becomes final and the matter to be resolved by arbitration is a limited civil case under paragraphs (1) to (9), inclusive of subdivision (a) or if the petition is filed after the arbitration award becomes final and the amount of the award and all other rulings… made in the award are within paragraphs (1) to (9), inclusive, of subdivision (a).’
(B) To confirm, correct, or vacate a fee arbitration award between an attorney and client that is binding or has become binding, according to… the Business and Professions Code… where the arbitration award is twenty-five thousand dollars or less.
(b) The following cases in equity are limited civil cases:
(1) Cases to try title to personal property when the amount involved is not more than twenty-five thousand dollars
(2) Cases when equity is pleaded as a defensive matter in any case that is otherwise a limited civil case.
(3) Cases to vacate a judgment or order of the court obtained in a limited civil case through extrinsic fraud, mistake, inadvertence,
or excusable neglect.”
[Citations omitted, Bracketed material added)
“86.1. An action brought under the Long-Term Care, Health, Safety, and Security Act of 1973 … is a limited civil case if civil penalties are not sought or amount to twenty-five thousand dollars or less.” (Citations omitted.)
If a case qualifies as a limited civil case, limitations are placed on pleadings that may be filed, bushes that may be brought, and discovery. Therefore, parties must be careful in choosing the discovery they propound. They are only allowed one deposition and up to thirty-five written discovery items under CCP section 94. Items can include interrogatories, requests for the production of documents, or request for admissions.
However, the parties may use case questionnaires as provided by CCP section 93:
(a) The plaintiff has the option to serve case questionnaires with the complaint, using forms approved by the Judicial Council. The questionnaires served shall include a completed copy of the plaintiff’s completed case questionnaire and a blank copy of the defendant’s case questionnaire.
(b) Any defendant upon whom a case questionnaire is served shall serve a completed defendant’s case questionnaire upon the requesting plaintiff with the answer.
(c) The case questionnaire shall be designed to elicit fundamental information about each party’s case, including names and addresses of all witnesses with knowledge of any relevant facts, a list of all documents relevant to the case, a statement of the nature and amount of damages, and information covering insurance coverages, injuries, and treating physicians. “
Case questionnaires should be used when possible. They can obtain a great deal of information without using any of the limited discovery allowed by CCP 94. It is true that under section 95, the court may grant permission or further discovery. Still, it may only do so when the parties may not otherwise adequately try the case.
The discussion of limitations in civil cases shows that not every example of litigation needs to be costly. Well, there appear to be no studies that quantify the cost of limited civil cases. 80% of the cost of civil litigation goes to discovery. Since the discovery in limited civil cases is very restricted, the cost must be low. Experts suggest that parties in civil cases use limited-scope agreements with their attorneys to keep costs manageable, bringing them in only when their expertise is needed.
Efficiency in unlimited cases
The same cost-saving principles – using only the discovery needed and limiting unnecessary legal work can be applied to unlimited civil cases (those concerning more than $25,000). Too often, attorneys overdo discovery in more prominent cases, searching for every last bit of information regardless of its cost or usefulness. They also bring motions (or doing things that lead to motions) without regard for the likely outcome.
For example, if counsel demurs to a cause of action or entire complaint, the odds are that even if it is sustained, leave to amend will be granted. The result will be a complaint that is stronger than before. This is expensive and counterproductive unless the strategy is to spend one’s opponent into submission.
Litigation can be a focused and efficient process. Limit discovery, objections, and motions to those with practical benefits. Of course, some clients want their attorneys to be super aggressive regardless of cost. Still, the ramifications should be discussed at the beginning of the process.
Defining the word litigate is simple. But what it really means depends on how much is at stake and the effort put into the economy, efficiency, and settlement during the process.