A Proven Track Record When It Counts Most


A construction defect can significantly torpedo your property’s value. And, equally alarming, an ignored construction defect can result in heightened financial liability given the ongoing possibility of injury. Generally, a construction defect exists when the components of a home or building (or, the surrounding infrastructures) fail to perform as intended and/or fail to comply with applicable building standards.

If you need to file a lawsuit, or find you have been named as a defendant in one, you need a team experienced in construction litigation. The clock starts ticking on various deadlines once you’ve been served, so time is of the essence.

LS Carlson Law’s construction litigation attorneys have successfully protected homeowner rights throughout Southern California. The firm’s phenomenal trial record speaks for itself. What you need is to win. And our creative and highly calculated trial attorneys at LS Carlson Law do just that.

SUCCESSES IN CONSTRUCTION LITIGATION


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Understanding The Litigation Process


Often, when people hear the word “litigation,” they tend to picture a courtroom — with a judge, jury, lawyers, and witnesses all playing their parts. And there’s nothing wrong with that picture, at least so far as it goes, because trial is part of the litigation process. But it’s only part of it.
In fact, by the time cases actually get to trial (and most don’t), they always occur at the tail end of a long process. The term “litigation” describes the entirety of that process.

The Pre-Litigation Phase

1. Initial Meeting / Demand Letter

Evaluate facts and litigation strategy/goals, discuss settlement position & if appropriate, prepare written demand (e.g., cease and desist, demand for payment, demand for preservation of evidence)

Often, before filing a lawsuit, many plaintiffs will try, either on their own, or with the aid of their attorneys, to resolve their disputes informally by sending written demands to the other side. A “demand letter” is often the first salvo in what may become litigation. We’ve included this as part of the litigation process, even though it technically isn’t, both because of its importance in resolving a lot of disputes before forcing the parties to expend large sums of money, and to stress the fact that litigation should always be a last resort.

Written demands take many forms, from a demand for payment, to a cease and desist letter to someone who is infringing on a plaintiff’s trademark or patent. While sometimes required by contract or statute, they are almost always worth while, as many cases tend to settle before a lawsuit gets filed. Sometimes, just the act of hiring a lawyer to write a demand letter is enough to compel compliance.

2. Alternative Dispute Resolution (When Applicable)

When applicable, participate in non-binding arbitration or mediation.

ADR, or alternative dispute resolution, generally takes one of two forms: (i) arbitration; or (ii) mediation.

Arbitration
Briefly, the arbitration process is comparable to the litigation process, and an arbitration itself is like a trial — evidence is gathered, presented, and weighed, and witnesses can offer testimony. The arbitrator, taking the place of the judge and jury, evaluates the evidence presented, and makes a decision regarding liability and damages. In the case of binding arbitration, the arbitrator’s decision is final and
difficult to appeal, and most importantly can be filed with the court as a judgment. This Guide will not address the arbitration process.

Mediation.

Unlike arbitration, mediation is just another word for formal settlement talks. It does not involve any decision by an arbitrator as to the facts or law of the case, and it does not result in any decision, ruling, or judgment. Rather, the parties will typically select a mutually agreeable mediator (often a retired judge or experienced attorney) and provide the mediator with confidential briefs outlining the facts and law supporting their cases.

At the mediation, the parties will typically be placed in different rooms, with the mediator floating between the parties and attempting bring each side closer together.

Good mediators are skilled at highlighting the weaknesses of each party’s case and pointing out the risks associated with litigation. In the end, whether the dispute is resolved at mediation is entirely up to the parties and their attorneys.
Sometimes, mediation is required, such as when a contract mandates that the parties mediate a dispute before proceeding with litigation, but most of the time, participation is purely voluntary.

So, while mediation costs money – the parties have to pay the mediator and their respective attorneys – if there’s a reasonable chance that the case might settle, it’s almost always worth pursuing.

The Litigation Phase

1. Complaint / Cross-Complaint (Filing The Lawsuit)

This is the true start of the litigation process where the plaintiff prepares, files & serves a complaint (or cross-complaint if filed by a defendant) containing one or more causes of action (claims)– which is what people are talking about when they say that they “filed a lawsuit.”

Complaint

A well-crafted complaint will contain a clearly written recitation of the relevant facts of the case, one or more discreet causes of action (or claims), and a “prayer” for relief. The types of causes of action you might see in a typical business litigation case include, for example, breach of contract, fraud, intentional or negligent misrepresentation, breach of fiduciary duty, interference with contract or with prospective business advantage, unfair competition, negligence, conversion, etc.

A well-crafted cause of action will make sure to include all the necessary elements that the law requires. For example, to properly plead a cause of action for breach of contract, the complaint must allege: (i) the existence of a contract with the defendant; (ii) plaintiff’s performance or excuse for non-performance; (iii) defendant’s breach of the contract; and (iv) the plaintiff’s damages resulting from defendant’s breach. If a plaintiff fails to plead all of those elements, the cause of action can be thrown out by the filing of a motion or demurrer by the defendant, and if a plaintiff fails to prove any of those elements at trial, the plaintiff should theoretically lose.

Cross-Complaint

Cross-Complaint. Sometimes, a defendant has causes of action of its own that it wants to allege against the plaintiff. In such cases, the defendant can file a cross- complaint against the plaintiff. A cross-complaint is virtually identical to a complaint (in that it contains a recitation of relevant facts, one or more discreet causes of action, and prayer for relief), except that it is filed in the same lawsuit as plaintiff’s complaint. Both the complaint and the cross-complaint will be tried together, at the same time, with the same judge, and where applicable, with the same jury. When a cross- complaint is filed in a case, the defendant is referred to both as a “defendant” and a “cross-complainant,” and the plaintiff is referred to both as a “plaintiff” and a “cross-defendant.”

2. Respond to the Complaint / Cross-Complaint

Demurrer to, or otherwise challenge the sufficiency of, the complaint or cross-complaint, or alternatively, file an answer and assert relevant affirmative defenses.

Typically, within 30 days of a complaint’s service on a defendant, the defendant must file with the court a formal response to the lawsuit. Depending upon the circumstances, there are several such available responses. Such responses might challenge the appropriateness of the jurisdiction or venue or sufficiency of the complaint. Ultimately, however, if a complaint survives such challenges, the defendant will eventually have to file a formal “answer” to the claims alleged.

Motions Challenging Complaint

There are a variety of ways a defendant may challenge a complaint. For example, if a defendant contended that service did not occur as required by law, (i.e., nobody attempted personal service), a defendant might file a motion to quash service. Or if a defendant believed that the lawsuit should have been filed in a different venue (i.e., because of a venue clause in a relevant contract), such a defendant might file a motion to change venue.

Demurrer

The most common means of challenging the sufficiency of a complaint is the demurrer. A demurrer is a written response to a complaint that basically states that even if everything alleged in the lawsuit is true, there is still no legal basis to support the claims alleged. In short, when a party files a demurrer to a complaint or cross-complaint, the party is saying “So What?” to one or more of the claims asserted.

Motion to Strike

A defendant can also file a motion to strike any “irrelevant, false or improper matter” contained in the complaint. For example, if the complaint contains a demand for attorneys’ fees but there is no contractual or statutory basis for such fees, a defendant could file a motion to strike that demand. A plaintiff can, in some cases, also file a motion to strike all or part of an answer.

The Answer

In cases where a defendant chooses not to challenge a complaint, or after a court has granted the plaintiff leave to amend the complaint and the defendant does not wish to issue any further challenges to the complaint’s sufficiency, the defendant will file an answer to the plaintiff’s complaint. Except in the case of a verified complaint (a complaint whose allegations are alleged under oath), an answer consists of a general denial and various affirmative defenses.

3. Discovery

Propound & respond to written discovery (e.g., interrogatories, document requests, etc.) & take or defend depositions of key witnesses, including expert witnesses

A necessary part of the litigation process is the ability of the parties to gather information and evidence necessary to prove their claims or defenses. The means of gathering such information is called the discovery process, and the process as a whole can be broken down into two primary areas: (i) written discovery; and (ii) live testimony given under oath (e.g., depositions).

Written Discovery

Written discovery itself takes several forms, and depending upon whether or not you were seeking information from another party to the lawsuit, or from a third-party, you might choose to serve special interrogatories, form interrogatories, requests for admissions, subpoenas, and/or requests for production of documents.

Depositions

Another very effective and common means of discovery involves compelling a witness to appear to testify at a deposition. The party taking the deposition is then able to ask the witness a variety of questions relevant to the case while the witness is under oath and subject to perjury laws. A court reporter is always present to take down every word that is said, and some parties even choose to videotape certain depositions for use at a hearing or at trial.

Taking a deposition gives a party the opportunity to question a witness under oath to find out what he/she knows, to preserve a witness’s testimony or lock in a particular story, and to provide a look at how the witness will look and sound at trial (i.e., whether the witness is believable, likeable, tells a coherent story, etc.).

4. Trial

Prepare for trial, file or oppose evidentiary motions (e.g., motions in limine) & attend trial.

Trial Preparation

In the weeks leading up to trial, each party’s attorneys will be hard at work preparing for the trial by conducting detailed analysis of all documents relevant to the case, drafting witness outlines, preparing opening statements, subpoenas, motions in limine, and trial briefs, and engaging in myriad activities that need to be completed. For example, court rules require that the parties work together to create a joint statement of the case, a joint exhibit list, a joint witness list, and jury instructions (if there’s a jury). Together, those tasks take dozens of hours, and partially explain why litigation is so expensive (and why most cases settle before that stage).

Trailing

On the date designated for trial, the parties and their attorneys will meet at court to announce themselves ready to proceed with trial. But that doesn’t necessarily mean that the trial will begin that day. Rather, it is quite common for a case to be trailed — meaning that the parties are sent to another courtroom because the designated trial judge is in the middle of another trial and can’t begin the trial as planned. And many counties in California have rules that require the parties to remain in the courthouse during business hours while their cases are trailing (at least for a few days), presumably to give another judge who has time to hear the case a chance to do so, but really to facilitate last minute settlements. If, after a few days, another judge doesn’t pick up the case, the parties are provided with a new trial date (usually several weeks or a month in the future) and an order to return on the newly designated date.

Last Minute Hearings

Assuming, however, that a judge picks up the case, or the designated judge is ready to proceed when your case is called for trial and your case never trails, the judge may then proceed to hold a hearing on the motions in limine the parties filed, as well as take care of any other issues that may need to be resolved prior to starting the trial. The timing of these and other things might differ from county to county or courtroom to courtroom (so, for example, the motions in limine might have been addressed a week or two prior to the start of trial).

Jury Selection

If one or both parties have requested a jury trial, then a designated number of potential jurors will be selected (i.e., the “jury pool”) and the jury selection process will start. Each of the jurors in the jury pool will have already provided certain information, including their names, occupations, marital status, and the occupations of their spouses. Copies of their responses are then provided to the attorneys on both sides.

At Trial

Once the jury is selected and all the housekeeping business is completed, the trial itself begins. This process generally proceeds along the following lines (although there are variations that won’t be discussed in this Guide): (i) opening statements; (ii) examination and cross-examination of plaintiff’s witnesses; (iii) resting of plaintiff’s case; (iv) possible motions (e.g., for non-suit); (v) examination and cross- examination of defendant’s witnesses; (vi) resting of defendant’s case; (vii) possible motions (e.g., for directed verdict); (viii) closing statements; (ix) reading of the jury instructions; (x) jury deliberations; and (xi) reading of the jury verdict. If there’s a cross-complaint involved, then those same steps will apply to the cross- claims as well.

5. Post-Trial Motions & Appeals

File or oppose motion for new trial or motion for judgment notwithstanding the verdict & if applicable, file an appeal.

Post-Trial Motions

After the jury has rendered its verdict and been dismissed, the parties have a chance to file a variety of post-trial motions. The two most common ones are a motion for judgment notwithstanding the verdict and a motion for a new trial (see the definitions section). There are, however, a variety of post-trial motions that won’t be discussed further in this Guide (e.g., motion to vacate judgment, motion to stay enforcement, motion to correct a clerical error, etc.)

Appeal

Ultimately, if a party isn’t happy with all or part of a verdict, subject to a variety of rules, a party may appeal a verdict to have it overturned.

L.S. Carlson Law

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