A public information resource sponsored by the Law Office of David W. Martin - (800) 229-0546


The term “LITIGATION” describes the use of the judicial process to enforce a right or seek a remedy.

Our legal system permits the use of the courts to protect important rights, an thus serves a critical social function. Although people generally try to avoid lawsuits, circumstances occasionally require participation in the process – either as a plaintiff or as a defendant.

SUMMONS & COMPLAINT – Case Begins When the Plaintiff Files a Complaint

Most civil lawsuits (“cases” or “actions”) begin when the plaintiff files a complaint in court that claims (“alleges”) that another person or entity (the “defendant”) did something wrong or interfered with the plaintiff’s rights. After the papers are filed with the court, the plaintiff must then notify (“serve”) the defendant(s).

ANSWER – Defendant Files a Response (and possibly a cross-complaint)

The defendant then responds to the lawsuit, and can dispute the plaintiff’s claims.
If the defendant has any claims against the plaintiff, the defendant may also file a cross-complaint, which is essentially a new case accusing the plaintiff of some form of wrongdoing. In the cross-complaint, the defendant becomes the “cross-complainant” and the plaintiff (and perhaps others) become “cross-defendant(s).”

DISCOVERY – The Parties Exchange Information

Discovery is the term used for the process of exchanging information in a lawsuit. In theory, the parties exchange information under the discovery rules and the court does not get involved unless there is a dispute over the exchange of information.
Discovery methods include: Interrogatories (written questions), depositions (questioning parties and witnesses), examination and production of documents & things (including site inspections and electronically stored information or “ESI”), and requests for admissions, medical examinations & expert witness information.
California state court discovery rules are patterned after the federal court discovery rules and are similar in many respects. State court discovery is regulated primarily by the Civil Discovery Act of 1986, Code of Civil Procedure §§ 2016-2036, and in Rules 331-341 of the California Rules of Court.

TRIAL- Judge or Jury

When the discovery process is complete , or“closes,” the parties gather their evidence and present it, along with the testimony of parties and witnesses, at a trial. Some cases involve issues of law, which are tried exclusively by judges (when the judge decides the case it is called a “bench- trial”), and others involve factual issues that can be decided by a judge or a jury, depending on various factors.
The right to trial by jury depends upon the nature of the claims and whether the parties have requested a jury trial (the parties can always agree to a bench-trial), but is a an important right guaranteed by Section 16, article 1 of the California Constitution.


The decision made at trial will result in a judgment, and will set-forth the amount of money awarded to the prevailing party.


Depending upon the issues raised, the person contemplating a lawsuit must first decide where to bring the action. Some types of case must be brought in a specific court or agency, while other types of cases can be commenced in either state or federal court.

State Courts: The California court system consists of hundreds of local TRIAL COURTS administered on a county-by-county basis, six COURTS OF APPEAL divided among judicial “districts,” and the CALIFORNIA SUPREME COURT, comprised of 7 Justices.

Federal Courts: The Court System consists of over 90 DISTRICT COURTS (including several districts within California) and various other tax, international, and military-related courts. There are 12 UNITED STATES COURTS OF APPEALS, divided into “Circuits” as well as a Circuit for Washington D.C. and a military appeals court. California is within the jurisdiction of the NINTH CIRCUIT COURT OF APPEALS.

There are multiple levels of appeal from judgments at the lower court levels. State Superior Court decisions get appealed to the various district courts of appeal then to the California Supreme Court. Federal District Court decisions get appealed to the Circuit Courts of appeal.  The U.S. Supreme Court has ultimate judicial authority. It reviews Circuit Court of Appeals decisions and has the power to review and overturn California Supreme Court decisions that violate the U.S. Constitution or other federal law that supersedes California law.

ALTERNATIVES TO TRADITIONAL COURT TRIALS: Arbitration & Alternative Dispute Resolution “ADR”

Not every dispute is resolved through the court system. Parties can agree by contract to use an arbitrator long before any dispute arises, and a variety of other devices are available if all the parties involved in the litigation can agree to a particular method. For more information, see the Arbitration & ADR page.


Personal Jurisdiction – out of state and foreign defendants: Constitutional Due Process requires that the person being sued has a connection with the place where the lawsuit is brought. Someone who has never been to California and has never done business in California might argue that California courts do not have the authority to decide their contract dispute, even if the contract was with a California resident.

Venue: Courts require that the lawsuit be brought in an appropriate location, or venue. The lawsuit generally must be started in a location connected with the underlying issues. Either the circumstances that gave rise to the action occurred there, one or more of the parties to the lawsuit live in the area. For instance, a Los Angeles court would not decide a dispute between two San Francisco residents over something that happened in Sacramento, but instead require that the case be brought in a more appropriate location.

STATUTES OF LIMITATIONS – Time Limit for Starting a Case

Limitations Periods: Most people have heard of the “statute of limitations” that requires lawsuits to be commenced within a certain period of time. Depending on the specific claim, or “cause of action,” the case must be commenced before the limitations period expires. If the case is not started within the limitations period, the defendant can raise the statute of limitations as a defense and the courts will not even examine the merits underlying the claims. [The specific limitations periods for most causes of action are found at Code of Civil Procedure §§ 335 – 339.4]