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Friday, May 29, 2020
Blog Lawsuits:  Nasty, Brutal, But Short?

Lawsuits:  Nasty, Brutal, But Short?

The federal and state courts in Santa Clara County are some of the busiest in California and the nation as a whole.  With its dynamic economy and population of nearly 2 million, Santa Clara County is the Bay Area’s most populous county (sorry, San Francisco) and sixth most populous county in California.

However, there are a couple of judicial facts that many in the South Bay may not know.  To begin with, Santa Clara County is home to influential courts like the Federal District Court (San Jose) and California Court of Appeal (6th District, San Jose).  What is more, those courts hear a disproportionate share of high-profile lawsuits involving household names such as Apple, Google/Alphabet, and Cisco.

When you hear the word “lawsuit”, you might conjure up images of a tense, high-stakes trial.  However, that is exactly where perception is removed from reality, because the vast majority of cases never make it to trial.  What does this mean?  While lawsuits can become nasty and brutal, it is possible to cut them short – and, in the process, achieve your goals.

Before we go further, it might help to discuss how a civil (non-criminal) case begins.  You may know the first step:  the plaintiff files a “complaint”.  However, what is not as well known is that before a lawsuit is filed, a lot of behind-the-scenes work has already taken place.  For starters, it is likely that both sides engaged in settlement discussions, but did not succeed in resolving their differences.

Indeed, responsible trial lawyers must always do the legal equivalent of “walking and chewing gum at the same time”.  They must not only zealously and strategically fight for their client in the courtroom, but must be prepared to promptly initiate and respond to settlement proposals.  Why?  Because you cannot control what a judge or jury might decide.

At the early stages of a case, the judge acts as gatekeeper.  After a lawsuit is filed, the defendant can either file an “answer” (which identifies his or her legal defenses) or a “motion to dismiss” (which is called a “demurrer” in state court).  By ruling on a motion to dismiss, the judge decides whether the lawsuit has sufficient legal merit to proceed to “discovery” (the information-gathering phase).

During discovery, the parties are required to exchange relevant information and make witnesses available for questioning in depositions.  Again, the judge will step in if there is a disagreement about the information or witnesses that must be provided.

At any time, both sides can engage in settlement negotiations in at least three ways:  (1) face-to-face, telephone, or email negotiations, (2) using a mediator who will try to convince both sides to settle the case, or (3) using an arbitrator who – acting as the judge and jury – will decide the entire case.  In my two decades of practice, I have found mediation sessions to be quite helpful – because even if the case does not settle, both sides receive impartial feedback from a neutral party (the mediator).

Suppose, however, that the case has not settled by the close of discovery.  If one side believes that it has enough evidence to win the case without a trial, it can file a “motion for summary judgment”.  Here again, the judge acts as gatekeeper:  he or she decides whether (or not) a case should proceed to trial.

A trial can be decided by a jury – or, if both sides agree, by the judge (which is called a “bench trial”).  While juries are notoriously unpredictable, judges are also unpredictable.  If the same case were given to two judges, it might be decided differently – because different judges may reach different conclusions regarding both the facts (including whose testimony is more credible) and legal precedent.

In contrast to being at the mercy of a judge or jury, you can control the terms of a settlement.  Thus, a responsible lawyer must not only fight hard, but fight “smart”.

Suppose that, early in the case, your side wins a motion to dismiss – but there is a chance that the appeals court may overturn the trial court’s ruling.  Depending on the severity of this “appeal risk”, your side may decide to “quit while they are ahead” – and make an offer to settle the case once and for all.

When life gives you lemons, make lemonade.  Here in the Land of “Disruption”, strategic thinking can cut a lawsuit short:  reducing the risk of uncertainty, achieving your goals, and giving you peace of mind.  When considering attorneys, make sure they have your best interests in mind.

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