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Los Angeles Lawyer Dana B. Taschner

 

DANA B. TASCHNER


"Lawyer of the Year Award...Through your outstanding leadership and advocacy, you have provided the voice of justice in protecting the basic human rights of your clients."
- California Governor, Gray Davis

 

"I just wanted to say thank you, Dana, for the help you have provided at your website, so I could understand my situation and rights. A horrid incident happened to me resulting in fraud perpetrated against me and I deserve vindication and restitution. Again, thank you for the education and it was my mother, with 10,000 followers, that went to Congress; late 50's/60's resulting in the 72 hours grace period after signing any contract. If alive, she would totally respect you/your willingness to help consumers; as they stated she was a pre-Ralph Nadar and spent her life educating the Consumer. Sincerely, Karen C."

 
About Lawsuits
  A lawsuit is a civil action brought before a court in which the party commencing the action, the plaintiff, seeks a legal remedy, usually for a tort. If the plaintiff is successful, judgment will be given in the plaintiff's favour, and a range of court orders may be issued to enforce a right, impose a penalty, award damages, impose an injunction to prevent an act or compel an act, or to obtain a declaratory judgment to prevent future legal disputes.

It usually involves dispute resolution of private law issues between individuals, business entities or non-profit organizations. However, it may involve public law issues in those jurisdictions that enable the government to be treated as if it were a private party in a lawsuit (as plaintiff or defendant regarding an injury), or that provide the government with a civil cause of action to enforce certain laws rather than criminal prosecution.

Rules of Procedure and Complications in Lawsuits
Rules of civil procedure govern the conduct of a lawsuit in the common law adversarial system of dispute resolution. Civil procedure is additionally constrained/informed by separate statutory laws, case law, and constitutional provisions that define the rights of the parties to a lawsuit (see especially due process), though the rules will generally reflect this legal context on their face. The details of procedure will differ from jurisdiction to jurisdiction, and often from court to court within the same jurisdiction. The rules are very important for litigants to know, however, because they dictate the timing and progression of the lawsuit--what may be filed and when to get what result. Failure to comply with the procedural rules can result in serious limitations in conducting the trial or even dismissal of the lawsuit.

Though the vast majority of lawsuits are settled easily and never even get to trial, they can expand into a very complicated process. This is particularly true in federal systems, where a federal court may be applying state law or vice versa, or one state applying the law of another, and where it additionally may not be clear which level (or location) of court actually has jurisdiction over the claim or personal jurisdiction over the defendant. Domestic courts are also often called upon to apply foreign law, or to act upon foreign defendants, over whom they may not, as a practical matter, even have the ability to enforce a judgment if the defendant's assets are outside their reach.

Lawsuits become additionally complicated the more parties that are involved. Within a "single" lawsuit, there can be any number of claims and defenses (all based on numerous laws) between any number of plaintiffs or defendants, who each can bring any number of cross-claims and counterclaims against each other, and even bring additional parties into the suit on other side after it progresses. However, courts typically have some power to separate out claims and parties into separate suits if it is more efficient to do so, such as if there is not a sufficient overlap of factual issues between the various claims.

The Progress of a Lawsuit
The following is a generalized description of how a lawsuit may proceed in a common law jurisdiction:

Pleadings
The lawsuit begins with the plaintiff filing a complaint with the court. This complaint will state that the plaintiff is seeking damages or equitable relief from a stated defendant, and what the legal and factual bases for doing so are. The clerk of court then issues a summons, or serves process, upon the defendant to notify him that he is being sued and provide him with the nature of the claims. Once the defendant receives this notice, he has a time limit to file a response explaining his defenses to the plaintiff's claims, including any challenges to the court's jurisdiction, though some courts impose no limit on certain jurisdictional challenges.

Usually the pleadings are drafted by a lawyer, but in many courts a person can file papers and represent themselves, which is called appearing pro se. Many courts have a pro se clerk to assist people without lawyers.

Pre-trial

The early stages of the lawsuit may involve discovery, which is the ordered exchange of evidence and statements between the parties based on what they each expect to argue during the actual trial. Discovery is meant to eliminate surprises and clarify what the lawsuit is about, and perhaps to make a party realize they should settle or drop the claim, all before wasting court resources. At this point the parties may also engage in pretrial motion filing in order to exclude or include particular legal or factual issues before trial, by blocking the other party from presenting a particular witness or arguing a particular legal theory.

At the close of discovery, the parties may pick a jury and then have a trial by jury. Or, the case may proceed as a bench trial heard only by the judge, if the parties waive a jury trial, or if the right to a jury trial is not guaranteed for their particular claim (such as those under equity in the U.S.) or for any lawsuits within their jurisdiction.

Trial and Judgment
The lawsuit may then proceed similarly to a criminal trial, with each side presenting witnesses and submitting evidence, at the close of which the judge or jury renders their decision. Generally speaking, the plaintiff has the burden of proof in making his claims, which means that it is up to him to produce enough evidence to persuade the judge or jury that his claim should succeed. The defendant may have the burden of proof on other issues, however, such as affirmative defenses.

There are numerous motions that either party can file throughout the lawsuit to terminate it "prematurely"--before submission to the judge or jury for final consideration. These motions attempt to persuade the judge, through legal argument and sometimes accompanying evidence, that because there is no reasonable way that the other party could legally win, there is no sense in continuing with the trial. Motions for summary judgment, for example, can usually be brought before, after, or during the actual presentation of the case. Motions can also be brought after the close of a trial to undo a jury verdict that is contrary to law or against the weight of the evidence, or to convince the judge that he should change his decision or grant a new trial.

Also, at any time during this process from the filing of the complaint to the final judgment, the plaintiff may withdraw his complaint and end the whole matter, or the defendant may agree to a settlement, which involves a negotiated award followed also by the plaintiff withdrawing his complaint and the settlement entered into the court record.

Appeal
After a final decision has been made, either party or both may appeal from the judgment if they are unhappy with it (and their jurisdiction grants the ability). Even the prevailing party may appeal, if, for example, they wanted an even larger award than was granted. The appellate court (which may be structured as an intermediate appellate court and a higher supreme court) will then affirm the judgment, refuse to hear it (which effectively affirms), reverse, or vacate and remand, which involves sending the lawsuit back to the lower trial court to address an unresolved issue, or possibly for a whole new trial. Some lawsuits go up and down the appeals ladder repeatedly before finally being resolved.

Enforcement
When there finally is a final judgment, the plaintiff will likely be barred under res judicata from trying to bring the same or similar claim again against that defendant, or from relitigating any of the issues, even under different legal claims or theories. This prevents a new trial of the same case with a different result, or if the plaintiff won, a repeat trial that merely multiplies the judgment against the defendant.

If the judgment is for the plaintiff, then the defendant must comply under penalty of law with the judgment, which will usually be a monetary award. If the defendant fails to pay, the court has various powers to seize any of the defendant's assets located within its jurisdiction. If all assets are located elsewhere, the plaintiff must file another suit in the appropriate court to seek enforcement of the other court's previous judgment. This can be a difficult task when crossing from a court in one state or nation to another, though courts tend to grant each other respect when there is not a clear legal rule to the contrary. A defendant who has no assets in any jurisdiction is said to be "judgment-proof." In most cases, nothing can be done to collect an award from a moneyless defendant.

Unfortunately for plaintiffs, imprisonment of an indigent judgment-proof defendant is simply not available as an alternative remedy; debtor's prisons have been outlawed by statute, constitutional amendment or international human rights treaties in the vast majority of common law jurisdictions.

Specific Legal Topics
Torts
Product Liability
Negligence


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