This article is written for the lay-person (non-lawyer) who wants to better understand how a lawsuit and trial actually work in practice, as well as for young litigators and non-litigator attorneys who want to do the same thing.

Too many practice guides and handbooks on litigation procedure and trial work are hopelessly complicated and lengthy, making them useful to the practitioner but unhelpful or pointless for the casual observer.

In this article, I will try to give a general overview of what actually happens in lawsuit from the time it is started until it is "finished" (i.e., adjudicated to conclusion in the court of first instance, with all ensuing appeals exhausted or waived).

If you want the labyrinth details, I refer you at once to the many excellent practice guides. Since I practice law in San Diego, my own favorites for this purpose are the Rutter Group Guides to pre-trial procedure and trial procedure in both the California and federal court systems.

But please continue reading if what you seek instead is an informative overview with various tips and pointers from a battle-scarred litigator, along with a smattering of colorful, illustrative examples.

What Is a Lawsuit?

If two or more legal persons become embroiled in a dispute that they cannot resolve on their own, one or more of them may decide that the dispute can be resolved only by means of a lawsuit. A lawsuit is a legal proceeding by which one or more parties asks a court of law to give specified relief because of legal wrongs that another party or parties have allegedly committed.

More exactly, a lawsuit is a legal proceeding undertaken to redress an alleged legal wrong that is brought by one or more plaintiffs against one or more defendants in a court that wields jurisdiction over the litigants and over the subject-matter of the controversy. Once the lawsuit is properly begun, the Court has jurisdiction over the parties and over their dispute, and it therefore has the power to resolve the controversy by issuing interim orders and eventually a final judgment, which bind the parties and can be enforced against them.

This is no joking matter. If Mr. Smith obtains, say, a judgment for $85,000 against Mr. Jones, the judgment will accrue interest at 10% per year and can be renewed every ten years. All the while, Mr. Smith can try to enforce the judgment by recording it as a lien against real property that Mr. Jones owns, by levying money that Mr. Jones holds in his bank accounts, by garnishing his wages, by summoning him and his colleagues to "judgment-debtor" exams at which they are examined about Mr. Jones' financial dealings, by sending a sheriff into Mr. Jones' shop to collect funds paid by his customers, and so on and so forth.

If the judgment includes an injunction that permanently forbids Mr. Jones to engage in a certain activity, then Mr. Jones can be fined and sent to jail for contempt of court every time he engages in the proscribed activity. If the lawsuit is a criminal prosecution brought by a public prosecutor (as opposed to a civil prosecution brought by a private litigant), the accused can be sent to jail or even ordered to forfeit his life. Lawsuits matter, and sometimes the stakes are very high.

After a lawsuit is begun, but before it is concluded, the parties can agree to settle it at any time. If they fail to do so, the Court will ultimately decide the case by either dismissing it or entering a judgment against one or more of the parties.

The Court in which the lawsuit is litigated is called the court of first instance or the trial court, and its decision in the case can be appealed, as can certain of its interim orders made before its final decision. The original judgment might or might not be modified or reversed by an appeal, but eventually there will be a final judgment from which no more appeals can be made. This final judgment constitutes the definitive resolution of the controversy, and the parties can never again complain about the matters in dispute in this controversy. It has been thus resolved. This definitive resolution is called res judicata, and the related doctrine of collateral estoppel can be used to bar a re-litigation of specific issues in a subsequent proceeding.

All properly prepared settlements likewise resolve their underlying controversies, so that a settlement of a lawsuit brings a final end to the underlying dispute. Nearly all lawsuits settle, but some cases do go to trial.

The Litigator's Paradox

I have noted above that most lawsuits settle by voluntary agreement between the litigants before the case is decided.

But never forget the litigator's paradox: If you bring suit in the hope of getting a good settlement, you will either receive a paltry settlement or none at all from defendants who will probably see right through your ploy and despise you for it. But if you bring suit with every intention of gathering and organizing the evidence you need in order to prove your claims, the defendants will take you much more seriously. They may still resist and genuinely believe you have no good case, but if you persevere and begin to make clear to them that you might well prevail at trial, they will usually become inclined to resolve the case by offering a reasonable or even a handsome settlement.

I call this the litigator's paradox. If you go to court to settle, you will get no decent settlement and will end up having to try the case. If you go to court to win, you might well obtain a good settlement far earlier than you hoped. Of course, every case depends upon its own variables and internal dynamic, but this has been my general experience.

This in turn means the following: A litigator must always be prepared to take his case to trial. If he is not, he is merely beating his chest and bellowing in the wind, not litigating a case.

First Illustrative Example

In this article I mean to walk you through the basic steps of a lawsuit. In order to do so, I want to have a standing example, which I can refer to as I wish in order to make my points more clearly. Here then is my example.

We will suppose that my neighbor has stolen tomatoes from my expansive tomato garden, and that I have filmed the episode on video-tape (in real life my neighbors are fine, upstanding citizens and delightful neighbors, but I need an example, and this one will have to do).

Let's further suppose that I was under contract to sell these tomatoes to a famous French chef, named Paul DuBois, who lives in France but shops for the best tomatoes all over the world. Chef DuBois intended to use my tomatoes to make his world-famous "authentic tomato sauce", which he sells in grocery stores across Europe and North America, with an expanding market in Asia and Latin America. Since he cannot buy tomatoes from me, he is forced to buy his produce instead from another gardener whose tomatoes, unlike mine, are infested with the e-coli bacteria. Dubois' tomato sauce then kills seventeen innocent customers, one of whom was a 29 year-old neurosurgeon with a lifetime earnings probability of at least $20 million. Dubois' food products in the meantime suffer horrible press around the world, and his once promising business collapses irreparably.

Dubois resolves to have justice, exclaiming in fury: "I will sue everyone responsible for this catastrophe. I will have justice from everyone involved, even if it is the last thing that I ever do!" (He says this in French, but I have given you the translation).

This then will be our example.

In this example, I am furious at my neighbors, whom I trusted, and who stole my tomatoes from me, putting into motion a chain of events that culminated in a worldwide health crisis! I am very furious indeed.

"Private Justice"

Suppose that my first impulse is to confront my neighbor, perhaps manhandle him a little, seize my tomatoes by force from him, and threaten violence unless he pays me "every penny that his theft will cost me". Suppose my neighbor is a swaggering bully who at this provocation takes out his pistol and shoots me, crippling me for life. Imagine an ensuing feud between our families that lasts five generations and takes the lives of fourteen people. Think about the Hatfields and the McCoys. This is probably how they got started.

You see my "private justice", however pleasing to me in my daydreams, is fraught with peril and is very likely to miscarry horribly. I cannot accost my neighbor, even if he has stolen my tomatoes, and even if I have videotape of the entire incident. If I do so, I perhaps run the peril of my life, or perhaps I involve my family and his in an ever-worsening rivalry. If nothing else I fear that I will be arrested and publicly disgraced.

I never even have to consider these points because I belong to a civilized society in which disputes are resolved by rule of law, not by brute force or private justice. Those who breach the peace refuse to accept these bedrock principles, and the law must be especially firm in its dealings with them (but this is another topic, reserved for another day).

Why We Have the Law and Lawyers

As noted above, I cannot seize and punish my neighbor myself, but must instead seek redress from "the law". This is the whole point.

In a civilized society we resolve conflict by rule of law, using regular, pre-defined procedures that meet standards of due process. Anything less is lawlessness and barbarism.

This is why we have laws, lawyers, and lawsuits. Remember that the next time you put down a lawyer, thinking yourself clever or funny for doing so. Lawyers are necessary to the administration of the rule of law. We are officers in a system of rule of law, by which our many, inevitable controversies are resolved: Criminal offences are handled by public prosecutors, who in turn are usually aided by an investigative police force that has authority to arrest and detain those suspected of criminal wrongdoing. Private offenses are pursued by private litigants in civil court, where in the final instance a judge and perhaps a jury say what must be done as between the plaintiff who brought the suit and the defendant who answered it. If a government officer breaches his duty or abuses his authority, he too can be held to account in a number of different ways. Yes, this system has its many drawbacks and burdens, and many lawyers deserve all the ridicule and derision that a scornful public enjoys heaping upon them. But the law and lawyers are infinitely better than gangs and thugs or than kings and lords, and to my knowledge rule of law is the best method in an imperfect world for resolving human disputes. I am therefore very proud of what I do and make no apology to any man for my profession, which rather is my honor as well as my calling.

A lawsuit, then, is the procedure that we use to resolve disputes that the protagonists cannot resolve on their own by a private agreement.

If my neighbor steals my tomatoes, I can bring a civil suit against him myself, or I can report the matter to the police, hoping that the they will initiate a criminal investigation that will result in a public lawsuit (criminal prosecution) of my neighbor. Or I can do both.

Criminal Prosecutions and Civil Lawsuits

Let's return now to my example, which has taken place in lovely San Diego, where I am angry at my neighbor and wish to report him to the local police. I therefore make a visit to the local police and show them the incriminating videotape, confident that I have just given convincing proof of the crime of the century (each person naturally tends to think that his matter is the most important of all, but most the time no one else does). Of course, the police and public prosecutors have enormous discretion to decide which criminal matters they wish to investigate and prosecute. After viewing my video, the police offers snicker, saying that they have better things to do with their time than to pursue such "small tomatoes". So there will be no criminal prosecution of this tomato larceny: My neighbor, by stealing the tomatoes, has committed the criminal offence of larceny, but again the public authorities have decided not to bring a criminal lawsuit against him. If there were to do so, they would act in their capacity as public officials bringing a lawsuit for criminal offenses against the defendant, who is sometimes called the accused. Such a lawsuit is always an independent proceeding in which no other claim can be litigated except for related criminal charges. The burden of proof and procedural issues in a criminal case are different from a civil lawsuit that one private party might wish to bring against another, seeking not a criminal conviction but rather a civil judgment. Thus it may be said that a criminal prosecution and a private lawsuit are two different kinds of lawsuits, but each is lawsuit all the same: In each instance, one party brings suit against one or more defendants in a court of law, which can then conduct a trial of the alleged facts and apply the law to these facts in order to reach an outcome, which is binding on the parties and constitutes a definitive resolution of the matter adjudicated. Criminal lawsuits are different from civil ones, but both are lawsuits. A private person has no authority to bring a criminal case. Only a public prosecutor can do so. These points are probably obvious to you, but you might be surprised at how many people do not understand either (1) the difference between a criminal prosecution and a civil lawsuit, or (2) the similarities between them. This said, I observe that I am a civil litigator who represents private litigants in civil claims that they bring or that are brought against them, and this article will now devote itself to an examination of civil lawsuits.

Personal Jurisdiction, Subject-Matter Jurisdiction, and Venue

One of the first issues that my attorney must consider is where to file my lawsuit against my neighbor? The answer is always the same: My suit must be brought in a court that has personal jurisdiction over all the defendants and subject-matter jurisdiction over the underlying controversy. When I file suit in this matter in a given court, I am asking the court to exercise its personal jurisdiction over the defendant (my neighbor), summoning him to appear before it to answer my charges, over which it must have subject-matter jurisdiction, or else it cannot hear the case. In this instance, both points will be child's play to establish. My neighbor lives in this jurisdiction (California), and the best way to establish personal jurisdiction is to sue the defendant where you find him, or, in other words, in the jurisdiction where he maintains his legal domicile. Another way to establish personal jurisdiction is to say that the defendant committed the wrongdoing in the jurisdiction where you wish to sue him, and this argument would work for me as well: My neighbor not only resides in California, but also committed the legal wrong here. In other cases you can establish personal jurisdiction by showing that the defendant breached a contract that was supposed to be performed or that was made in the jurisdiction; or by showing that he maintains sufficient "minimal contacts" so that he can expect to be sued in this jurisdiction, at least with respect to the transactions at issue, etc. As for subject-matter jurisdiction, it is likewise a simple matter in this instance. Stealing another's tomatoes is both a criminal offense that can be publicly prosecuted (larceny) as well as a civil offense that can be privately litigated (conversion of assets). The state courts of California have subject-matter jurisdiction of all common-law torts, such as conversion of assets. Indeed, all state courts everywhere in the United States have subject-matter jurisdiction over all crimes and civil claims, save those as to which the federal courts have pre-emptive or exclusive jurisdiction. Suppose I were to bring suit under the federal Sherman Act (an antitrust statute). I would be obliged to do so in federal court. The state courts do not have subject-matter jurisdiction over matters brought under Sherman Act. The federal courts have pre-empted jurisdiction over all claims made under the Sherman Act. This is called pre-emptive or exclusive federal jurisdiction. But in our example, that of tomato-thievery, I can sue my neighbor in a California court, which will have personal jurisdiction over my neighbor as well as subject-matter jurisdiction over my civil claim for conversion, which I want to make against him. California of course is a very big state. Should I sue him in any particular part of the State? There are trial courts sitting in every county of California. Should I arrange to bring my suit in the part of California that is most remote from San Diego, say in Altoona, California? If I were to try, I would be surely sanctioned for an obvious misuse of a civil procedure, and besides my neighbor would instantly be able to have the matter transferred to a more suitable venue (place): He would make a motion to transfer venue, arguing that San Diego is a more convenient venue than Altoona because it is the location where both the plaintiff and defendant reside, where the wrong allegedly occurred, and where all the witnesses and documentary evidence is located. The case would be instantly transferred to San Diego, where I should have brought it in the first place. Since I am no fool (I hope), I would bring suit in the proper venue in the first place, and so none of this would ever happen. These then are the related issues of personal jurisdiction, subject-matter jurisdiction and venue. They sometimes can present really difficult problems, but not in our example. Cross-claims and Consolidation of Related Claims. To return to our example, I have sued my neighbor for conversion in the California Superior Court for San Diego County. When answering my complaint, my neighbor might consider asserting cross-claims against me or someone else who might have an involvement in the suit. In the meantime, the DuBois Company has sued me for breach of contract in this same court, but in a different proceeding. In response, my attorney makes a motion to consolidate the two proceedings on the ground that they largely concern the same series of transactions and occurrences, and that both cases should be litigated together or at least that the common issues of fact and law should be litigated together, so as to avoid duplicative proceedings or contradictory adjudications of the same issues of fact and law. The judge agrees with my attorney, and he grants the motion, so that my case against my neighbor and DuBois case against me are consolidated.