Clients often wonder why the beginning of a lawsuit seems to be slow, in part because much of the work that attorneys complete between first contact with a client and early discussions with defense counsel is invisble to the client.
If you are a consumer, you are likely to be a plaintiff in any consumer rights litigation rather than a defendant.
For a plaintiff like you, the early stages of litigation normally progress through three phases: (1) clien intake, (2) case work-up, and (3) pleading. Here’s what to expect during each phase and what you can do to satisfy yourself that progress is being made.
Litigation starts with client intake
The intake phase of litigation starts when you first contact a law firm to ask for help.
A. Initial consultation: Shortly after you make contact with a firm, they’ll want to speak and/or meet with you to understand more about your problem and what you hope to achieve. The attorneys will want to know what happened, when it happened, who you think is responsible, and how you were harmed.
Parnell & Ziperman knows you’re both busy and eager to take the next step. To keep things simple, our firm normally completes the initial consultation over the phone. If necessary, we can schedule a Zoom call or meet in person.
B. Document collection: Before, during or after the initial consultation, most attorneys will want to obtain documents from you. These documents are usually the most vital pieces of evidence in your case, like a purchase agreement and repair records in a consumer warranty case.
Typically, our firm will request some documents before an initial consultation, but we often use the intiial consultation to identify what documents should exist, working with the prospective client to gather them.
C. Understand the fit for the firm: During intake, attorneys need to figure out which laws apply to their situation and make sure the case will align with what the firm can handle. Attorneys also gather enough information and evidence to meet their ethical obligations under the law and identify any other issues they need to address before moving forward with the lawsuit.
Why It Matters: This stage helps attorneys ensure on the right track. Do they understand what you need? Are they the right attorneys for your needs? Can they ethically pursue claims on your behalf?
On your side of intake, you’re conducting a job interview. You should use the opportunity to make sure you are comfortable and confident with the attorney’s attitude, approach, experience, plan and terms. Remember, attorneys have plenty of cases. You have only one shot at your case. Make sure it counts.
Conclusion: Prospective clients are normally most involved in the intake process. They may meet with the attorneys several times. They may be asked to collect and provide documents. During intake, the attorneys can only move at your speed. Once the attorneys, and you, are satisfied that you can work together, the attorneys should provide a representation agreement. Once signed, the attorneys will begin working up your case for filing.
Attorneys work-up the case before filing
After you’ve hired an attorney, the next step is the work-up phase. This stage is crucial because it sets the foundation for your case, but clients may end up feeling like nothing is happening because the work is normally invisible to the client. Here’s what happens:
A. Research and Investigation: Your attorney will dive deep into legal and factual research based on what was discussed during the intake process. They’ll gather all the necessary information to understand your case inside and out.
B. Developing a Plan: Your attorney will create a plan for how to pursue the litigation. This plan includes flexible timelines and strategies for moving forward. By carefully planning, your attorney can gain an advantage over the defense team. They control when the complaint is filed, which can catch the defendant off guard and put them in a weaker position that can give the consumer an advantage throughout litigation.
C. Drafting the Complaint: Your attorney will draft a complaint, which is the document that starts the lawsuit. This is a detailed outline of what happened and why you’re taking legal action. It’s like laying out the story of your case for the court.
Why It Matters: In cases involving motor vehicles, extensive research is especially important. Your attorney will identify specific components of the vehicle that are at issue and how they affect its operation. They’ll gather evidence to support your case, such as records of previous failures of similar components and expert opinions on their significance.
Conclusion: The work-up phase may take time, but it’s essential for building a strong case. By thoroughly researching and planning during this stage, your attorney can set the stage for success in the rest of the litigation process. So, even though it may seem like things are moving slowly, rest assured that your attorney is working hard behind the scenes to fight for your rights.
This phase ends as soon as your attorney files your complaint, the document that starts your lawsuit and the pleading phase of litigation.
Court proceedings begin with pleadings filed by all parties
As soon as your attorney files your complaint, or document that alleges how you were harmed, witht a court, deadlines start hitting.
A. Service on defendants: Within 60 days of filing your lawsuit, you attorney must serve a copy of the lawsuit on the defendants.
After each defendant is served, your attorney must file a proof of service, a sworn statement about the date, time and way that the defendant was served. In many cases, attorneys will pay a company to serve the lawsuit and file the proof of service.
B. Defense responses to the complaint: Once a defendant has been served, it typically has between 30 and 40 days to answer the lawsuit or otherwise respond.
In many consumer protection cases, the defendants will consolidate representation so that one firm represents most or all of the defendants. To do this, the defendants need extra time. They often ask for a 15-day extension to respond to the consumer’s complaint, the maximum permitted by law. Our office normally grants these requests both as a courtesy and for the practical benefits that come from having to deal with fewer defense attorneys simultaneously.
Keep in mind that this process doesn’t always go as it should. Sometimes, defendants fail to respond to a complaint at all, forcing the plaintiff’s attorney to pursue a default. Defaults take time but are disfavored. If the defendant shows up after beign served with the default, the judge is likely to set aside the default and give the the defendant an opportunity to answer the complaint, adding even more delay.
C. California Rules of Court, rule 3.724: Once the defendants have responded to the complaint, the parties must begin preparing for the first court hearing, typically a case management conference (CMC). Rule 3.724 lists many topics that the attorneys must discuss prior to the case manement conference, including whether settlement is possible.
However, before settlement discussion can occur, the defense attorneys need to complete their own case work-up, which sometimes takes weeks or even months.
Why It Matters: After an attorney files suit, months often pass before defense attorneys begin working up their file. Often, they aren’t ready to make any settlement offer until even later in your case. When the attorneys are discussing what needs to happen before they can begin negotiating, there often isn’t much to report to clients.
Conclusion: Once your case is filed, the clock is ticking. Settlement discussions typically follow, but it may still take multiple months before negoitations begin, leaving consumers who want to move on with their lives feelign frustrated.
OUR ADVICE
The early stages of litigation can be frustrating.
Often, it may seem like little is happening.
Sometimes that may be true, like when your attorneys are waiting for the defendants to respond to your lawsuit.
More often, your attorneys are working hard behind the scenes to put you in the best position possible.
When you have questions or concerns, reach out. Ask questions. Seek updates. Your attorney should be happy to provide both a recap of what has happened an a loose timeframe for what should happen next. If you’re concerned, you can probably schedule another update for a point shortly after whenever your attorney expects the next event to happen, ensuring that you stay informed.