2. What Every New Attorney Needs to Know About Pretrial Practice The Life of a Civil Lawsuit From Pleadings to Discovery
Part I: Pleadings Professor Steven P. Byrne ’77 Part II: Discovery & Discovery Motions Professor Don G. Forgey ‘77

3. Professor Steven P. Byrne ‘77 Byrne and Associates
Pleadings
Professor Steven P. Byrne ‘77
Byrne and Associates

4. Civil Litigation in State Court
Planning, Drafting and Filing Complaints and Responsive Pleadings
Plaintiff’s Case –
Development of a Theme of the Case – What is your case about?
Consider available causes of action (see Appendix 1)
What facts are favorable to each cause of action?
What facts are unfavorable?
Is your theory supported by the law?
Complete your legal research prior to preparing pleadings.
Review authority that supports your opponent’s claim.
Consider Jury instructions as a guide.
Ethical/Professional responsibility.

5. 3) Evidence in support of your case.
Identify witnesses as soon as you can.
Identify documents and other tangible evidence available.
Identify evidentiary issues which could be problematic.
(e.g. inadmissable or illegally obtained evidence)
4) Anticipate possible defenses to your client’s claim
Evidence in support of each defense
Can you do or say anything to defeat the defense?
5) Government Claim
Action against public entity. Determine whether the claim is one for which a written claim must be presented to a public entity before maintaining action [Gov. Code , 945.4].

6. 6) Proper Court
Jurisdiction
Limited Jurisdiction Court.
Unlimited Jurisdiction.
Venue - Proper court (location) in which to file.
Court realignment in Los Angeles County
All Personal injury cases are filed in Central or
Unlawful Detainer (evictions) in hub courts
Probate in Central
Who is your audience?
Jury trial or a court trial.
Do you need to humanize your client or dehumanize your opponent (Is your client an individual or a corporation - why this may matter)

7. Preparation of the Complaint
Contents
a. Capacity of plaintiff [CCP ].
b. Residence (generally optional)
[CC , ; CCP ].
Name, capacity, and residence of defendants
d. Fictitious name allegations, if appropriate [see CCP 474].
e. Agency allegations, if appropriate.
Other facts showing proper venue, if required
[CCP 396a].
g. Facts constituting cause of action [CCP (a)].

8. h. Prayer for relief [CCP 425.10(b)].
i. Joinder of other causes of action of plaintiff or of co-plaintiffs with cause of action against defendant(s) [CCP (a)].
Joinder of parties.
Permissive.
Plaintiffs. [CCP 378(a)].
Defendants.[CCP 379(a)].
Compulsory.
Persons required as parties [CCP 389(a)].
Reluctant co-plaintiff [CCP 382].

9. Drafting the Complaint.
Mandatory format requirements [Cal. Rules of Ct. 201]
Traditional (non-form pleading)
Judicial Council Form Pleadings
Attachments - Causes of Action
Contract
Personal Injury, Property Damage, Wrongful Death
Unlawful Detainer

10. 3. Signing. The Complaint must be signed by the attorney of record
3. Signing. The Complaint must be signed by the attorney of record. [CCP 128.7]
4. Verification. Not always required. By affidavit or declaration if verification is required or desired [CCP 2009, ].
Execution of verification [CCP 446]:
Individual plaintiff
Authorized officer if the plaintiff is not an individual.
By Counsel if plaintiff is not in the county in which counsel has offices or is unable to verify it or when facts are within attorney's knowledge.

11. 5. Additional documents required to be filed with the Complaint
Summons - Judicial Council form is required. [Gov Code 68511; Cal. Rules of Ct 982]. Original for issuance by Court Clerk and copies to conform
Civil Case Cover Sheet
Addendum to Civil Case Cover Sheet
Alternative Dispute Resolution (ADR) forms
Certificate of merit [claim for professional negligence of architect, engineer, or land surveyor [CCP (a)].
Notice of Related Cases, if any. [Ca. Rules of Ct., Rule 804(a)]
Cover sheets or other papers required by local court rule.

12. How many copies should you make?
6. Copies of Pleadings.
How many copies should you make?
Original for filing.
Copy for service on each defendant.
Copy for office file.
Copy for client
Additional copies as desired.

13. 7. Filing Complaint
Most lawyers use an Attorney Service.
Select the court with proper venue and subject matter jurisdiction. See Section 1A(6) above.
Deliver Summons, Complaint and related papers to court clerk filing window Fax filing, Electronic Filing
Pay filing fee [Gov. Code , ]

14. Service on Defendants–
Most lawyers use a Registered process server with an attorney service or the County Sheriff.
Have a conformed copy of the summons served on each defendant, together with a copy of the complaint and all other documents [CCP ].
Proof of Service. The person who served the pleadings must prepare and file a separate declaration of service for each defendant [CCP et seq.]
A Party to the action may not serve the pleadings.

15. Default –
If a defendant fails to respond in a timely manner.
Request for entry of default. [CCP 585].
Declarations in support of entry of judgment [CCP 585].

16. Defendant’s Case –
Development of a theme to counter Plaintiff’s theme.
Review the claims asserted
What facts support each cause of action?
What facts are unfavorable?
Is your theory (i.e. defense) supported by the law?
Complete your legal research prior to preparing pleadings
Review authority that supports your opponent's claim
Consult Jury instructions as a guide

17. Evidence in support of your case
Identify witnesses as soon as you can
Identify documents and other tangible evidence available
Identify evidentiary issues which could be problematic
Evaluate the possible defenses your client has to the claim
Evidence in support of each defense
Can the Plaintiff do or say anything to defeat that defense

18. 5) Government Claim
Action against public entity. Determine
whether the claim is one for which a
written claim must be presented to a
public entity before maintaining action
[Gov. Code , 945.4].
Improper Court
Jurisdiction
Limited Jurisdiction Court
Unlimited Jurisdiction
Venue - inconvenient forum [CCP 396, 397]

19. 7) Delay in prosecution
Statutes of Limitations
Failure to serve in a timely manner
[CCP 583 et sec]
8) Who is your audience?
Jury trial or a court trial.
Do you need to humanize your client or dehumanize your opponent (is your client an individual or a corporation - why this may matter)

20. Defendant’s Initial Pleadings
Answer
Traditional format or Judicial Council form pleading
Judicial Council
Contract
Personal Injury, Property Damage, Wrongful Death
Unlawful Detainer
Affirmative Defenses (Appendix 2)
Prayer for Relief

21. Demurrer - Defect in Complaint
Lack of subject matter jurisdiction
[CCP (a)]
Failure to state sufficient facts
[CCP (e)]
Uncertain pleading [CCP (f)]
Other grounds
Motion to Strike [CCP ]

22. Motion to transfer to proper court [CCP 396b]
Petition to Compel Arbitration [CCP ]
Cross-Complaint (State) or Counter Claim (Fed)
Compulsory [CCP (a)]
Permissive
Third Party Claims (Indemnification, Contribution)

23. Class Exercise
You are a new Associate in a large law firm that has a substantial insurance defense practice. You have received a Memorandum from a supervising attorney to consider the materials available and prepare an initial response to a Complaint.
Consider and discuss the legal issues, as well as the political and business ramifications of your response.