There are two categories of cases:
- Criminal cases: a government agency seeks to punish someone for doing something that violates a law. Crimes are divided into:
- Felonies (for example, murder).
- Misdemeanors (for example, shop-lifting).
- Infractions (for example, a speeding ticket).
You will see cases named, "People of the State of California v. the name of the person accused of the crime."
- Civil cases, in which people or organizations sue each other.
You will see cases named things like, 'Smith v. Jones,’ or ‘ABC Bank v. XYZ Corporation.’ Another type of a civil case name is 'In the Guardianship Matter of [name of child], a minor.'
In California, most cases begin in a trial court in one of the 58 counties. In California, trial courts are called superior courts.
- The superior courts are responsible for receiving evidence and applying the law to the facts.
Decisions made in the superior courts can be reviewed at two higher levels:
- State appellate courts review decisions of trial courts to decide if the trial court made an error of law in the case.
- The State Supreme Court can review the decisions of appellate courts.
There are two other types of court systems in the United States: The Federal Courts and the Tribal Courts.
- The federal court system includes:
- U.S. Bankruptcy Courts
- U.S. District Courts
- U.S. Courts of Appeals
- U.S. Supreme Court
- The Tribal Courts are part of the Native American Reservation system.
Each court has permission to hear and decide only some cases. This permission is called "jurisdiction." There are three main types of jurisdiction.
A court can only hear certain case types. For example, not every court can grant a divorce. Most cases in the United States will either be brought in federal or state court.
- The US Federal Courts have jurisdiction over five basic kinds of cases. They hear: (1) cases in which the United States is a party; and (2) cases involving foreign officials. In civil matters, if more than $10,000 is involved, they may also hear (3) cases with parties from different states, and (4) cases involving the Constitution of the United States and federal laws. Federal courts also hear (5) cases involving patents, copyrights, or bankruptcies.
- Each of the 50 states has a court system which handles cases involving state law. These include criminal matters, probate, juvenile, traffic, family matters, real estate and business contracts, and personal injury claims.
A court may only hear cases in a certain geographic area.
- The California state court system has trial courts, called Superior Courts, in each county. They have jurisdiction over cases involving events that took place in the county, or in cases where defendants reside in or are served with a summons and complaint in that county.
- Tribal Courts are part of the Native American Reservation system. Tribal courts are courts of general jurisdiction which continue to have broad criminal jurisdiction.
A court may act only hear cases where it has jurisdiction over the parties involved.
- Courts in a state can exercise jurisdiction over a party located outside the state, if the party has enough contact with the state.
NOTE: For the court to hear a case, the court must have both subject matter jurisdiction and either personal or territorial jurisdiction.
When judges make decisions in court, they apply the law to the facts of the case. They consider many different laws.
International Laws: These can affect cases where, for example, the citizen of one country is living or traveling in another country.
Common Law: Common laws are rules that come from usage and custom. These customs generally come from court decisions that recognize and enforce such customs.
Constitutional Law: The constitution is the fundamental law of a nation or state. Read the U.S. Constitution.
Federal Law: Federal laws are laws enacted by the U.S. Congress. All of the federal laws in effect are published every six years in the United States Code.
Federal Regulations: Federal regulations are rules issued by governmental departments to carry out the intent of the law. Regulations can be important in deciding cases involving government activity. The Code of Federal Regulations (CFR) is published every year, and lists all regulations that are in effect.
The California State Constitution is the fundamental law of the State.
Statute: A statute is a single law passed by the legislature. Search for California statutes.
Codes: Codes are the collection of laws created by statutes. For example, there is a California Family Code, a California Vehicle Code, and a California Penal Code. Search the California Codes.
State Regulations: State regulations are rules issued by governmental departments to carry out the intent of state law. Regulations can have an important effect on the outcome of cases. Search the California Code of Regulations.
Local Ordinances: An ordinance is a law passed by a city council. Local ordinances may be very important in unlawful detainer cases, for example, as the town or city may have rent control laws that affect the case.
Case law: Case law is all of the previous decisions made by judges in similar cases. These form the principles that a court will consider when interpreting the law. This is called "precedent," and is central to legal analysis and rulings.
Precedent is granted more or less weight in the deliberations of a court according to a number of factors.
- Most important is whether the precedent is "on point." That is, does it deal with a situation similar to the situation in the case being considered?
- Second, when and where was the precedent decided? A recent decision in the same jurisdiction as the case being considered will be given a lot of weight.
- Next would be recent precedent in jurisdictions whose law is the same as local law.
- Least weight would be given to precedent that stems from different circumstances, older cases that have since been contradicted, or cases in jurisdictions that have dissimilar law.
Because case law is so important, there are companies whose publish books and online materials that keep track of court decisions. These books and materials can be found in public libraries and public law libraries.
"Statutes of limitations" are laws which say how long after certain events a lawsuit may be started based on those events.
The period of time a person or agency has to file a lawsuit varies according to the type of claim. See a timetable for "Statutes of limitations."
Normally, once the statute of limitations on a case "runs out," a lawsuit cannot be started in court.
For civil lawsuits, statues of limitations usually range between one and ten years.
- Sometimes this time period is counted from the date of the event itself - as in the date of a personal injury.
- Other times, this period is counted from the date of discovery of something, such as discovering a defect in a manufactured good.
For criminal lawsuits, statues of limitations have a very wide range depending on the crime.
Except for when a government agency is sued, there is almost always at least one year from the date of an event to file a lawsuit, no matter what type of claim it is.
Once a complaint is filed on time, a statute of limitations has nothing to do with how long it takes for a case to conclude. However, most states do have separate "diligent prosecution" statutes, which require those involved to move the case to trial within a certain time period or face dismissal.
In California, the Judicial Council has the responsibility to adopt rules of practice and procedure for all of the State’s courts. The State Legislature can pass laws that change the Judicial Council rules. The State’s Judicial Council can make rules that change local court rules.
Most Rules of Court will not apply to your case, but you should know the rules that do apply.
California Rules of Court
Title One. Rules Applicable to All Courts (Rules 1.1 - 1.150).
Title Two. Trial Court Rules (Rules 2.1 - 2.1100).
Title Three. Civil Rules (Rules 3.1 - 3.2120).
Title Four. Criminal Rules (Rules 4.1 - 4.601).
Title Five. Family and Juvenile Rules (Rules 5.1 - 5.830).
Title Six. [Reserved].
Title Seven. Probate Rules (Rules 7.1 - 7.1060).
Title Eight. Appellate Rules (Rules 8.1 - 8.1125).
Title Nine. Rules on Law Practice, Attorneys, and Judges (Rules 9.1 - 9.61).
Title Ten. Judicial Administration Rules (Rules 10.1 - 10.1030).
Local Rules of Court
Each local court also has its own set of rules. Find the local rules for your Superior Court.
Alternative Dispute Resolution (ADR) refers to processes that are "alternatives" to going to trial to resolve disputes. Many courts require people to go through one of these processes before they can go to trial.
Normally the ADR providers do not work for the court. The court has a list of providers. The people ordered to use ADR can chose the provider they want to use.
1. Court-Ordered Mediation
In mediation, both sides discuss their dispute with a neutral person called a mediator. The mediator’s role is to help explore possible solutions and create agreements everyone can accept.
The mediator has no power to force a solution. If mediation does not produce a settlement, the case continues on to trial.
2. Court-Ordered Arbitration
Arbitration is a kind of informal trial. In arbitration, both sides present testimony, documents and other exhibits to a neutral third party. This person is called an arbitrator. The arbitrator will make a decision about the dispute. The decision is called an "award."
If either side is not happy with the award, he or she can ask that the case be returned to the court system. However, if neither side asks for a trial, the award becomes the court’s judgment. It is enforceable like a court judgment.
3. Neutral Case Evaluation
Neutral case evaluation is a conference with an independent attorney. The attorney reviews information each side provides about the case. Usually the attorney has experience in the subject matter of the lawsuit. He or she will give an opinion about what might happen if the case went to trial. Evaluators can also help parties develop a plan for managing the case.
Many people use the information the evaluator gives them to reach an agreement.
4. Settlement Conferences
Settlement conferences are designed to encourage the resolution of cases before they go to trial. There are "settlement mentors" - experienced lawyers who look for ways to settle the case. These conferences are informal and can be scheduled by the court before or on the morning of trial.
Settlement conferences are not confidential: any information shared with the settlement mentor may be shared with the judge. The judge may also be involved in the settlement discussions.
5. Temporary Judge Trials
A temporary judge is an independent attorney chosen by the two sides in a lawsuit to be a judge for their case. These trials are conducted just like any other superior court trial. However, this kind of trial is not held in a courtroom, there is no jury, and it cannot last more than 5 days. The temporary judge’s decision can be appealed to the superior court.
"Parties" in a lawsuit are the people or groups bringing the case or being sued in the case.
- In criminal cases, one party is the government. The other party is the defendant.
- In general civil cases, the party who brings a lawsuit is called the plaintiff. The party being sued is called the defendant.
- In family law cases, the party who starts the lawsuit is called the petitioner. The other party is called the respondent.
Many other names for types of parties exist, depending on the court and its jurisdiction. Using special names for types of parties allows everyone to immediately understand the basic status of each party to the lawsuit.
- A party who represent his or herself in court cases is called "pro per" or "pro se."
"Legal entities" that can be parties:
- A "natural person" is a legal entity - and any number of people can be parties on either side of a lawsuit.
- A corporation is a legal entity.
- A business partnership, non-profit organization, group of citizens or others can be parties in a lawsuit.
- The government may be treated as a plaintiff or defendant in a civil case.
- In a class action lawsuit, thousands and even millions of persons can be parties. To be considered a "class," the plaintiffs must convince the court that many people have similar interests in the subject matter of the lawsuit.
A person must have the "legal capacity" to be a party to a lawsuit.
- A child under the age of 18 years has what is called a "legal disability" - limited rights under the law.
- People who are judged mentally incompetent because of illness, age, or infirmity also may have legal disability.
NOTE: Legal disability does not mean that people in these categories are removed from civil cases. The claims or defenses of such a person can be brought by a legal representative, such as a parent, guardian, trustee, or executor.
- Prisoners also have limited rights as parties to civil cases.
"Joinder" of additional parties in civil cases:
After the start of a lawsuit, the plaintiff may wish to add other parties to the lawsuit. Usually this is allowed, but it is not a legal right. It is up to the judge to decide if it makes sense to "join" additional parties.
"Impleader" in civil cases:
A defendant who feels that the plaintiff in a lawsuit should have sued someone else can ask to bring that other person into the case. Again, it is not a legal right. It is up to the judge to decide if it makes sense to "implead" an additional party in this case at this time.
"Intervention" in civil cases:
A person can volunteer to become a party in a lawsuit if he or she has an interest that will be affected by the outcome of the case, and he or she believes that this interest will not be adequately protected by the other parties. This process is called "intervention." A court decides whether to permit an intervening party by balancing the interests of the person seeking to intervene with the burden on the existing parties if the person is allowed to enter the lawsuit.
There are a number of jobs in a courtroom. Some people who work there are employees of the court itself, while some work for other agencies - like the Sheriff’s Department.
Here are some of the people you might see in a courtroom:
1. A judicial officer
Every courtroom will have a judicial officer - someone to make decisions about the problem that people came to court about. He or she will wear a black robe and sit at the front of the courtroom facing everyone else.
- A judge. Superior court judges are elected by voters of the county on a non-partisan ballot at a general election. (Vacancies are filled by appointment of the Governor.) The term of office for a trial judge in California is six years.
- A commissioner. A person chosen by the court and given the power to hear and make decisions in certain kinds of legal matters.
- A temporary judge. A lawyer who volunteers his or her time to hear and decide cases. Also called a "judge pro temp."
2. A clerk of the court
Every courtroom will have a clerk - a person chosen by the judge to help manage cases, keep court records, deal with financial matters, and give other administrative support.
3. A bailiff
Every courtroom will have a bailiff - a person that is in charge of security in the court. Bailiffs are picked by sheriffs or marshals.
4. A court reporter
Many courtrooms will have a court reporter - someone who writes down, word for word, what is said during the proceedings. They generally use a stenographic machine, shorthand, or a recording device. People can ask for a copy of this official record.
5. A court interpreter
Sometimes, a person who is fluent in English and the language of a court user is in the courtroom to help the non-English speaking person understand what is going on. In some cases (such as criminal cases) the interpreter is paid for by the court. Often, (in most civil cases) the interpreter is a friend of the court user.
6. One or more lawyers (also called attorneys, or counsel)
Often, people involved in a lawsuit will ask for the help of a person qualified to represent them in a court and to advise them on legal matters. Normally, the client will pay the lawyer for his or her services.
7. A district attorney (also called a public prosecutor)
In a criminal case, there will be a public official who has been appointed or elected to represent the state in a particular judicial district.
8. A public defender
In a criminal case, if the defendant can’t afford to hire a lawyer, the court may appoint a lawyer who is paid by the government to represent people free of charge. This lawyer is called a "public defender."
9. A lawyer for a public agency
Sometimes, there will be a lawyer from an agency representing one side or the other in court. For example, in child support cases involving the state’s Department of Child Support Services, a lawyer for the DCSS may be at court. In child dependency cases, a Court-Appointed Special Advocate (C.A.S.A.) may be in court to advocate on behalf of abused and neglected children.
Lawyers act as advocates and advisors.
- As advocates, they represent one of the parties by presenting evidence and arguing to support their client.
- As advisors, they counsel their clients concerning their legal rights and obligations. They suggest actions to take in business and personal matters.
To become a lawyer, you usually must go to law school and passing the bar exam in the state where they practice.
California has more than 150,000 lawyers. Some of these lawyers work for the government or legal aid organization. Most lawyers, however, are in private practice.
No matter where they work, all attorneys are trained to research laws and judicial decisions and apply the law to their client's situation. A lawyer will know:
- rules and procedures;
- when a witness is needed, and how he or she should be prepared for a trial;
- when an expert, consultant, or investigator is needed; and
- different strategies for presenting a case in court.
Generally, lawyers specialize in a particular area of the law. When working with a lawyer, it is important to know his or her specialty.
A jury is a group of citizens picked to decide a case. "Trial by jury" is one of the traditions of the American legal system.
A jury can be:
- grand: a body of citizens that determines whether probable cause exists that a crime has been committed.
- trial: an ordinary jury for the trial of a criminal or civil action.
- special: a jury ordered by the court, on the motion of either side, in cases that are unusually important or complicated.
Please Note: Many cases - especially civil cases - are decided by a judge sitting without a jury. For example, family law cases, probate, and small claims cases, cannot have juries. By law, only a judge is allowed to decide these cases.
If a civil case is eligible for a jury trial, it is generally the parties who decide whether to request a jury or not.
- Jury requests must usually be made in writing well in advance of the trial date - or even before the trial date is set. Deadlines are set in the state rules of civil procedure and in local court rules.
- People selected as jurors receive a small amount of money for each day they serve, and in civil cases the parties themselves pay this money. In most court systems, whoever requests a jury usually has to pay a deposit of one day’s jury fees before the trial.
A local official, called a "jury commissioner," is responsible for giving the court lists of qualified potential jurors. On the day a case goes to trial, a group of prospective jurors, selected at random, is asked to come to the courthouse for possible jury duty.
- A pool of prospective jurors is brought into the courtroom, and a smaller group of 12 jurors is chosen at random and seated in the jury box. Sometimes juries will have less than 12 jurors.
- Once the prospective jurors is seated in the jury box, the judge and the parties ask them questions to decide if each could be fair and impartial in this case.
- Either party may ask the judge to excuse a prospective juror if there is a good cause. If the judge allows the challenge, that juror will be replaced by another prospective juror who will then be questioned.
- When both parties have agreed upon a jury, the jurors are sworn in to try the case by the court clerk. Those not selected are excused.
Once the jurors are selected and sworn in, the judge will give them instructions that explain:
- What the law is that applies to this case.
- How they should evaluate the evidence that they will hear.
- The standard of proof that jurors should apply to the case.
- The judge will also instruct the jurors not to discuss the case with people outside of the court, or with each other until it is time for their deliberations.
During the trial itself, the jury’s job to decide what really happened in this case. Each juror’s role is to listen to the evidence carefully and not draw hasty conclusions. The jurors usually cannot question the parties or the witnesses.
At the end of the trial, the judge will again give the jury instructions. He or she will usually:
- Restate the issues in the case.
- Explain what relevant laws that should guide their deliberations.
- Remind them of the standard of proof that jurors should apply to the case.
After hearing the final arguments by each party and receiving instructions from the judge, the jury goes to the jury room to begin deliberating. Usually, the court provides the jury with written forms of all possible verdicts, so that when a decision is reached, the jury has only to choose the proper verdict form.
- In most instances, the verdict in a criminal case must be unanimous.
- In some instances, the verdict in a civil case does not have to be unanimous.
When the jury has reached a decision, it notifies the bailiff, who notifies the judge. All of the participants come back to the courtroom and the decision is announced.
- In a criminal case, the possible verdicts are "guilty" or "not guilty."
- In a civil case, the jury will either "find for the plaintiff" or "find for the defendant."
- If the jury finds for the plaintiff, it will also usually set out the amount of money the defendant should pay the plaintiff for damages.
- The jury will also make a decision on any counterclaims that may be part of the case.
After the decision is read and accepted by the court, the jury is dismissed and the trial is over.
All official court business must be in English.
In criminal cases, courts must provide interpreters for victims, defendants, and witnesses who do not understand English.
People who are deaf or hard of hearing must also be provided an interpreter for all criminal and civil court proceedings.
The courts must also provide interpreters for civil matters such as divorce involving a protective order, and child custody and visitation proceedings.
In other civil cases, the people involved may be responsible for getting their own interpreters. Some courts do provide interpreters for other civil case types. Check with your local court to find out when they provide interpreters.
Disputes in court are called "cases," "suits," or "actions."
To resolve a dispute, a court must do two things.
- It must "find the facts" of the dispute (decide what actually happened) and
- It must apply the appropriate legal principles to the facts.
One way of resolving a court case is by a trial where each side presents:
- Evidence to support his or her version of "the facts," and
- Legal arguments which suggest to the judge which legal principles to apply.
If a case goes to trial, generally the parties can ask to have a jury. If they do, then:
- The jury will "find the facts" of the dispute, and
- The judge will apply the appropriate legal principles to these facts.
However, most lawsuits are resolved before they reach trial.
- In a criminal case, for example, a prosecutor may offer a defendant the chance to avoid trial by admitting guilt to a lesser charge, thus escaping the more severe sentence that might be imposed if he or she were found guilty after being tried on the original charge. This is called "plea bargaining."
- In a civil case, the people involved may agree to settle the dispute by compromise, because each side fears that it may lose, or that what it may win at trial will not justify the expense of carrying the case that far. This is called "settlement" or "stipulation."
Since the goal of the whole system is to resolve disputes, this can be done at any time. A dispute can be settled before a suit is filed. Once a suit is filed, it can be settled before the trial begins, during the trial, while the jury is deliberating, or even after a verdict is handed down.
- A settlement doesn’t usually state that anyone was right or wrong in the case.
- A settlement does not have to solve the whole case. Part of a dispute can be settled, with the remaining issues left to be resolved by the judge or jury.
However, people have a right to have their dispute resolved by trial. Trials normally are described as having four stages:
- The "pleading" stage, during which formal documents are filed with the court that state the parties’ basic positions.
- The "discovery" stage, during which there is a formal process of exchanging information between the parties about the witnesses and evidence they’ll present at trial.
- The "trial" stage, during which each side gets ready for court to make or defend his or her case before either a judge alone, or a judge and jury.
- The "after trial" stage, which will be very different for the parties depending on whether they won or lost the case.
Court staff will provide information about the court system and try to help parties manage their cases, The work of establishing each side’s version of the facts and framing the legal issues of the case has to be done by the parties involved.
The first stage of the court case is called the "pleading" stage. During this part, each party files their first papers. In general, the plaintiff files a complaint or petition with the court. Then the defendant files an answer, response, or plea to the complaint. When parties file their first papers they "appear in the case."
The pleadings filed with the court state the parties’ basic positions. They include:
- Each party’s version of the facts of the case
- Each party’s understanding of the legal issues involved
- The decision each party would like the court to make to resolve the dispute.
Other pleadings may include a "reply" to new facts or issues raised in these first papers, a "counterclaim" by the defendant which states that the plaintiff injured him or her in some way, or a "demurrer," which claims that the complaint is not valid for some reason. Additional papers may be filed, with the goal of making it very clear to the judge exactly what facts and legal issues need to be decided to settle the case.
1. Lawsuits begin with the filing of some sort of complaint in the proper court.
In criminal cases, the government brings charges against the person alleged to have committed a crime.
- The representative of the government is called the "prosecutor." The person accused of having committed a crime is called the "defendant."
- The formal reading of a criminal complaint takes place during an "arraignment" hearing at court. This informs the defendant of the charges against him or her.
- In response to arraignment, the accused is expected to enter a plea. Acceptable pleas vary from jurisdiction to jurisdiction, but they generally include "guilty", or "not guilty."
- If the defendant pleads guilty an "evidentiary hearing" usually follows. During that hearing the judge will evaluate the offense, factors that could make punishment less harsh, and the defendant's character; and then pass sentence.
- If the defendant pleads not guilty, a date will be set for a "preliminary hearing" or trial.
In civil cases, a person or organization files a complaint or petition about another person or organization. The complaint includes a description of the filer's legal or factual claims about the case and what the filer wants from the court.
- The person or organization that files the complaint or petition is called the "plaintiff" or "petitioner." The other person is the "defendant." or "respondent."
- In response to the complaint or petition, the defendant or respondent is expected to file with the court either an "answer" or a "response."
NOTE: If the defendant or respondent fails to respond in time, the plaintiff or petitioner can apply for what is called a "default judgment." The plaintiff or petitioner can get what her or she wants because the defendant or respondent does not tell the court his or her side of the story.
In California, there are court forms for many types of complaints. These include the language needed to let the court know the basic facts of the case, the law under which the case is brought, and what the plaintiff wants the court to do. Ask the court’s clerk’s office if there are court forms you can use.
2. After a complaint is filed, the court will issue a "Summons."
After a complaint is filed with the Clerk’s Office, the court will issue a paper called a "summons." The purpose of the summons is to let the defendant know that he or she is being sued.
The court summons will include: the names of the plaintiff and defendant, the name, address and phone number of the plaintiff’s lawyer (if he or she has one), the case number (assigned by the Clerk’s Office), and the dates by which the next pleading (normally, the defendant’s answer) must be filed.
3. Service of Process for the Plaintiff/Petitioner.
It is the responsibility of the plaintiff to arrange for an adult who is not involved in the case to physically deliver the court summons and complaint to the defendant. This is called "service of process," and is a very important step in the process.
The court will require "proof of service." This is usually a form, filled out by the person who delivered the papers, saying when, how, and on whom the complaint and summons were served. The "proof of service" has to be filed with the court.
4. The person being sued has to file some sort of answer, response or plea with the court within the time limit written on the Summons.
The "answer" is a statement by the defendant or respondent that usually explains his or her side of the story. It says which statements by the complaining party the defendant does not agree with, and gives the facts and legal issues as the defendant understands them. It may also offer additional facts, or plead an excuse.
In California, there are court forms for many types of answers, or responses. These include the language needed to let the court know the basic facts of the case, the law under which the case is brought, and what the defendant or respondent wants the court to do. Ask the court’s clerk’s office if there are court forms you can use.
5. Service of Process for the Defendant/Respondent.
It is the responsibility of the defendant to arrange for an adult who is not involved in the case to deliver the answer, response or plea to the plaintiff. This is called "service of process," and is a very important step in the case.
The court will require "proof of service." This is usually a form, filled out by the person who delivered the papers, saying when, how, and on whom the answer or response were served. The "proof of service" has to be filed with the court.
6. Resolving the dispute during the pleading stage of the case.
Sometimes, when parties see the complaints and answers written down on paper, they realize that they might be able to come to a fair resolution of the dispute without going to trial. This would save them - and the court - a lot of time and money.
However, if the dispute cannot be settled during the pleading stage of the case, then the two sides have to begin to prepare for trial. This next stage in a lawsuit is called "discovery."
A motion is an oral or written request made to the court for a ruling, or an order, on a particular point. A motion can be made before, during, or after a trial. It’s a common court procedure for deciding issues that come up during the course of a lawsuit.
- Motions can be made by anyone named in a court case, on either side.
- Motions cannot be made by someone not named in the case. A witness, for instance, may not make a motion.
Some examples of motions are:
- Before a trial, you may want to ask that the trial itself be postponed from one date to another. To do this you could file a motion requesting that the schedule be changed.
- During a trial, if the judge rules that some part of a witness’s testimony is not relevant, you could make a motion asking that that inadmissible testimony be deleted from the court’s record.
- After a trial, you may want to have the amount of your court-ordered child support changed. To do this you would file a motion asking the judge to make the change.
Courts have a number of rules about how and when motions can be filed. For example, the California Rules of Court, Title 3 (Civil Rules), Division 11 (Law and Motion), Chapter 2 (Format of Motioned Papers), Rule 3.1112 states that:
A motion must:
- Identify the party or parties bringing the motion;
- Name the parties to whom it is addressed;
- Briefly state the basis for the motion and the relief sought; and
- If a pleading is challenged, state the specific portion challenged.
Before you make or respond to a motion, it would be best to check the court rules - state and local - to learn what is required. Rules may be different depending on the type of case it is. Rules may be different from court to court - or even courtroom to courtroom. Rules may be different depending on what you are asking the court to do.
Among the questions you will want to ask are:
- Does this motion have to be in writing?
- If yes, do you have to tell (give notice to) the other side that you are "bringing" the motion?
- Can you have the other side "served" with these documents by mail?
- Do you have to file a "proof of service" with the court?
- Do you need supporting documentation for your motion, such as a reference to the laws that entitles you to the order?
- What is the format the court wants the written motion, notice of motion, and supporting documentation to be in? (For example: Does the court want two holes punched in the top of each page? How should be pages be numbered? Need an index be provided?)
- If the motion is asking the court to do something simple, and the other side does not object, the judge will often decide whether to grant or deny the request without holding a hearing about the issue.
However, if the issue is complex, or if the other side objects to the motion, the judge may schedule a hearing to decide that point. A hearing gives the people involved a chance to answer questions from the judge and to argue for or against the motion.
NOTE: Before making a written motion - or responding to one - try informally to reach an agreement with the other party about the issue. If both sides can agree on their own, they can prepare a document called a "stipulation." Ask the court clerk and check the rules in your court for any special procedures for preparing and filing a stipulation. These will usually be much simpler than filing a motion.
The second stage of the court case is called the "discovery" stage. During this part, both sides collect and exchange information about the case. They also gather evidence to prove the facts they are presenting. They also research the law about the legal issues in the case.
In a lawsuit, each side has different understanding of what happened, and why. A judge or jury starts by knowing nothing about the case. During a trial, each side will tell their version of the story. They will give evidence to prove that their version is right. Some of this gathering of evidence can be done informally. Some of it may need to be done by following rules of legal procedure.
During this stage, two main questions should be asked:
- What evidence can I find to back up my claims?
- How can I best present my evidence to convince the judge or jury that I should win the case?
Informal investigation includes all information-gathering that a party can do on their own. This could include:
- Interviewing eyewitnesses.
- Gathering documents from public agencies, police officers, doctors, etc.
- Taking photographs of relevant objects or places.
- Finding out about the other party’s insurance coverage.
NOTE: Some of this information may not be allowed for use in a court trial. There are a lot of "rules of evidence." However, this information may be useful to negotiate a settlement before the trail.
Formal "discovery" is a legal process that can be used after a case has been filed. It includes a set of rules that allow one party to information held by the other party.
Some of the formal discovery tools include:
- Interrogatories, which are written questions directed to the other party that the other party must answer in writing and under oath.
- Depositions, which are oral in-person questions that the subject must answer under oath.
- Subpoenas, which are written orders issued by a court requiring a person to testify or produce certain physical evidence such as records.
- Asking that a document be submitted for examination to determine if it is genuine.
NOTE: There are rules about formal discovery. Depending on the type of case it is, there may be limits to the number of questions that each side can ask, or how long the discovery stage of the case may go continue. It is important to learn and follow these rules.
As information is gathered during this stage, it is not filed with the court. Rather, it must be shared with the other party in the lawsuit.
Evidence is information a party may present in court to prove their case.
Evidence can be in two main forms.
1. People: Witness Testimony.
- The party involved in the lawsuit.
- Other people who have direct and relevant information about the case.
- People who keep records.
2. Things: Exhibits.
- Other documents or things.
In either case, the judge will want to know: Why is this witness or exhibit helpful in deciding your case?
Rules of Evidence
There are rules of evidence that everyone must follow. These rules help ensure that the judge gets reliable, relevant and accurate evidence when making decisions about your case.
Among the most important of these rules are:
NOTE: Different case types may have their own rules. Read the California Evidence Code.
- Generally, people can only talk about what they know first hand. This means, only what they themselves saw, heard, felt, smelled, or tasted. There are some exceptions to this rule.
- The other party has the right to cross-examine anyone whose words are being considered.
- All testimony must be relevant.
Using People as Evidence: Witnesses
A witness is a person called to give testimony before the judge or jury. Usually, the witness must be present in court for the hearing or trial.
Using Things as Evidence: Exhibits
An exhibit is a document or an object used to prove a party's claim.
NOTE: There are standards for what evidence can be used in a court. Together, these standards are in the California Code of Evidence. Everyone has to follow these laws when he or she is getting and presenting evidence for court. Neither the judge nor the court staff can assist you in preparing or presenting your case.
If you started working on your case without an attorney, you may wish to seek the help of an attorney now. If, for financial reasons, you cannot hire a private attorney to handle your whole case, you can ask attorneys if they would be willing to help you for part of your case. Or, you may be eligible to get help from a legal aid office.
"Burden of proof" is the need for people to prove their claims in a lawsuit. Normally, people are in court because they see "the facts" differently. Each side will try to prove to the judge or jury that their understanding of the facts is correct.
Types of Burden
There are generally three types of burdens:
- A legal burden is an obligation a party has during the whole lawsuit. If the party can convince the judge or the jury that his or her proof is correct, the party will win the lawsuit.
- For example, in a criminal case, the prosecutor has the burden to prove all elements of the offense.
- An evidentiary burden is an obligation that shifts between parties over the course of the hearing or trial. For example, one party may submit evidence that creates a burden on the opposing party to present different evidence to counter it.
- A tactical burden is an obligation similar to an evidentiary burden. Presented with certain evidence, the Court can assume a fact from it unless the other party presents opposing evidence.
Standards of Proof
The standard of proof is the level of proof required in a lawsuit to convince the court that something is true. The degree of proof required depends on the type of case being tried.
The three broad levels of proof used in the courtroom are:
- Preponderance of evidence. Evidence that inclines a fair and impartial mind to one side of the issue rather than the other. This is the burden of proof in some civil trials.
- Clear and convincing evidence. Evidence indicating that the thing to be proved is highly probable or reasonably certain. This is a higher burden than preponderance of the evidence, but less than evidence beyond a reasonable doubt.
- Beyond a reasonable doubt. This is the standard used by a jury to determine whether a criminal defendant is guilty. In deciding whether guilt has been proved beyond a reasonable doubt, the jury must begin with assuming the defendant is innocent.
Note: There is also something called the "burden of production." This is the duty of each side in a lawsuit to introduce enough evidence to support their claims that the judge or jury can made a decision based on facts. If one side does not produce any evidence to support their case, they will usually lose the lawsuit.
While there are some differences between civil and criminal trials, the basic procedure is the same.
The judge presides in the courtroom. He or she is in charge.
- If a case is tried before a jury, the judge rules on points of law. The judge also gives instructions to the jury about the law that governs the case. The jury determines the faces based on the evidence presented.
- If there is no jury, the judge determines the facts and decides the verdict in the case.
The trial usually begins with opening statements by each side to tell the judge or jurors something about the case they will be hearing. The opening statements must only be about the facts that will be proved by the evidence.
- The party that brought the case to court goes first.
- The defendant goes second.
The heart of the trial is the presentation of evidence. Evidence may be people or things. The plaintiff goes first and the defendant goes second. At the end of the defendant’s case, the government or plaintiff can present new witnesses or exhibits to counter the evidence presented by the defendant.
- Direct evidence speaks for itself: eyewitness accounts, a confession, or a weapon.
- Circumstantial evidence suggests a fact by implication: the way the scene of the incident looks, for example.
NOTE: Strict rules govern the kinds of evidence that may be admitted into a trial, and the way it is presented.
Closing arguments by each side discuss the evidence and point out to the judge or jury the facts favorable to the side making the presentation.
If there is a jury, the judge will instruct it about the laws that should guide its deliberations. He or she will state the issues in the case, and discuss the standard of proof that the jurors should apply to the case.
The decision by the jury is called the "verdict." Possible verdicts in criminal cases are "guilty" or "not guilty." In a civil case, the jury will "find for the plaintiff" or "find for the defendant."
- If the jury finds the defendant "guilty" in a criminal case, the judge will set a date for sentencing. Before that time, a pre-sentence investigation will take place to help the judge determine the appropriate sentence from the range of possible sentences set out in the law.
- If the jury "finds for the plaintiff" in a civil case, it will also usually set out the amount of money the defendant should pay the plaintiff for damages, often after a separate hearing concerning damages.
- The jury will also make a decision on any counterclaims that may have been part of the case.
After the decision is read and accepted by the court, the jury is dismissed. The trial is over.
However, the decision of the jury does not take effect until the judge enters a judgment on the decision.
- In a criminal case, the judge generally has no authority to change the verdict. Usually he or she must accept it or reject it.
- In a civil suit, the judge may have the authority to increase or decrease the amount of damages awarded by the jury, or to make some other changes before entering the judgment.
The last stage of the court case is called the "judgment." It is the decision by the court that resolves the dispute brought before it, and determines the rights and obligations of the parties. Only the court can close a case. Either side can ask the court to close the case, but the court has the final word.
Court cases can end in many ways. Often they end very soon after the first papers were filed with the court, but complex cases can go on for several years. And if a child is involved, the case will stay open until the child turns 18 years old, gets married, goes into the military, or in some other way becomes "emancipated" and the court closes the case.
1. Cases can end by negotiation between the parties.
In California, a large percentage of cases are resolved by negotiation between the parties. This can happen at any time - before, during, or even after a court case.
- In a criminal case, for example, a prosecutor may offer a defendant the chance to avoid trial by admitting guilt to a lesser charge. This is called "plea bargaining." If the judge accepts the guilty plea, he or she will decide on the sentence. If the sentence is time in jail, the case is usually considered closed. If the sentence includes probation, the case will be closed when the terms of the probation have been filled.
- In a civil case, the people involved may agree to settle the dispute by compromise. This is called "stipulation." If the judge accepts their settlement, he or she will make their settlement a court order, and then usually the case will be closed.
2. Cases can end by dismissal.
A dismissal is a decision by a judge to end a case with no further hearings. A case may be dismissed at any time up to final judgment.
- A case may be dismissed on "procedural grounds" - one of the parties did not follow the court’s procedures (rules and regulations) properly.
- A case may be dismissed on "substantive grounds" - either the plaintiff could not show that he or she had been sufficiently wronged, or some part of the complaint was found to be untrue.
NOTE: It is the court that decides if the case may be re-filed or not.
- Dismissal without prejudice: A dismissal that does not stop the plaintiff from re-filing the lawsuit within the applicable time limits.
- Dismissal with prejudice: A dismissal - usually after a decision about the substantive grounds of a case - barring the plaintiff from filing a suit again on the same claim.
3. Cases can end by "default".
At the start of a civil court case, the defendant or respondent has to be properly "served" with a copy of the complaint or petition, and with a court summons. This lets the defendant know that he or she is being sued, and where and when to file an answer or response.
If the defendant does not respond, this failure is seen as an admission of the truth of the complaint or petition. For this reason, the plaintiff or petitioner can apply for what is called a "default judgment."
A default judgment is a court order granting a judgment against the defendant. Once a default judgment is filed and written into the official court records, it has the status of any other judgment. It is as if the plaintiff had conducted and won a full trial.
4. Cases can end after a trial.
If the case goes all of the way through the system to the trial stage, then either a judge or jury, depending on the case, will decide:
- The facts of the case
- The laws that apply
- The appropriate actions that need to be taken, and who should take them.
Once a court makes a judgment that resolves the dispute brought before it, and determines the rights and obligations of the parties, the case is usually considered closed.
You may want to hire a lawyer if you have a legal problem and do not know how to solve it. Lawyers have been specially trained in the law and our legal system, so the right lawyer can advise and assist you with your particular problem.
- If you are facing criminal charges or a lawsuit, for example, a lawyer can help you understand your rights, and the strengths and weaknesses of your case. A lawyer knows the rules and procedures for arguing the case in court. And a lawyer can make a big difference in whether or not your side of the story is successfully presented to a judge or jury.
- A lawyer can help you get a divorce, file for bankruptcy or draw up a will. Or, if you have been seriously injured or mistreated, a lawyer can help you file a lawsuit. Some lawyers handle a variety of legal problems; others specialize in certain areas of the law.
There are lots of ways to find a lawyer who is right for you.
- Recommendations. Ask your friends, co-workers and employers if they know any lawyers who have experience with the type of problem you have.
- Certified lawyer referral services. You could call your local county bar association, which will probably have a lawyer referral service.
- Advertisements. Most lawyers choose not to advertise, but some lawyers do. Sometimes lawyers join together and advertise their services as a group.
- Free legal aid agencies. If you can't afford a lawyer, you may be able to get free or low-cost legal help in non-criminal cases from a legal services program. This will depend on your income and the nature of your legal problem. Check the white pages of your phone book to see if such an organization is located near you.
Hiring a lawyer
Before you meet with any lawyers, do some "comparison shopping." Call several lawyers and ask questions that might help you make your decision. Write down everything that the lawyers have to say. Take time to think it over. Then make another appointment with the lawyer who seems right for you.
When you do meet with a lawyer, find out how long he or she expects your case to take, what steps will be involved, and what and how you will be charged. If you don't understand something, ask for a simpler explanation.
Ask yourself a few questions:
- Will you be comfortable working closely with the lawyer?
- Do you think the lawyer has the experience and skill to handle your case?
- Do you understand the lawyer's explanation of what your case involves?
- Does the fee seem reasonable?
In some cases, limited representation - hiring an attorney who will assist you at particular stages of your case - may work for you. However, not all attorneys will work solely on portions of a case. Or, if they do, they will not take on the responsibility for overseeing your case. The limitations of the representation are set by agreement.
You and your lawyer should agree on what you will pay the lawyer and what services will be provided. This way, both of you will know what to expect from each other.
Here are a few key questions:
- How will the lawyer bill for his or her time?
- Who else will be working on the case - associate lawyer, legal assistant, paralegal? How will their work be billed?
- What can be done to reduce fees and costs?
- What is the lawyer's estimate of the total charges?
- How will costs as opposed to fees be paid? (Costs include telephone calls, photocopying, secretarial help, court fees, travel expenses, and so on.)
Make sure you understand the agreement before you sign it. If you are not comfortable with any of the terms, don't sign it. And if you can't work out your disagreement, you may want to find a new lawyer.
To have a successful lawyer-client team, make sure that:
- You and your lawyer have the same goals.
- You understand and are comfortable with the lawyer's working style. Get a clear picture of the expected timetable in your case - when you can expect significant developments, and when and how often the lawyer intends to contact you.
- You provide the lawyer with the information and documents necessary to understand your case.
- You understand and agree with the lawyer's billing practices.
If you have questions or concerns about your legal matter, talk to the lawyer about them and listen to his or her responses. If you are still not clear about what is going on, many local bar associations have client relations programs that assist clients communication effectively with their lawyers.
"How to Screw Up Your Case in Five Easy Lessons"
By M. Sue Talia
Some judges loathe pro se litigants. Sometimes this is legitimate. Pro se litigants make the judge's job harder because they usually don't know the rules or the legal culture. This means the case frequently takes more of their time than one with two knowledgeable lawyers involved. Also, pro se litigants are sometimes harder to control. After all, if a judge is getting mad and ready to throw the book at a lawyer, the lawyer may think about the next 15 cases that he is going to have before the same judge and bite his tongue a bit. The pro se litigant, who hopes he will never have to see this judge again, may go on blundering into a buzz saw without knowing any better.
The other reason judges hate pro se litigants, however, is that there are certain patterns which individuals who represent themselves tend to repeat over and over and over again, most of which make cases much more difficult.
If you really want to mess up your case, try one of the following:
Perry Mason Wannabes
Say you have always wished you had gone to law school. Perhaps you were a Perry Mason or Divorce Court junkie when you were a kid, and the real reason you want to limit legal services and represent yourself is so that you can play lawyer. DON'T. This isn't about giving rein to your ego or fantasy life. If you do, you are certain to be unsuccessful in court and embarrassed for making a fool of yourself. Remember, you are a litigant who is representing himself. Don't try to be an attorney, or they will make mincemeat of you. Besides, after you have done it a few times, the joys of arguing in court are highly overrated.
Nothing will brand you more quickly as a difficult litigant and make the judge stop listening than if you want to use your day in court to cash in on all the "brown stamps" you have been collecting on your spouse through 15 years of marriage. If you are going to handle your own court appearances, find out in advance what is legally relevant and what is not, and limit yourself to the former. It may feel great to complain to an audience about the miserable failings of your spouse, but if you do, you will lose not only the audience but, most likely, your case.
Also, if you tick one judge off by your behavior, and then get transferred to another judge, don't assume there isn't carry over. The courthouse is a workplace much as any other. Once a case or litigant is labeled a "problem" that may well carry from court to court via the grapevine. You may well find the next judge even less sympathetic than the first.
One of the best uses you can make of your consulting attorney is as a sounding board, and let her coach you as to what is or is not useful for the judge to hear.
Also, do what the lawyers do. Watch the judge and look for signals. If the judge is losing patience with you or telling you to change the subject, change the subject. You will never score points with the judge by disregarding her instructions.
Expect the Courts to Make Up for Your Inexperience
Some courts will loosen the rules a little for pro se litigants (to the disgust of Opposing counsel, I might add). However, don't expect much. Judges are sworn to be evenhanded and fair to both sides. They may intervene if your opposing counsel is running you ragged with esoterica, but they won't (read: can't) do your work for you, and you should not expect it. Most of them will make a point of being absolutely impartial and won't cut you any slack whatsoever. Therefore, do your homework and expect that you will be held to the standard of any other litigant, represented or not.
Turn In Sloppy or Illegible Paperwork or Don't Serve Opposing Counsel With a Copy
This is guaranteed to make a judge nuts. I have already said that legal drafting is tricky. It needs to be clear and legible and the opposing side (whether represented or not) must be provided with a copy of whatever you file with the court. Rules vary from state to state and even county to county, but most of them require that documents be filed and served several days before any court appearance. Find out the rules, including the local variations, and adhere to them. Just because you are not a lawyer does not mean that a judge is not going to apply the rules and expect you to play by them. The worst of all possible results is that your paperwork is thrown out and you lose the case because you forgot to serve the other side or because it is so sloppy the judge can't read it.
This is particularly important when it comes to drafting orders. You have no idea how disastrous a badly-drafted order is when you later attempt to enforce it, and just because you think you know what it means doesn't guarantee that the judge will interpret it that way. It may also surprise you to learn that many experienced attorneys do lousy paperwork. Imagine how much harder it is to fill out the form properly if you have never seen it before.
Similarly, when a pro se litigant pulls out a shoebox full of receipts instead of properly prepared exhibits, any judge is going to inwardly groan. Be organized and do it right if you are going to do it at all.
Argue With the Judge
They HATE this. In some courts, it can get you held in contempt. Be courteous and professional. Plan on spending a lot of time hanging around the courthouse (without the kids, of course) if your case is being litigated. Educate yourself on the court procedures which apply to your case and, if possible, watch the judge who will be hearing it. You will learn a great deal about how he runs his courtroom and which arguments he responds to most favorably.
A particularly ineffective pro se trait is to raise your voice louder and louder as you repeat the arguments the judge has already rejected. Don't do it.
Finally, be realistic about what relief the court can and cannot grant. Many people are incredibly naive on this point and expect all sorts of things that the courts simply aren't equipped to deliver. Find out what is realistic and what is not and concentrate on the former. Above all, remember that if you are losing, you will never change the judge's opinion by arguing with him.
Copyright M. Sue Talia 1997. Excerpted from "A Client's Guide To Limited Legal Services". All Rights Reserved.
The purpose of legal research is to find "authority" for the solution to a legal problem. "Authority" can be a law, a regulation, or a previous case similar to yours.
Tip: Find a research guide before you start. Your local library will probably have research guides on a wide variety of topics. Also, each county has a law library with staff who are trained to help people with legal research.
Tip: Also before you start, find the rules on how to create and understand legal citations. The court will need to know where you got your information, and there is a whole set of rules about how to explain that.
Authority: Primary versus secondary
Primary authority is the set of rules of laws that are binding upon the courts, government, and individuals. Examples are statutes, regulations, court orders, and court decisions.
Secondary authority is commentary on the law that does not have binding effect but helps explain what the law is.
Tip: A common research tactic is to begin by using secondary sources to get an overview of your area of law. Then use the secondary authority footnotes to guide the researcher to statutes, regulations and cases.
Authority: Mandatory versus persuasive
- Mandatory authority is an authority that the court must follow. For a trial court, an example of mandatory authority would be a prior court decision by an appeals court that hears appeals from that trial court.
- Persuasive authority is one which the court may optionally follow. For example, a California state court doesn't have to follow a decision of a Nevada state court. However, a Nevada judge may have used a line of reasoning in deciding a case that a California judge might find helpful.
What you’re looking for:
Clearly you need to know the statutes and regulations that apply to your case. In addition, if there is a case from the past having facts and legal issues similar to this case, the outcome of the past case should control the outcome of the present case. This is referred to as precedent.
It is often quite difficult to determine what "the rule" is for any given legal issue. In many instances figuring out what the law is consists of comparing many different cases to the fact situation at hand. Rather than an absolute yes/no or true/false answer, your position may have to be considered on a strong/weak scale.
Steps in doing legal research:
There is no one right way to do legal research. However, there are practices that are efficient:
- First, try to figure out what the case is about from a legal point of view. What legal issues you will need to research?
- Next, find a research guide that will help you sort through the material available.
- Think creatively about search terms (think up synonyms - divorce? dissolution? legal separation?)
- Work out the jurisdiction in which this case would be tried, and check for any statutes of limitations that might apply.
- Locate, read, and update secondary sources to get a general understanding of your case.
- Locate read and update primary authority related to your case.
- Look up rules of procedure, ethics, and other materials if needed.
- Repeat the above steps, as needed, depending on your search results.
There are a large number of laws which set standards for what evidence can be used in a court. Together, these laws are called the California Code of Evidence. Everyone, even a person who represents him- or herself, has to follow these laws when he or she is getting and presenting evidence for court. Neither the judge nor the court staff can assist you in preparing or presenting your case.
These tips will help you to start thinking about how to present evidence at a hearing or trial.
What Does the Court Consider Evidence?
Evidence is information you may present in court to prove your case. It can be in two main forms:
1. People: witness testimony
- Other people who have direct and relevant information about the case
- People who keep records
2. Things: exhibits
- Records: police, medical, bills, appraisals, school records, etc.
- Other documents or things
In either case, the judge will want to know: Why is this witness or exhibit helpful in deciding your case?
Rules of Evidence
There are rules of evidence that everyone must follow. These rules help ensure that the judge gets reliable, relevant and accurate evidence to consider when making decisions about your case.
Among the most important of these rules are:
- Generally, people can only talk about what they know first hand - what they themselves saw, heard, felt, smelled, or tasted. (There are some exceptions to this rule.)
- The other party has the right to cross-examine anyone whose words (whether written or spoken) are being considered.
- All testimony must be relevant information.
NOTE: Different case types may have their own rules. For example, how long you have to do things or how many questions you can ask are ruled by case type. Read the California Evidence Code on-line.
Using People as Evidence: Witnesses
A witness is a person called by either side in a lawsuit to give testimony before the judge or jury. It could be you, other people who have direct and relevant information about the case, people who keep records, or experts who are qualified to give an opinion in an area of the case. Usually, the witness must be present in court for the hearing or trial.
1. How do I prepare my witnesses for court?
It is not cheating to prepare for court. Write out your questions.
- Practice the questions with your witness.
- Be prepared for cross-examination: talk with your witness about what questions the other side might ask him or her.
- Remind your witnesses that they must tell the truth. It is OK to say, "I don’t know" or "I don’t remember," if that is the truth.
Tip: You may want to write down ahead of time why you want to offer this witness or exhibit. Then, when the judge asks, you can answer even if you’re nervous.
2. What if a key witness says he or she won’t come to court?
You can ask the court to order a witness to appear. This is called a subpoena. You can get subpoenas from the court that order someone:
- To appear
- To appear and produce documents or things
- To appear for the taking of a deposition.
NOTE: Some witnesses may want to appear but need to be served with a subpoena in order to get the time off of their work to go to court.
Using Things as Evidence: Exhibits
An exhibit is a document or an object used by either side in a lawsuit to prove his or her claim. Exhibits could be financial statements, medical records, counselor’s reports, photographs, tools, equipment or other things.
1. How do I prepare my exhibit for court?
Once you have selected what you want to use:
- Make two copies of each exhibit - one for the other party, and the other for you. (The court will keep the original.)
- Ask a court clerk how to mark your exhibits.
Some courts will want you to mark each piece of evidence with an exhibit identifier. (For example, attach a sticker labeled "Exhibit 1," "Exhibit 2", etc. - OR "Exhibit A," "B," etc. The clerk can tell you which to use.)
Some courts will mark the exhibits in court.Some documents have confidential information, such as bank account and social security numbers. You may ask the court to black out this information and to keep sensitive documents confidential
2. How do I introduce an exhibit in court?
To show the court one of your exhibits:
- First, show the exhibit to the other party (or the other party’s attorney),
- Next, either you or your witness must testify about the exhibit to show that the evidence is relevant to your case and is authentic (not made up).This is called "laying the foundation."
- Ask the court to admit the exhibit into evidence.
The other party or attorney may object to the exhibit for some reason. Try to answer these objections as best you can. Finally, the judge will decide whether to allow the exhibit or not.
How to Get Your Evidence
You may collect evidence by "discovery" or by "subpoena."
Discovery is pre-trial investigation. It allows you to get either evidence itself, or information that will lead to getting the evidence you need. There are rules for how much time you have to do things, and how many questions you can ask in a certain way.
Some common Discovery methods are:
A deposition is written or oral testimony given under oath in front of a court reporter. These take place outside of court and allow the parties to get a record of a person’s testimony, or to get testimony from a witness who lives far away. The person who sets up the deposition pays the court reporter’s fees.
Interrogatories are written questions sent by one side in a lawsuit to an opposing side. The side that receives the interrogatories must answer them in writing under oath, or give a legal basis for not answering them.
Request for Admission:
In a request for admission, one party formally and in writing asks the opposing party to admit the truth of certain facts relevant to a case.
Request for Production of Things:
One party may ask the other party for specific documents or things. The asking party may object to, copy or inspect these.
Subpoena Duces Tecum:
A subpoena duces tecum is an official court order to bring documents to a specific place at a specific time.
A subpoena is a court order telling a person to go to court at a specific time. They are commonly used to tell witnesses to come to court to testify in a trial. The court has forms you can use to ask for these.
- Be sure your forms are clear and easy to read. Use blue or black ink.
- On most forms you need to write your legal name, current address, and daytime phone number in the box at the top of the first page. If you don't want to write your home address, use another address where you can get mail. The court will send your court papers to this address.
- If you don't have a lawyer, write "self represented" on the "Attorney for" line on all court forms.
- Fill out your forms completely and accurately. If something doesn't apply to you, write "N/A." This means "not applicable."
- Sign each form where your signature is requested. Use blue or black ink only.
- Fill out your forms one section at a time. If you have questions about a section, leave it blank until you can get your questions answered.
- If you need help filling out your forms, you can ask a lawyer, a legal aid clinic, or go to a law library and ask the librarian for books that can help you.
- Make copies of all your forms. If a form has writing on both sides, use 2 separate pages to copy the 2 sides of the form.
- Keep a clean copy of all of your court papers in a folder in a safe place.
- Bring your folder with you every time you go to the clerk's office, a court hearing, or the facilitator's office.
The lawyer will charge you for the costs of your case as well as the fees. You will be responsible for paying these costs even if your case is not successful. Costs can add up quickly. It is a good idea to ask the lawyer for a written estimate of what the costs will be. You can tell your lawyer that costs over a certain amount have to be approved by you in advance.
Here are some typical costs:
- Certified shorthand reporters' charges for taking down testimony at depositions and trials and for providing written transcripts of that testimony.
- Copying and facsimile (fax) costs. These are usually charged on a per page basis. Lawyers also may charge for secretarial time spent on these tasks and telephone charges.
- Experts and consultants' charges. These costs generally relate to any time spent evaluating the case and testifying in court.
- Filing fees, which are required by courts before they will accept legal papers.
- Investigators' bills. Investigators may help gather facts related to the case. They usually charge by the hour and may bill for expenses such as mileage, meals and lodging as well.
- Jury fees and mileage costs. These are paid to jurors in civil cases in amounts set by law. The party requesting the jury must pay these expenses in advance.
- Postage, courier and messenger costs for mailing, shipping or personally delivering documents to you or others involved in your case.
- Service of process fees charged by individuals who locate parties and witnesses and deliver legal papers to them.
- Staff time for secretarial services, including overtime, word-processing time, etc.
- Telephone bills for long distance calls.
- Travel expenses for the lawyer when he or she travels on the client's behalf. These charges can include gasoline, mileage, parking fees, meals, airfare and lodging.
- Witness fees and mileage charges. The individuals who testify at depositions and trials receive fees in amounts set by law. You also may need to pay travel expenses if a witness must be brought in from far away.
Your lawyer may charge you for other costs as well. Make sure you understand all of the costs for which you will be responsible. Ask the lawyer if you will have to pay such costs directly or if you will be reimbursing the lawyer for such costs paid on your behalf.
The case types below are presented as they are used in the Contra Costa County Superior Court. You should check with your local court to see if they organize cases differently.
An appeal is a request to a higher court to review a judgment or verdict made in a lower court.
- Some cases types may be appealed in the Main Courthouse in Contra Costa County:
- small claims.
- limited civil cases.
- landlord/tenant issues.
- Other cases types are appealed at the First District Court of Appeals in San Francisco:
- unlimited civil.
- family law.
A civil case is a lawsuit brought to enforce, redress, or protect private rights. Civil lawsuits include:
- Unlimited Civil (seeking damages more than $25,000).
- Limited Civil (seeking damages $25,000 or less).
- Small Claims (seeking damages less than $7,500).
- Family Law.
- Unlawful Detainer (landlord/tenant disputes).
A criminal case is a lawsuit brought by the government against a person the government claims has broken penal law.
Criminal cases are separated into three main categories:
Juvenile cases are those involving young people under the age of 18 years. These are separated into two main categories -
- Juvenile Delinquency, for young people charged with breaking a penal law.
- Juvenile Dependency, for young people who have been removed from the home and/or care of their parents or guardians.
Traffic cases are those in which citations have been issued for a violation of traffic laws.
If you have a case open in Contra Costa County and would like to know its status, please see Tell Me About My Court Case.
A restraining order is a court order that can protect you from being abused, threatened, stalked or harassed.
How much does it cost?
There are no court fees to get a restraining order.
What kind of restraining orders are there?
There are 5 kinds of restraining orders people commonly ask for.
- Emergency Protective Orders:
If you believe you are in danger, any police officer can help you with an emergency protective order. These can be used to protect you at home and at work. They last for up to 7 days. If you want protection for longer then 7 days, you must ask the Court for another kind of restraining order.
- Domestic Violence Restraining Orders:
Domestic violence means there has been abuse in a family, a home, or between people who have a close relationship. This abuse can be physical, sexual, or verbal.
- Civil Harassment Restraining Orders:
Harassment is violence, a threat of violence, or actions that really scare, annoy or harass you, done on purpose and for no good reason. A civil harassment order can be used to protect you from roommates, neighbors or co-workers.
- Elder or Dependent Adult Abuse Restraining Orders:
These orders are for people who are disabled and/or 65 years old or older and are a victim of physical or financial abuse, neglect, abandonment or treatment that has physically or mentally hurt them.
- Workplace Violence Restraining Orders:
These are for employers who want a restraining order to protect an employee who has suffered violence, or a real threat of violence, at the workplace.
IF YOU NEED PROTECTION RIGHT NOW, you should call 911, or
- a local law enforcement agency, or
- domestic violence shelter, or
- the National Domestic Violence Hotline at 1-800-799-7233 or 1-800-799-SAFE.
When the police come, you can ask for an Emergency Protective Order.
NOTE: If you also have a criminal case, anything you say or write in a family law case can be used against you. Consult with an attorney.
- Dress neatly and respectfully.
- Take all of the documents that will be needed to show to the judge.
- Be on time. Allow extra time for traffic or other possible delays. (If you are delayed or unable to attend the hearing due to a car breakdown, sudden illness, or other emergency, contact the department clerk on or before your hearing time.)
- Turn off your cell phone and/or pager when you enter the courtroom.
- When your case is called, walk to the table or podium in front of the judge and stand facing the judge.
- Be prepared to state your name and your relationship to the case.
- Speak clearly and loud enough that the judge can hear you. Speak only when it is your turn.
- When you speak to the judge, act respectfully and call him or her "your honor." Be sure never to interrupt the judge.
- Answer all of the judge’s questions and stop talking immediately if the judge interrupts you.
- If you don’t understand something, say that you don’t understand. Someone will try to explain it for you.