Where Do I Start: The Legal Process

San jose Employment lawyerContrary to what you may believe, the legal process when pursuing a California labor lawsuit should not be complicated. We strive to make it as painless as possible. Granted, there may be “twists and turns” through the process, however, once you know the basic legal process, we will help you through the rest.

Here is a general summary that can give you a little more confidence in approaching the California legal process and the workings of the court system, though it is not all encompassing.

6 Steps to Collect

1. Starting the Case: Typically, once we accept your case a demand is sent to your employer clearly outlining their wrongdoing and liability, and proposing a settlement amount to attempt to resolve the case without going to court. Generally it is best for everyone to settle and avoid the time and expense of trial. It may take a few weeks before a response is received, usually because the employer consults their own legal counsel and assesses our demand. Demands can also open up dialogue for a future settlement, but in many instances it does not result in an immediate settlement. Because there is a statute of limitations we may use a “tolling agreement.” This helps to ensure you will not lose any portion of your claim while negotiations are going on. Either party may lift the tolling agreement at any time with proper notice, if settlement discussions do not appear to be making any progress and proceed to filing a complaint with the court.

2. Litigation: If the initial negotiation efforts prove unsuccessful, a complaint is prepared listing the various causes of actions that will be pursued against your Employer. For example, overtime pay, meals and breaks, failure to accurately itemize pay stubs, to name a few. The complaint is filed with the Court and served on the opposing party or their legal counsel. The opposing party then has 30 days to respond to the complaint. A response is in a legal format that must be prepared, filed with the court, and served to the Defendant (typically your employer).

3. Discovery: The next part of the process involves both sides serving discovery on each other. In this process, documents to prove each sides case are requested to be produced and questions are posed to be answered pertaining to the subject matter of the case. We will prepare the responses after conferring with you and send the answers to the opposing counsel. The parties may continue to conduct discovery until the discovery cut-off date, imposed by the California Court.

4. Depositions: Depositions are a type of discovery, called oral discovery. A deposition is an informal “question and answer” session usually conducted in one of the attorney’s office or other office outside the court whereby the party being deposed is asked questions under oath about the case. This testimony will act just like testimony given in a courtroom. This step of the discovery process is critical because the transcript may be used in law and motion matters afterward. A court reporter is present, recording everything that is being said during the deposition. Depositions can last one or more days and the other side may request that the deposed party also produce documents for the deposition. The party being deposed can have their lawyer present and any party to the action i.e. a representative of the California employer may also be present. All parties will have a right to view the deposition transcript.

5. Mandatory settlement conferences and mediations: This is known as a means of “Alternative Dispute Resolution.” This means the parties will try to resolve their case outside of Court. The Court will allow the parties to discuss whether they want to engage in Alternative Dispute Resolution, typically by way of Mediation. Mediation can be voluntary or involuntary, depending on how a California judge decides to handle the case. All mediations are conducted by retired judges or seasoned attorneys who specialize in the subject matter of your case. Unlike Mediation, a Mandatory Settlement Conference is a court-ordered last attempt to settle the case before the trial date, which is typically a week or so after the Mandatory Settlement Conference. It is important to understand that in both mediation and at a Mandatory Settlement Conference, risks of both sides are assessed and neither party may be completely happy with the outcome. However, the benefit of settling outside of trial means both parties secure the certainty of resolution.

6. Trial: This is the final stage of litigation if the parties are unable to settle the case before trial. Trial may be with or without a jury, which is known as a bench trial. The length of the trial will depend on the complexity of the issues and the number of witnesses each party calls. Once the trial is complete, the judge or the jury will provide a verdict. The losing party may file an appeal in the California Court of Appeals.


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