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Navigating the Legal Landscape of Business Litigation

LS Carlson Law February 2nd, 2024

At LS Carlson Law, we understand that the idea of litigation can be as daunting as it is common in conversations among business professionals. It's a term that's thrown around in times of conflict, but what does it truly entail? In our recent podcast, our founder and host, Attorney Luke Carlson, Esq., and partner, Attorney Kirk Pearson, Esq., delve into this intricate topic.

The journey into litigation is often spurred by a knee-jerk reaction to an event that has caused significant emotional distress. It's a natural human response to want to take immediate action when we feel wronged, especially when our personal investments like our homes, our children, or our businesses are at stake. However, as your legal counsel, we aim to steer you towards a path that is less emotional and more objective. This clinical approach allows for a clearer analysis of whether litigation is the appropriate avenue.

Is Litigation the Right Move?

Initiating a lawsuit should never be the opening move without proper analysis. A lawyer begins by asking the fundamental questions: Why do you want to sue? What harm has been suffered? Are there damages? But beyond the legal feasibility, there's an equally crucial economic analysis. Litigation is expensive and time-consuming, and one must consider whether the potential outcome justifies the resources invested.

Mediation: The Pragmatic First Step

Before rushing to the courthouse steps, it's worth exploring whether the dispute can be resolved through less confrontational and more cost-effective means, such as mediation. This is particularly true in cases involving homeowner associations or real estate transactions, where pre-lawsuit mediation might even be a requirement. Skipping this step could have repercussions later on, potentially impacting the recovery of attorney's fees.

Drafting and Filing a Complaint: The Formal Beginning

Assuming all preliminary considerations align, the process officially starts with the preparation and filing of a complaint. This document lays out the general facts and causes of action, setting the legal stage. However, it's not a comprehensive exposition of evidence, but rather a structured notice to the opposing parties.

Service of Process: The Challenge of Delivery

Once filed, the complaint must be served on the defendants, which can be straightforward or complex if the parties are elusive. If standard service methods fail, alternatives like service by publication or through the Secretary of State may be employed.

Responses and Early Tactics

Defendants have various options for responding to a complaint, from answering the allegations to challenging the legal sufficiency through demurrers or motions to strike. These early motions can be strategic moves to narrow the claims or pressure a settlement.

Discovery: The Heart of Litigation

After the initial pleadings are settled, discovery begins. This is where the substantive evidence is gathered through interrogatories, document requests, and depositions. Yet, this phase can also become contentious, leading to motions to compel and court interventions if one party refuses to comply with discovery obligations.

The Court's Role in Discovery Disputes

Courts generally dislike getting involved in discovery disputes and encourage parties to resolve these issues among themselves. However, when cooperation fails, judicial intervention becomes necessary to ensure a fair exchange of information.

Conclusion

Litigation is a complex and strategic process that involves numerous steps and considerations. At LS Carlson Law, we guide our clients through these stages with a pragmatic and objective approach, always mindful of the emotional toll and economic impact. Our role is to provide clarity, manage expectations, and represent our clients' interests vigorously while navigating the path toward resolution.

Remember, whether you're contemplating a lawsuit or find yourself on the receiving end of one, seeking counsel is a prudent first step. If you need assistance in a business or real estate dispute, don't hesitate to reach out to us for a consultation.

Video Transcript

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

Well, let's just jump right into it. Perfect. Kirk, thank you for being on the show. Glad to be here. So it's an interesting topic because I think for lawyers, this is just common ground. They understand this very well, but you start looking at the market, business, men and women, they talk about this topic quite frequently or they discuss it, but ultimately I don't always think that they understand what they're getting themselves into, right? They say, hey, I want to sue this person, but what does that really mean?

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

Yeah, or, you know, we'll have potential clients come to us and say, hey, look, I've been sued. You know, what do we do? They're a small business owner. They don't really know what the steps are. They don't really know what to expect. They just know they need to do something. They need to have counsel representing them.

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

Right. They're mad. They want to take action. Knee jerk. Let's sue them.

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

Yeah. And I think part of our role is to kind of inform them up front, walk them through the process, which, you know, we'll do a little bit today, but then also kind of help them understand that while they may be mad, they need to kind of approach things from a less emotional standpoint. And that can sometimes be hard because these lawsuits can deal with things that are very personal for them, their house, their kids, their business that they've, you know, poured a lot of blood, sweat, and tears into. And so it can be very emotional, but part of our job, again, as counsel, is to help them be a little bit more objective, a little less emotional in how they're approaching things.

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

It's almost, it's clinical, right? You almost have that clinical approach at least initially looking at the problem figuring out What is the best way to get to that resolution? So let's let's start with just the statement. I want to file a lawsuit I want to sue now in a lawyer's mind. That's not where you start on the analysis I think the analysis starts is are you even able to file a lawsuit? Is that the first step?

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

Is that the opening move? Yeah, and normally the way I'll approach it with clients or potential clients again is, you know, what's going on? Why do you want to sue? What's the issue? And really what it comes down to a lot of times is, you know, how bad is the conduct and how bad are the damages? Because sometimes people will be treated badly and they may have claims that they could bring, but they don't ultimately have any damages. There really hasn't been anything that has happened to them.

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

Right. So it almost becomes twofold, right? I believe it's a legal analysis, right? Can they sue, can they file a suit, or do they have to start with mediation? Is there a prerequisite before they can actually file? But there's also that economic analysis, right? Does it make economic sense to initiate litigation?

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

Yeah, and look, that's part and parcel to the emotional component of this, is having them focus on the cost too. Because what I like to tell people all the time is, lawsuits typically take way longer than you think they will, they cost a lot more money than you think they will, regardless of which side you're on. Now, there are certain types of law, like personal injury, where maybe you get a contingency attorney, so it's not really costing you anything out of pocket at first. We don't do a lot of that at our firm, but there's definitely a cost component to pursuing a lawsuit, and that's something you got to consider, as well as the time and stress that's involved. Because while hiring an attorney, you can kind of put a lot of that on the attorney, and that's part of what we deal with is It's helping them understand the steps, helping provide recommendations and strategy so that can kind of defray some of the anger or frustration that they feel. That never totally goes away while the lawsuit's pending, just because it's a stressful process.

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

Well, I think you hit a good point. When you hire a lawyer, largely you're taking that stress off of the individual, and now it goes onto the law firm or the attorney, right? that there's a shifting of that burden, which I think to a large extent, a lot of clients after they hire a lawyer, they feel better because they're outsourcing that problem.

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

Yeah, absolutely. I mean, look, anybody that's contemplating suing someone or has been sued, you need to get counsel or you need to talk to somebody. It's tough to do it by yourself. Even if you're trying to save money, oftentimes you're going to end up paying a cost at some point, even if you're trying to represent yourself or you're getting a free attorney that may be a buddy that doesn't really know what they're doing because it's not their practice area. We see that a lot, yeah. Yeah, 100%, where it's a civil suit that is related to a real estate transaction or your HOA, for example. And so you have a buddy that does family law and she comes in and is trying to guide you through the process, but she doesn't really know real estate or homeowner association law. You know, there's things that you need to be aware of And so you really need to hire an attorney that's kind of got a specialty in that particular area.

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

No, I agree. It's one of those. You get what you pay for.

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

Yeah, certainly. And if you try to represent yourself, you know, it's the old adage that, you know, somebody who's representing themselves has a fool for a client. And that's true whether you're an attorney or not. It's always better to have some outside person that can give you the outside perspective. Oh, without question.

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

So okay, let's get into it then. So this notion of filing a lawsuit, let's sort of break it down mechanically. So let's say you're at the point now where it's viable from a legal perspective, it's viable from an economic perspective, it makes sense, those are aligning. From a lawyer's perspective, what are the steps? What are you looking at from start to finish? Let's break that down. I think that's important.

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

Yeah, no, 100%. And one thing to keep in mind is it kind of depends on what kind of a suit it is. So if you're dealing with a homeowner association dispute or a real estate transaction dispute, you may have a pre -lawsuit mediation requirement. So you need to make an attempt to reach out to the other side to try to resolve things informally or attend a mediation with a mediator. And what that is is essentially the parties on both sides hire somebody to act as a mediator between them. You pick a date, everybody shows up. You know, more and more these days it's being done by Zoom. But then you work with a mediator to see if a mediator can resolve things. And there is some cost involved, because typically you'll have an attorney involved at that point. You'll be paying for the time of the mediator. But it is way less expensive than a full -blown lawsuit.

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

And then I think the other thing, too, is what is the consequence of failing to hit that step? Because we've been in situations before where clients have come in, they're halfway through a lawsuit, and we realize before they initiated the lawsuit they didn't hit that, they didn't check that box. So what is the downside of not hitting that mark?

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

Yeah, and again, that kind of depends. So like in a homeowner association context, it's not fatal to your lawsuit or fatal to the claims you're bringing. It's not going to be a basis for the other side to try to kick your suit out, but it can be a factor that judges will look at at the end of the suit in deciding whether or not to award you attorney's fees. So let's say, you know, you file the lawsuit, you go all the way through trial, you're 100 % successful, you win your suit. The judge is then evaluating whether or not to award you attorney's fees. fees, that could be a factor that a judge will look at in deciding whether or not you're entitled to your attorney's fees. And a judge may ultimately decide, hey, look, had you gone to mediation, this probably could have gotten resolved, and I don't think you in good faith made any sort of attempt, and so I'm not going to award you your attorney's fees.

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

Yeah, I would argue it is always best practices to hit that mark before commencing litigation.

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

Yeah, and look, that's, it's not just because you want to maximize the chance of getting your attorney's fees back, although that's a good idea. Part of it is just very pragmatic, and I tend to be a very pragmatic litigator, which is, look, if you have an opportunity to resolve this before you spend a whole bunch of money on a lawsuit, why wouldn't you wanna do that? Even if there's a lot of acrimony, it's worth maybe paying for some mediator time and spend four, five, six hours with a mediator, seeing if you can come to some kind of middle ground and get it resolved that maybe you're not 100 % happy, but you're going to be happier, it's going to be resolved, you'll have finality, and you can kind of move forward from there, rather than tying up two, three, four, or five years of your life in a lawsuit.

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

No, I agree. You know, a good mediator is worth their weight in gold, without question. So, okay, now let's fast forward a little bit. You're through the pre -litigation phase, if there is one. Now you're looking to file. What are the considerations? What's step one?

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

Yeah, so as a plaintiff, step one really is preparing and filing a complaint. So whoever your counsel is is going to prepare the initial document that's going to be filed with the court that's going to outline the general facts supporting your case and the causes of action that you have. It's also going to identify all the parties that you're looking to bring into the lawsuit as well. That's on a formal -looking document. It's got what we call a caption, so it has the attorney name at the top. It's got the parties in a little box. It identifies the causes of action, that it's a complaint, and then there's little numbers on the side of the page that show line numbers. It looks very, very legal -like.

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

Right, that is a true legal document, I would say.

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

Yeah, and it just outlines all the general facts as you're aware of them and the causes of action. And you're not necessarily going to put in every fact or every issue because you're really going to put the focus on what's relevant at the time and what you're aware of. And you may become aware of later facts down the line, and we can talk about that in a minute.

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

Yeah, no, that's a good point because I've seen this before where the client's expectation with the complaint is that we're getting everything in front of the judge right out of the gate, right? But it's almost this misconception that the complaint is going to the judge and saying, here's all our evidence, can you make a ruling? It's far from that. I mean, it couldn't be further than the truth. But there seems to be sort of a confusion in the market that the complaint has to embody everything, all of the details, all of the evidence, and that is, you know, the judge is now receiving that, looking at it, and is going to start making decisions right out of the gate.

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

Yeah, and look, in California, it's a notice pleading state, which means the intent is really to just put all the parties that are going to be on the other side on notice as to the general facts and the claims you're making against them. All the specifics and the details are going to be sorted out during the discovery process, and we'll talk about that again in a minute, but the complaint is to really establish the general framework of facts that you're working from that support your causes of action and then the causes of action that you're bringing.

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

All right, so we're at the phase now, complaint's been prepared, filed, then what?

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

So then once it's been filed, you'll get what we call a conformed copy back from the court. This is very detailed. But the court marks it as being filed, it's usually assigned a case number and a judge or a department. Once you have that, then it's ready to be served. So then you can give it to a process server or however you're going to serve it, but then you've got to serve it on all the parties that are defendants. that sometimes can take time. That can be a nightmare, right? It can 100 % be a nightmare because you might be dealing with individuals who are constantly moving around, whose addresses are not known. If you know where they live and you know where they are, it's pretty easy to serve. Or if it's a business, a formal entity in the state of California, the information for how to find them is on the Secretary of State's website because they have to list what's called a registered agent for service of process and it has a person's name and their address, so you know where to serve

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

it. It gets a little trickier if it's a person who's kind of bouncing around.

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

Yeah, let's talk about that real quick. Someone who ducks service. Because that's always, it's not always an issue, but I see it frequently. Someone just doesn't want to get served, so they duck service, meaning process server shows up, knocks at the door, they're home, but they're not home. Right? So what is the process there? How do you serve someone who is evading service?

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

Yeah, and there's probably, each firm kind of handles things a little bit differently, But generally what you do is you'll hire a private investigator. You'll hire a very specific kind of process serving company. And I mean, they'll get, you know, very private investigatory on them. They'll stake out their house. They'll follow them to work. You know, they'll see if they can catch them walking their dog on the street. It's not like the movies where, you know, somebody like pops up magically in a random spot and then stuffs an envelope in their hand, although that could happen, you know, it's typically that they'll find out where they're going to be and then they'll just go serve them wherever they can catch them. They're normally not quite as creative as, you know, TV or movies would have us, but that's really what you got to do. You got to pay somebody to go track them down and then serve them.

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

Yeah. I think the visual is a pineapple express with Seth Rogen. Yeah. Yeah. He is. I think his job is a process server. So he's like a pizza delivery. He has all these outfits in the back.

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

Yeah, and and there are certainly people that will do stuff like that But that's sort of extreme and that's that's sort of extreme I mean more often than not you just hire a good private investigator Because look part of it part of the trick too is finding some of these people sometimes you know where they live or where they Lived but they're gone. And so you'll need to get a private investigator that can kind of track down, you know Potential mailing addresses and they have ways that they can look for them But it can take it can take some sleuthing to figure that out. And what if that never? materializes. What if they don't get served? Well there's other ways you can serve them. So you can serve them by publication, that's another option. Yeah explain that real quick. Yeah so you can you can effectively ask the court for permission to serve them by publication. What that means is you just have to put a notice in a newspaper essentially saying hey so -and -so we are trying to locate you

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

and serve you at these litigation documents. Like an ad in a newspaper, for example, and usually like in the classified section, and this is a little weird now because there aren't a lot of written newspapers, but there's online forums and things like that to serve them. And that's really what you do is you just put a notice somewhere that this lawsuit is pending against them and that will count in trying to serve them. The same thing can happen with businesses. So sometimes businesses have a registered agent, but you go to serve the registered agent and that person's not there, the location's empty, they haven't updated their information. And so you can get permission from the court to serve the Secretary of State on behalf of the entity and it's Effectively like serving the company Gotcha, and that starts the clock on when their response is due. Okay, so let's get into that. So

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

Assuming they're served whether personally or through notice Then what happens? What is the next next chess move?

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

Yeah, so assuming you serve them and you know, it can be a nightmare and cost some money to do that But assuming you get them served then it starts the clock running on their response and they effectively have 30 days to respond to the complaint from the day that they're served and Their response can take a number of forms one They could just straight -up answer the complaint and what that means is they prepare their own very legal looking document It's called an answer and they'll put forward their own facts in their Defense they'll put forward affirmative defenses that they believe justify whatever claims are being made against them And then that is filed with the court and served on all of the parties that are involved so far. Things get a little trickier if the other side decides they're not just going to file an answer because they can try to attack the complaint in a number of ways. One, they could file what's called a demur and in California, that's effectively a motion to dismiss.

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

Where, assuming everything in the complaint is true, there's still some legal basis for them to be out of the suit or that the claims don't apply to them. That could be a stall tactic or a way to run up costs. You know, parties will sometimes file demerges as a matter of course to try to knock something out of the complaint or make the plaintiff's life a lot more difficult or a lot more expensive. The other thing they could do is file a motion to strike. And motions to strike are a little more targeted in what they're attacking. So the demur kind of attacks the complaint as a whole. The motion to strike really attacks specific language or specific items in the complaint itself. And you present effectively legal arguments as to why these particular claims or allegations don't apply. A good example is punitive damages. So a lot of times plaintiffs will request punitive damages based on - People

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

love punitive damages.

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

Yeah, you hear that and everybody sees dollar signs and they think the cash register is just going to open. I mean, there are certainly times where punitive damages apply, but many times they don't. But sometimes, you know, a lot of attorneys will just like to throw that in there if there's even some small reason to get it. Prophylactically, or to try to gain negotiating leverage, there's various reasons. But that's one thing you could attack by way of a motion to strike and just say, hey, look, this is not a punitive damages case. there's no malice here. They haven't alleged any facts sufficient to show malice. There's no fraud in play. That's how you attack it to try to knock it out would be a motion to strike early on. Now sometimes it can be less than effective because you might not necessarily have enough facts or evidence to really back it up at that point. And really all the court is looking at is the four corners of the complaint. What do the actual pleading documents say? And sometimes

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

that's not enough, you know, I like to be careful in filing Demers emotions to strike because they can be expensive, they can take a long time to be heard by courts these days, which kind of puts a stall on the litigation moving forward. But it's worth, you know, it's worth exploring because there are times where it's certainly needed and effective for a client. Well I agree, they

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

can be very effective weapons at the outset, but on the other side of that It can be a complete waste of time and resources, so okay. So here's another question on that, or I guess first a observation. A lot of clients at the opening phase of a lawsuit, the assumption is there's going to be a lot of action. There's a lot of movement initially, sort of in that pleading phase of the lawsuit. But I would argue that that isn't really the case. It's more technical at the beginning, laying the foundation for what's going to come ahead. Because then you switch from once the pleadings are resolved and the any issues if there's a demur and those are resolved either by The parties or by the court now, you're moving into the discovery phase and that's where I think most of when people think of a lawsuit That's what it looks like. That's where the depositions happen. That's the information gathering So do you want to walk through that sort of what that looks like how you approach it? Because that's

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

really where you get to the meat of the issue

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

Yeah, certainly. But let me, let me kind of point out or jump on something you just said that I think is worth keeping in mind is the length of time between when a complaint is filed and when things are at issue and you're ready to kind of move forward with discovery, that can sometimes be months of time. And, you know, especially if you're a plaintiff, you want things to be like moving along quick. You don't want to be waiting. You don't want, that, you know, you think that as soon as the complaint gets filed, like, hey, we're off to the races. You're rock and rolling. Right. And that is frequently not the case, that it will take sometimes months to serve somebody, get some kind of response. They can file a demur, and it could take four months before the court's even going to hear the demur. And so maybe you're six or eight months post -filing the complaint. Before it's at issue. Before it's even at issue. And it even once a demur is heard, you know, sometimes courts will say hey, look,

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

I'll give you a plaintiff So I'm going to grant this demur or I'm going to sustain the demur But I'm going to give you an opportunity to amend the complaint another bite at the apple another bite at the apple You know, and that's that's a double -edged sword depending on whether you're a plaintiff or a defendant in the case you know because If you're a defendant, you know, maybe your demur got sustained which means the court agreed with the arguments you were making but the judge is going to give the plaintiff another opportunity to fix it.

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

Right, it's not necessarily fatal. Correct. So it's one of those victories where you're like, oh, you know, they ruled in our favor, but now it's a do -over.

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

100%, and so it's just worth keeping that in mind, because sometimes we'll have clients that get really anxious to move things along, and they think it's going to be quick, or that that's going to be the hammer that's going to beat the other side into submission, and again, that's why I keep going back to, it always takes longer, and it's always more expensive than you think, because these processes take time. And we, even as attorneys, are at the mercy of the court sometimes. They can't hear it until...

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

Well, especially now with the COVID backlog. I mean, there's a lot of factors going into why it takes so long. Sure. And yeah, to your point, I mean, even to get it at issue can take a long time.

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

Yeah, I mean, there's budget cuts for the various counties too with the courts. So there's a lot of factors that go into this that can delay it. So I think that's a good precursor to getting into the discovery thing. just understanding that that process can take months before you're even ready to kind of really jump into the main part of the case, which is the discovery process.

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

So yeah, let's break that down mechanically, because again, that can get money too, pretty quickly, especially if there's bad faith and the other side is playing games. I mean, that can become just a swamp of the process.

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

Yeah, absolutely. So look, discovery is the real meat and potatoes of a lawsuit, because that's where you're gathering information that you need to support your case or to figure out what the support is for the other side's case and and then formulate a way to attack it. So discovery takes a couple of forms. One is written discovery and you can serve what in legalese we call interrogatories. They're really just written questions that ask the other side to provide information and that could be things as mundane as like their name, where they were born, what schools they went to, you know, the names of people that have knowledge about, you know, the various claims at issue, down to very, very specific things for the case. You know, how things happened, where things happened. The other thing that you serve typically are document requests, and those are very critical to you. A lot of what we do in the law depends on what's written down in a document, and most lawsuits have documents that are

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

part and parcel. Somewhere, they have them somewhere. They're somewhere. Emails, text messages, contracts, letters, insurance policies. There's all kinds of documents that relate to whatever the claim is. Title documents, whatever it might be. And the document requests are how you get those. The other side, when you're dealing with a state court lawsuit isn't under an obligation to just turn over stuff to you that they think you're going to want, and you don't want to leave that up to them anyways. So you're going to send to them specific document requests identifying categories of information that you want to get from them. And they can be broad, they can be specific, they're frequently covered with legalese.

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

Let's get into, because that's a good point. So you have a document, it's relevant, you make the appropriate request, and I believe that's where the gamesmanship opens up, right? That's where they say, the opposing side says, no, you're not entitled to it. Privilege, I mean, they'll make an objection. So walk us through that, because that's where this process can go south, or not necessarily south, but it can become very contentious, there's a lot of back and forth. So what happens when one party makes a request, it's valid, and the other one refuses?

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

Yeah, so if you make a request and the other side refuses, you are required in the state of California to do what's called a meet and confer. And what that is, is you are required to either do it by phone or by letter or email, and you effectively communicate or attempt to communicate with the other side saying, hey look, you haven't complied with your responsibilities with regard to these written requests. You have to do that. And you'll lay out the legal arguments or cite to the statutes, and you'll identify deficiencies in their responses. They didn't provide enough information, they didn't produce any documents that you know exist from other responses, they didn't produce a privilege log for objections based on privilege, and I'll break that down. So, you know, when you're providing responses to this written discovery, the responses will typically include objections because rarely are the questions that you're getting or the requests you're getting so specific and so straightforward

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

that they're not objectionable. Normally there's a lot of defined terms, they're defined very poorly, the questions are overly broad so it's kind of hard to figure out exactly what somebody is asking for and so you'll assert a number of objections to kind of protect your client's interests and to try to figure out or kind of narrow down your understanding of what the request is asking for as part of the response. And then you'll produce whatever documents there are. It may be that they're, in fact, asking for documents that are privileged. So their request could be so overly broad in its formulation that they're asking for communications from counsel. Right, attorney -client privilege. Yeah, 100%. And so you'll provide a privilege log of documents you're not going to produce because a privilege would apply. And that's required under the code in California. There's a lot parties that are sloppy or lazy and they won't do that. And so you may think they're holding back documents. And it may

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

be that they actually are privileged, but you don't know because you haven't seen a privilege log, you haven't seen the documents, you know that something exists. Those are the things that kind of create these conflicts or problems. And sometimes if you're dealing with a problematic or difficult attorney on the other side, it can escalate very quickly.

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

Yeah, let's run through that. You make the request. They tell you to go pound sand. I'm not turning it over. You know it's relevant. You know it's discoverable. You follow up with a beat and confer. Their response is go pound sand. What do you do then? What action do you take then?

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

Yeah, I mean, at that point, you really have no choice but to file a motion to compel with the court. Okay.

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

So that's when the court gets involved, right? That's a huge difference because it's sort of this informal discussion with opposing counsel, but then it changes its nature very quickly over to court intervention.

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

Yeah, and part of that, that's allowed under the code for all of these discovery vehicles that you have. Whether it's an interrogatory, a request for a document, we haven't talked about it yet, but a request for admission, it's the same thing. If somebody's playing games, they're asserting objections that aren't valid, they're withholding information that you reasonably believe exists, you can file a motion to compel. And it's, you know, like any other motion you file in a lawsuit, you make your legal arguments in a document, it's got evidence in support of that, it could be declarations, a declaration is a signed affidavit, it's a signed statement from a person saying under penalty of perjury I'm telling you these things are true, and you submit it to the court. And frequently that will involve asking for sanctions too. Hey judge, they are making us waste all this time and money, if you grant this motion you've to give it you got to make them pay us back for having to file this motion

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

so yeah let's bifurcate

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

that motion because on the one hand you're asking for the document or documents but on the other side you're asking for sanctions what what do the sanctions tie into right how do you how do you break those down how do you come up with that math yeah and and look we could get we could get

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

in like another two -hour conversation about sanctions let's not do that let's uh high level yeah concord three thousand foot level yeah so typically the first sanction that you would request is really money. Hey, you know, compensate my client for making us file this motion to compel because they should have just turned this stuff over to us. Which ties to the attorney's fees? Yeah, that's the attorney's fees and costs incurred in filing the motion to compel. Right. And in some cases the actual meet and confer process, but for the most part it's a motion to compel the responses to the discovery. The intent being, hey look, we want the parties to work cooperatively in this discovery process to turn over relevant information to each other because that's what helps work towards a solution or a resolution. And so the parties can be prepared for trial. The intent behind the discovery code is nobody, the party should not be surprised at trial. Right. And nobody wants to have a surprise witness

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

or document just come up at trial that you've never seen or heard of before. Hey look, I would love to Tom Cruise somebody, you know, in trial or in a deposition but that almost never happens. You're never going to get somebody like a Colonel Jessup that's just going to spill his guts like right there when they're on the record. But getting these documents is about as close as you can get to that because sometimes somebody's going to have sent an email that's a little more candid than what they're willing to say to your face when you're in a deposition or when they're on the stand at trial. The motion to compel is really to get the court to order the other side to comply with the discovery. And the sanction is really the stick that the court uses to kind of slap their hand for not doing it.

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

Now, you identified two things with the court. They have that huge backlog because of COVID. You have budget cuts. So what's the court's temperament when it comes to a legitimate motion to compel?

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

Yeah, and that's a good point to raise. They hate them. mean judges typically hate discovery disputes or motions to compel because that's like the that's the low -hanging fruit I would say and so the judges will do almost anything they can to avoid having to address a motion to compel so you have a lot of you have a lot of departments or courtrooms in Southern California where our office is located that will set an informal discovery conference or have a requirement that you attend an informal discovery conference. Really all that is is the judge kind of takes off his robes and meets with the attorneys on the phone or by Zoom or in his chambers and you kind of hash it out, sing kumbayas, even come to some kind of an agreement. I mean that stinks for a client because they're paying you typically to be there for it and then they're not going to get sanctions if you work some deal out. So it's kind of an investment in the discovery or part of the litigation process.

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

But it almost becomes a necessary evil. I mean, if the other side is playing games, there's only so much you can do informally. You know, bringing in the court, even informally, it carries weight.

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

Yeah, 100%. And look, at the end of the day, you really want the discovery more than you want to stick it to the other side. The intent behind the motion to compel is not to try to hurt the other side. It's really just to get them to do what they should have done to begin with. And, you know, different attorneys may have different strategies or look at it different ways. But I will only file a motion to compel if it's really just necessary, that like the other side's playing games and they're holding back. Because it is expensive, it's not guaranteed that it's going to result in the information that you want. Because sometimes judges are like, well, because they hate dealing with them so much, is they'll say, look, I'm not going to grant the motion, but I see the argument you're making. So why don't you re -serve more specific discovery and then we'll have the other side answer So they'll kind of split the baby, so to speak. I mean, it's not super satisfying to clients because you spend

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

all this money on a motion to compel, they're already deep into this lawsuit and the judge doesn't give them what you really wanted or what they really wanted.

LS Carlson Law Founder and Host, Attorney Luke Carlson, Esq.

Right, but I mean, ultimately, if you get the document, if you get the smoke and guns that are going to help the case, it's worth it, but you don't have that victory that you were looking for. And I think really it's that sanctions, right? The client wants the check.

LS Carlson Law Partner, Attorney Kirk Pearson, Esq.

Well, yeah, and sometimes it's because they want their pound of flesh because there's a lot of acrimony at that point. And that's why, again, part of our role as counsel is to kind of talk them back from that because it's not really meant to help with their vendetta or get that pound of flesh. It's really to get the information that you're entitled to.

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