Our Blog

Recently we've reviewed, in a general sense, various types of Alternative Dispute Resolution ("ADR") and how those processes work. But what about court?

What About Court?

Recently we've reviewed, in a general sense, various types of Alternative Dispute Resolution ("ADR") and how those processes work. But what about court? Often enough in real estate transactions (or in other real estate matters, such as real estate partnerships) the parties do not "check the box" or initial for binding arbitration. What happens then? Without a contract providing for ADR, the parties are generally going to pursue conventional court process in the event of disputes.

Years ago ADR was not so much in vogue and nearly all types of real estate cases went through court for resolution. It used to be that cases could and would often take 3, 4, 5 years (sometimes longer, there was one case I had contact with as a young lawyer which lasted 10 years!). Often cases, would be filed and not served, or would be filed and served, but would languish (no action would occur) for many months or sometimes years. Sometimes, in those older times, the case would suddenly come alive and attorneys would earnestly begin taking discovery and preparing for trial when the 3 year or 5 year dismissal statute approached or worse yet, they were facing down a motion to dismiss for lack of prosecution. In those older times, cases that were heavily litigated often led to a "survival of the fittest" contest that is whoever had deepest pockets would outlast or outspend their opponent. Of course, the facts and law applicable to the case played an important role and cases could be decided sometimes on summary judgment motion, that is without trial or the party with the best facts, evidence (or attorney) could prevail at trial.

More recently, the courts enacted "fast-track" rules. These rules require most cases to be resolved or tried within 12 to 18 months of filing. There are some exceptions for complex or class action cases. Also, there are strict time-limits not only for filing suits (statutes of limitation), but also strict (fast track) rules on serving and responding to suits. Typically, there are 4 basic stages of a lawsuit filed in court. 1) The lawsuit is filed, served and responded to; 2) discovery processes go forward; 3) Settlement Conference; 4) ADR or Trial. At stage 1, the lawsuit is filed at court and summons is issued. The defendants are served (handed or delivered) the summons and complaint. The defendant (in most cases) has 30 days after being served to respond to the complaint. The defendant may answer the complaint or file a motion to attack the complaint. If it's attacked, there will be a hearing on the motion ruled upon by the judge which will dictate the future course of the case. If the complaint is answered, lawyers often say the case is "at issue". This at issue status signals the start of stage 2, the discovery process. It is in the discovery process that the attorneys can request production of documents and things (Inspection Demand) or subpoena documents send written questions (interrogatories), take oral testimony from witnesses under oath (depositions) and do related activity to gather evidence and prepare the case for settlement, ADR or trial. At stage 3, the courts will generally require a settlement conference or some form of ADR in effort to resolve the case, and finally, failing that stage 4 the case may be tried before a judge (bench trial) or a judge and jury (jury trial).

There are many advantages / disadvantages to conventional court processes for dispute resolution. Some of the advantages include having access to the court and judges empowered to make orders and judgments enforceable by law. Discovery can also offer a significant advantage over other forms of ADR, such as arbitration or mediation which often have little if any discovery. The disadvantage can be the cost and time involved. Many people and businesses still prefer resolution of disputes through conventional court process. It is important to evaluate each matter on a case-by-case basis to determine which form of dispute resolution is best.

David M. Trapani is a licensed attorney in California and has offices in El Dorado Hills and San Jose, California. He graduated from Santa Clara University Law School in 1987. He can be contacted at (916) 939-2294 or at This e-mail address is being protected from spambots. You need JavaScript enabled to view it . This article is for general information only. It is not a substitute for legal advice for your particular situation and cannot be relied upon as a substitute for consultation with an attorney regarding your specific facts and no attorney client relationship is created hereby.

Read 120749 times
Rate this item
(0 votes)
Super User

Donec a bibendum sem. Mauris vitae libero arcu. Vestibulum consequat ipsum ut orci laoreet quis hendrerit diam cursus.

Website: www.themewinter.com

27986 comments

  • empowerment
    empowerment Tuesday, 23 January 2018 18:35 Comment Link

    Im grateful for the blog article.Really looking forward to read more. Great.

  • Geraldrix
    Geraldrix Tuesday, 23 January 2018 18:32 Comment Link

    generic viagra online overnight shipping
    viagra without a doctor prescription
    viagra on sale in ireland
    viagra without script
    e necessario receita medica para comprar viagra
    viagra coupon
    vendita viagra generico in italia
    viagra coupon
    buying viagra from canada safe

  • www.craglist.ca
    www.craglist.ca Tuesday, 23 January 2018 18:25 Comment Link

    Very neat blog article.Much thanks again. Really Great.

  • Lucie
    Lucie Tuesday, 23 January 2018 18:21 Comment Link

    I've been exploring for a little for any high quality
    articles or weblog posts in this sort of space . Exploring in Yahoo I
    finally stumbled upon this website. Reading this info So i'm glad to exhibit
    that I have an incredibly excellent uncanny feeling I came
    upon exactly what I needed. I most indubitably will make sure to don?t disregard this web site
    and provides it a look on a relentless basis.

  • Dakota
    Dakota Tuesday, 23 January 2018 17:59 Comment Link

    It's perfect time to make a few plans for the long run and it is time to be happy.

    I have learn this publish and if I could I desire to suggest you
    few attention-grabbing things or tips. Perhaps you could write subsequent articles referring to this
    article. I want to read more issues about it!

  • Katherine
    Katherine Tuesday, 23 January 2018 17:40 Comment Link

    Thanks for a marvelous posting! I certainly enjoyed reading it,
    you may be a great author.I will make sure to bookmark your blog and will often come back in the foreseeable future.
    I want to encourage you to ultimately continue your great
    posts, have a nice day!

  • Grover
    Grover Tuesday, 23 January 2018 17:39 Comment Link

    original cialis pills
    viagra without prescription
    buy real cialis online

  • RodolfoBek
    RodolfoBek Tuesday, 23 January 2018 17:24 Comment Link

    buy cialis viagra levitra
    viagra without doctor
    buy professional viagra
    viagra without prescription
    evolution of a viagra salesman
    viagra prices
    am getting so much viagra spam
    cheap viagra
    where can i get sildenafil

  • RodolfoBek
    RodolfoBek Tuesday, 23 January 2018 17:13 Comment Link

    generic viagra in the uk
    viagra prices
    donde puedo comprar viagra en buenos aires
    viagra without prescription
    generic viagra sold
    buy viagra
    viagra online no prescriptions usa
    cheap viagra
    where to buy real viagra online

  • TylerWraky
    TylerWraky Tuesday, 23 January 2018 16:53 Comment Link

    generico del viagra en mexico
    viagra without doctor
    how much is viagra per pill
    viagra without script
    buy viagra online canada no prescription
    viagra coupon
    online viagra forums
    viagra coupon
    viagra online uk next day

Leave a comment

Make sure you enter all the required information, indicated by an asterisk (*). HTML code is not allowed.

Contact

Contact the Trapani Law Firm for a consultation now.

We understand the ins and outs of real estate law, construction law, foreclosure law and personal injury law.

Contact Info

2201 Francisco Dr.,
Suite 140
El Dorado Hills, CA 95762

(916)-337-3777
  This email address is being protected from spambots. You need JavaScript enabled to view it.
9.00 am to 5.00 pm