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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.

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