The Lawsuit
Survival Guide
A Client’s Companion to Litigation
By Attorney Joseph L. Matthews
1st edition
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Ac knowledgments
Many people at Nolo have had a hand in the project which has become this book.
Barbara Kate Repa encouraged the project in its infancy. Shae Irving and Janet
Portman did preliminary work on an early manuscript chapter, trying to hammer out
an approach that could be most helpful to lawsuit “civilians.” And I am very grateful
to Mary Randolph, who recognized the project’s value and rescued it when it seemed
to be floundering.
The book owes its final organizational clarity and consistency to the superb edito-
rial work of Lisa Guerin. It may have been a book when it got to her, but she honed
it and polished it to a much finer shape.
Thanks, too, go to the wonderful trial lawyers from whom I have learned so much
over the years, not just about the technical aspects of civil litigation but about how to
treat human beings—especially their clients—along the way. These fine lawyers
include the late Stuart Buckley, Meriel Lindley and especially Dick Duane.
My final and greatest thanks are reserved for someone who combines a compre-
hensive understanding of the law, a keen and unblinking editorial eye and an
unwavering dedication to making the law accessible to all. Steve Elias took a formless
mass of words and patiently, tirelessly and always good-humoredly showed me how
it could be a book.

Table of Contents
1
Introduction
Section I: The Trouble With Lawsuits I/2
Section II: How to Use This Book I/3
1

Section V: Plaintiff’s Motions for Default 5/38
Section VI: Defendant’s Motions to Dismiss 5/40
Section VII: Discovery Motions 5/43
Section VIII: Motions for Summary Judgment and Summary
Adjudication 5/48
6
Mediation
7
Arbitration
Section I: Arbitration Basics 7/3
Section II: Arbitration or Trial? 7/10
Section III: Preparing for Arbitration 7/14
Section IV: The Arbitration Hearing and Decision 7/18
8
Settling a Lawsuit
Section I: Setting Settlement Goals and Starting Negotiations 8/3
Section II: Getting Help From the Judge: Settlement Conferences 8/10
Section III: Payment Options 8/15
Section IV: Partial Settlements 8/17
Section V: Finalizing the Settlement 8/21
9
Trial
Section I: Setting the Trial Date 9/4
Section II: Judge or Jury? 9/10
Section III: Pretrial Proceedings and Conferences 9/13
Section IV: Preparing for Trial 9/17
Sections V-VIII: Trial 9/22
Section V: Getting a Judge 9/22
Section VI: Jury Selection 9/26
Section VII: Witnesses, Evidence and Arguments 9/38

a bundle and doesn’t seem to offer you a
meaningful way to participate in the process.
But it doesn’t have to be this way. This
book explains each step in the litigation
process, guides you through the jumble of
legal language and courtroom procedures
and offers advice about assisting and working
with your lawyer. Lawsuits are complicated,
time-consuming and stressful affairs. But
with the help of this book and a good
lawyer, you can navigate the legal system
successfully and get the best possible result
with the least possible anxiety.
Section I: The Trouble With
Lawsuits
A lawsuit can be an extraordinarily expen-
sive, time-consuming and energy-draining
experience, sometimes with life-changing
consequences. Nonetheless, many people
go through a lawsuit without ever knowing
exactly what is happening, let alone taking
an active part in important decisions along
the way.
A. Why Lawsuits Are So Maddening
There are several reasons for this bleak
state of affairs.
First, the adversary process—the lawsuit
battle for a winner and loser—has devel-
oped into a complex chess game. Obscure
legal moves, countermoves, gambits and

All of this is made worse by the notorious
lawyers’ lingo. The legal system hides its
work behind a twisted mix of Latin, medi-
eval French and entirely made-up words
accessible only to those—the lawyers—who
speak the language. Although many legal
concepts are surprisingly straightforward,
the jargon used to describe them is any-
thing but.
Finally, there is precious little plain-
language consumer information available to
non-lawyers who are caught up in the law-
suit process. That’s where this book comes
in. It will guide you, step by step, through
the litigation maze, explaining legal jargon
and procedures along the way.
B. The Informed Consumer
To be an effective consumer of a lawyer’s
services—to get the best “product” at the
best price—you have to be an informed
consumer. The more you understand about
your lawsuit, the more you can assist your
lawyer—and the more likely you are to end
up with a positive result. You will also sur-
vive the long process with greatly reduced
stress and worry.
Unfortunately, your lawyer may not
always take the time to sufficiently explain
the lawsuit process. Instead, as your lawsuit
slowly wends its way along, you may be

This Is Not a Do-It-Yourself Guide
This book does not explain how to represent
yourself in court or how to do particular
legal tasks from start to finish. Instead, it
assumes that you are represented by a
lawyer who will do the necessary legal
work. Although this book can help you work
successfully with your lawyer, it won’t
train you to be your own lawyer. For infor-
mation on working without a lawyer, see
Represent Yourself in Court by Attorneys
Paul Bergman and Sara J. Berman-Barrett
(Nolo).
A. Lawsuits Covered by This Book
Whether you are a plaintiff (suing) or a
defendant (being sued) in almost any kind
of civil lawsuit, this book is for you. It takes
you from the search for a lawyer and the
very first papers in the lawsuit right through
trial and beyond. Along the way, it explains
standard procedures used in both state and
federal courts, including variations that
occur from courts in one place to courts in
another.
Whether your lawsuit arises out of a car
accident, a dispute with a neighbor, landlord,
tenant, co-owner, employer or employee, a
conflict with a business connection, a
domestic or business partner or someone
who has provided you with services or a

The questions are those that any non-law-
yer caught up in a lawsuit might ask about
his or her case. The answers, which often
include real-world examples, explain:
• what the legal terms mean
INTRODUCTION I/5
• what a particular procedure is and
how it is carried out
• what the procedure is intended to ac-
complish
• what work the lawyers must do re-
garding that procedure
• how long the process takes
• what benefits and risks are involved
• how you can help your lawyer
• how to control legal fees and costs,
and
• what’s coming next.
For almost any civil lawsuit, this book
can serve as your personal guide through
the litigation maze. When a lawyer says
something is happening in your case—or if,
for awhile, nothing seems to be happening
—this is where you can find an explanation.
And it also suggests important questions to
ask your lawyer along the way.
C. How to Use This Book
There are several different ways to use this
book. You can look over the whole book
from start to finish to get a sense of what

cance of what might be won against the likely
cost and the possibility of losing. You and
your lawyer might also discuss alternatives to
consider before, rather than after, your money
is spent.
This Icon Explains How You Can Help
Your Lawyer. You may be very keen to
help your lawyer pursue or defend your law-
suit. After all, you’re the one who will be most
affected by the outcome. Also, at least initially,
you probably know more about the dispute
than your lawyer. You may want to get
involved in the lawsuit just to keep better tabs
on the process. And if you are paying hourly
attorney fees, you might save considerable
I/6 THE LAWSUIT SURVIVAL GUIDE
money by doing some work that your lawyer
would otherwise have to do.
Some lawyers are very good about including
their clients in lawsuit tasks. They know that
an organized, thorough client can be of great
assistance. But many lawyers get so wrapped
up in their own role that they don’t let their
clients know how the clients can help. As a
result, a client who wants to be involved might
cause friction with the lawyer and run up un-
necessary legal bills. Or a client might plunge
into a project hoping to be helpful, only to
find out later that it was a waste of time and
energy. Or a client might just sit and stew,

for a handy reminder:
• party—litigant—side—client—plaintiff—
defendant.
A person, business or
other organization or entity which
sues or gets sued is called a “party” to
the lawsuit. “Litigant” is another term
for party, used to indicate that a
formal lawsuit has begun (as distin-
guished from a party to a contract, or
a party to a dispute that has not yet
become a lawsuit). Every lawsuit has
at least two “sides,” meaning parties
with opposing interests in the outcome.
In most lawsuits, the party suing is
one side (the “plaintiff”) and the party
being sued is the other side (the
“defendant”). A lawsuit may also
include countersuits against third
parties, in which case it might have
more than two sides. (See Chapter 3,
Section III.) “Client” refers to a party
in the context of the relationship with
his or her lawyer. (“A lawyer and
client should discuss the procedure
before the lawyer begins work on
it.”)
INTRODUCTION I/7
•
attorney—lawyer—counsel. These

Those amounts spent by a lawyer that
are not official lawsuit costs are
considered “expenses” that must be
borne by the lawyer’s office as over-
head. Likewise, amounts spent by a
client that do not qualify as official
lawsuit costs must be borne by the
client and cannot be recovered from
the opposing side. (See Chapter 2,
Section III.)
• lawsuit—litigation—case—action. The
term “lawsuit” refers both to the initial
court papers filed by a person suing
someone else (“The lawsuit was filed
on February 1st”) and to the entire
legal process that follows (“The law-
suit took three years from start to
finish”). “Litigation” may refer to a
particular lawsuit (“The lawyer who
represents the defendant in this
litigation…”) or to all of the various
procedures that make up the lawsuit
process (“All litigation will be sus-
pended while the two sides seek to
mediate their dispute”). “Case” is a
general term that is used to refer to a
legal dispute whether or not it becomes
a formal lawsuit (“Has the lawyer
handled a case like this before?”).
“Action” is a more technical word for

happen in the case. When used in
this way, “court” simply means a
“judge.” When the book refers to
filing documents with “the court,” it
means giving or sending the papers
to the court clerk’s office, where they
are officially marked as received,
placed in the court’s file for your case
and eventually read by a judge.
• motion—request—application. Lawyers
frequently ask a judge to order that
another party do or refrain from doing
something, or to interpret some
procedure about which the parties
disagree. This is done through a pro-
cess referred to as making a “motion,”
“request” or “application.” Sometimes
one term is used, sometimes another,
but all mean the same thing.
• order—ruling—decision. During a
lawsuit, lawyers frequently ask a
judge to interpret some rule or to
order the other side to comply with a
procedure. (See “motion—request—
application” above.) A judge’s response
to the request is known as a “ruling”
or “decision.” The official document,
or verbal direction, from the judge
that precisely states the ruling is
known as an “order” or “court order.”

3. Once I have some referrals, what should I do next? 1/7
4. I have been sued and my insurance company is going to
defend me. Can I choose the lawyer who does the job? 1/7
5. Are only certain kinds of lawyers permitted to represent me in court? 1/8
6. How can I find out if a lawyer has the right litigation experience? 1/8
7. Do lawyers specialize in particular areas of law? 1/9
8. Does a lawyer’s fee tell me anything about how good the lawyer
will be? 1/10
9. What should I ask potential lawyers about fees and costs? 1/10
10. Should I talk to potential lawyers about my attitudes
towards the lawsuit? 1/11
11. The lawyer I want to hire works in a law firm. Will other
people in the firm also work on my case? 1/12
12. Does the size of a law firm affect the quality of the
representation it provides? 1/13
13. Can a conflict of interest prevent me from hiring a lawyer I want? 1/14
14. Can a lawyer represent me despite a conflict of interest? 1/14
Section II: Changing Lawyers 1/15
15. If I already have a lawyer, can I hire a new one to handle
my lawsuit? 1/15
16. Can I change lawyers after a lawsuit has begun? 1/15
17. If I decide to change lawyers, who gets the fees? 1/15
1/2 THE LAWSUIT SURVIVAL GUIDE
18. What is the procedure for formally switching from one
lawyer to another? 1/16
19. Can my lawyer drop me as a client? 1/17
20. Can my lawyer be forced to continue representing me in
the lawsuit? 1/18
Section III: Attorney Fees and Litigation Costs 1/18
21. What is the range of fees I may be facing if I pay my lawyer

choosing a lawyer. Once a
lawyer has been selected, the client will
have to make a formal agreement with the
lawyer about how the lawsuit will be
conducted and how the lawyer will be
paid.
This chapter addresses the process of
selecting a lawyer. The chapter also explains
a client’s right to change lawyers. And it
discusses the key elements that must be
contained in any written representation
agreement between a lawyer and client. In
particular, it focuses on the ways in which
a lawyer might be paid, and the extent to
which the client will be responsible for
other expenses of litigation.
You Might Not Need This Chapter.
You may already have hired a lawyer
to represent you in your lawsuit. And you may
be well satisfied with that lawyer’s experience
and willingness to meet your needs in the case.
You and the lawyer may also have settled
upon a fee arrangement with which you are
comfortable. If so, consider skipping this
chapter altogether. But even if you already
have a lawyer, it may be a good idea for you
at least to skim this chapter. Information you
can find here about communicating with your
lawyer and about fee arrangements may
enhance your existing relationship. This

meeting with the client. A client who is un-
willing or unable to pay a consultation fee
should ask the lawyer to waive the fee. Even
lawyers who usually charge a consultation
fee will probably meet with a client for free
if they believe the case is a strong one.
1/4 THE LAWSUIT SURVIVAL GUIDE
Why Hire a Lawyer
This book is written for parties to a lawsuit
who have decided to hire lawyers to repre-
sent them. Of course, some people choose
to go it alone; they represent themselves in
court, sometimes with great success. Those
considering this option can find information
and guidance in Represent Yourself in
Court: How to Prepare & Try a Winning
Case, by Attorneys Paul Bergman and Sara
J. Berman-Barrett (Nolo).
Representing oneself is not a good option
for everyone or for every type of lawsuit,
however. Many people have neither the
time nor the inclination to learn the many
technical legal rules that apply to every law-
suit, to do the research, investigation and
preparation necessary to adequately repre-
sent themselves or to determine the realistic
value of their case. This is where a good
lawyer comes in. A client can expect the
lawyer not only to do the legal work neces-
sary to prepare the case for trial, but also to:

dispute, whether a local jury is liable to
award high (or low) damages and what
to expect from opposing lawyers.
LAWYERS, FEES AND RETAINER AGREEMENTS 1/5
When searching for a lawyer to handle
a dispute that has reached the lawsuit
stage, a client should seek referrals specifically
to a litigator or trial lawyer, and preferably to
one who has experience with cases involving
the same area of law. (See Questions 5-7,
below.)
2. Where can I get referrals to an
appropriate lawyer?
Lawyer referrals come from many sources.
Lawyers. Lawyers frequently refer cases to
one another. Any lawyer probably knows,
or knows some other lawyer who knows, a
litigation specialist familiar with the area of
law involved in a particular case. However,
just because a lawyer does the referring
does not mean that the lawyer being
referred is right for the job. A client must
still personally evaluate any lawyer being
considered.
Business Associates and Trade Organizations.
If a lawsuit arises out of a business dispute,
people in the same or other businesses
might have been involved in litigation of
their own. If so, they may be able provide
references to lawyers they used and liked,

and openly. Only if you give the lawyer a
complete picture of the case can the
lawyer give you an accurate and useful
opinion about how the case might be
conducted, what its outcome might be and
how much it might cost.