How are lawsuits filed, prosecuted and resolved?

When a person has a claim for damages, they have the legal right to file a lawsuit in court against the person or the company that caused the damage.  This applies to the victim in an auto accident and it applies equally to employees whose rights have been violated by their employer.

To understand the litigation process, it is important to understand the steps that guide the process from claim to trial, and the terms we use to describe it.

The Plaintiff is the Injured Person

A person who is injured by the acts of another and who seeks to recover money through the civil justice system is called a plaintiff.

The Defendant Is the Person Who Caused the Injuries

The person or the company that injured the employee, or who violated California labor laws, is called the defendant in an employment lawsuit.

A Cause of Action is a Specific Legal Claim

Every claim made by an injured person is set out in a complaint, which is the document that describes and summarizes the plaintiff’s claims.  Each separate claim in the complaint is called a cause of action and it must be based on the law applicable to the plaintiff’s claims.  Different causes of action have different proof requirements that the plaintiff must “carry” or prove to obtain a judgment against the defendant.

Normally the Plaintiff Carries the Burden of Proof

In a typical case for unpaid wages, the plaintiff must prove that they were not paid all of the wages due to them.  Sometimes that means providing estimates about how many hours they worked during the time they were not paid.  For example, in our class action case against Polo Ralph Lauren for off-the-clock time spent waiting to have their bags checked by their managers, we conduced survey research among the employees to establish that they had not been paid for an average of about 15 minutes each day.

Plaintiff’s Complaint and Defendant’s Answer

If early settlement is not possible, we prepare a civil complaint against the employer that sets out all of the elements of each cause of action arising out of the alleged violations.  We next file it in court.  After that, we have a process server serve the summons and complaint on the employer.  The employer has 30 days to file a response to the complaint.

Investigation and Discovery

Stacks of bankers boxes full of evidence


During the next 6 to 8 months, we investigate the facts of the case and participate in formal discovery.  In every civil lawsuit, the plaintiff and the defendant have the right to obtain written responses to questions from the other side.  The parties also have the right to demand that the other side produce relevant documents.  This process is rigorous and requires the analysis of a substantial volume of evidence, including all employment records and personnel files.  During this time the parties often take depositions of witnesses.

The discovery phase can last several months, depending on the number of witnesses and the complexity of the factual and legal issues at stake in the case.

Expert Designation and Discovery

Toward the end of the fact discovery phase of the case, the plaintiff and defendant might provide one another with the names of those persons they intend to use as expert witnesses at trial.  We typically designate an economist in high value wage cases.  The defendant’s lawyers usually designate one or more experts as well.  Both sides then take depositions of the designated expert witnesses during what is called the expert discovery phases of the case.

If the case has not been resolved through settlement negotiations, the case will move toward trial.  Depending on the court where the action is filed, trial might be scheduled to occur within one year of the date the plaintiff filed their complaint.

Alternative Dispute Resolution

Throughout the course of the lawsuit, the attorneys regularly meet with a judge to update the court about their progress.  The judge usually asks the plaintiff and defendant to try to resolve the case through a process called alternative dispute resolution, or ADR.  ADR can be in the form of mediation .  Mediation is conducted by a retired judge or experienced attorney.

The parties and their lawyers meet with the mediator and spend time trying to resolve the case through negotiation.  The mediator does not order the parties to settle the case, but works with them to see if they can settle the case on terms that work for both sides of the dispute.  Arbitration, another form of ADR, is like a trial without a jury.  A retired judge or experienced attorney hears the parties’ evidence and at the end of the arbitration issues a ruling either in favor of the plaintiff or in favor of the defendant.



The trial of wage and hour issues

If the parties have not resolved the lawsuit through settlement discussions after a year or so, the court will set a trial date.  Trials are uncommon in wage cases for a number of reasons, however.

First, most wage cases are resolved through mediation.  Second, defendants in these kinds of cases can be ordered to pay the employee’s attorneys’ fees and costs (in addition to their own lawyer’s fees and costs).  This makes wage claims very dangerous for employers.  Third, even if the employee only recovers a relatively small amount of unpaid wages, their attorneys’ fees can be large.

For example, several years ago I prosecuted a relatively low value wage claim against Polo Ralph Lauren.  Polo’s attorneys mounted an aggressive defense and required us to engage in lengthy discovery.  Despite the strength of my client’s claims, Polo did not engage in any settlement discussions until two days before trial.  While the employee’s claims were only worth around $14,000, the court order Polo to pay nearly $90,000 in attorneys’ fees and costs.

The Takeaway

The civil litigation process is designed to give the parties to a dispute the ability to gather enough information from one another to make an informed decision about settlement.  The process ends with a trial in some cases.  Often, however, the parties and their attorneys negotiate a pretrial settlement to help resolve all of the claims.

When seeking out employment counsel, it is important to select someone who understands this lengthy process and who is a good negotiator.  It is also important to make sure you have retained counsel who is willing to keep you informed about every step in this process.  While an aggressive approach to the litigation process is sometimes needed, the goal of the process is and must always be to resolve the claims in an economically-rational way.


Please contact Patrick Kitchin at 415-677-9058 if you have any questions about your legal rights and the civil litigation process.