Document Sample
					                                       LITIGATION PROCESS TERMINOLOGY


Disclaimer: The information contained herein as part of the NSBIA Litigation Protocols & Processes is not intended to replace your legal council,
but rather to assist you and them in organizing and coordinating your efforts with those of the other defense parties to the claims. Because
they have been assembled for the most part by non-legal volunteers, it is important for the users of this information to verify the accuracy and
appropriateness for use in their own applications. The NSBIA/BTAC would appreciate feedback, suggestions and additional strategies and
tactics that others in our industry may have.


                Contractual Indemnity Agreements
                       Type 1
                       Type 2
                       Type 3

      Claims Made Policies
      Occurrence Policies
      Endorsement Forms

      Additional Insured
      Additional Insured Endorsement
      Admitted Insurer
      Armstrong Election
               Sample Letter
      Captive Insurance
      Certificate of Insurance
      Comprehensive General Liability Insurance (CGL)
      Duty to Defend
      Duty to Indemnify
      Insurance Policy
      Liability Limits
      Loss Progress Exclusion (or progressive loss exclusion)
      Montrose Decision

           OCIP (Owner Controlled Insurance Policy) – see Wrap/Wrap-up Insurance Policy
           Pollution Exclusion
           Reservation of Rights
           SIR (Self Insured Retention)
           Subrogation (Waiver of )
           Work Product Exclusion
           Wrap/Wrap-up Insurance Policy
              Wrap Insurance Guide

      AB2738 Fairness in Construction Contract Act
            Right to Repair Act

                Active Negligence
                Passsive Negligence
       Strict Liability

       Action (see Lawsuit; Claim; Cause of Action)
       Affirmative Defenses
       Answer (also see pleadings)
       Case Management Order (CMO)
       Claim (see Cause of Action)
       Code of Civil Procedure
                Federal Rules of Civil Procedure
       Deposition (see pre-trial procedures)
       Discovery (see pre-trial procedures)
       Dismiss / Dismissal
       Equitable Remedy
       Et al.
       Entry of Default
       Interrogatories – see Pre-trial procedures
                Active Negligence
                Passive Negligence
                Plaintiffs’ Counsel
           Service of process (aka Summons)
                Cross Complaint
                Receipt of Cross Complaint Process
           Cause of action (aka Claim)
           Case Information Statement
           Claim (see Cause of Action)
           Class action
                Class Action Fairness Act of 2005
           Defect –
          Affirmative defense
          Cross-claim (aka Cross-Complaint)

       Pre-trial procedures
           Interrogatories (aka Interrogatory Responses)
           Request for Admissions
       Responsive Pleading
       Service of Process
               With / Without Prejudice (see dismissal)
               Builder Recordable Settlement Notice - Sample
               Settlement Conference
               Settlement Offer
       Special Master
       Summons (aka Judicial Summons)
               Receipt of Tender Letter Process


Contractual Indemnity Agreements: A provision in a contract that requires one
contracting party to respond to certain liabilities of the other party. Usually construction
contracts have language that “shifts” the liability risk, particularly the duty to defend and
the duty to indemnify, upon the subcontractor. These are also called “Hold Harmless”
agreements. There are many types of these clauses, usually differentiated by the extent
of the liabilities they transfer. Example: Subcontractor hereby agrees to save, indemnify
and hold harmless Del Webb (or whomever) and its partners, officers, agents and
employees against all liability, claims, damages, etc. These come in three “types”, and
“Type 1" is most common.

       Type 1: Will protect the person to be indemnified (“indemnitee”) from liability,
       regardless of the “active negligence” of the indemnitee. However, liability cannot
       be imposed for the sole negligence of the indemnitee.

       Type 2: Protects the indemnitee from liability arising from the indemnitee‟s
       passive negligence or vicarious liability, but not from the indemnitee‟s active or
       concurrent negligence.
       Type 3: Means that the subcontractor is liable for a share of damages and
       defense expenses commensurate with the subcontractor‟s own negligence.


Claims Made Policies: A term describing an insurance policy that covers claims first
made (reported, or filed) during the year the policy is in force for any incidents that occur
that year or during any previous period during which the insured was covered under a
“claims made” contract. This type of coverage is in contrast to the “occurrence” policy,
which covers an incident occurring while the policy is in force regardless of when the
claim arising out of that incident is filed (1 or more years later).

Occurrence Policies: A policy covering claims that arise out of damage or injury that
took place during the policy period, regardless of when the claim is made.
Most commercial general liability insurance purchased by subcontractors are
occurrence policies.

Endorsement Forms: An endorsement is an amendment to a policy issued by the
insurance company to a third party‟s or “named insured‟s” insurance policy. Some
insurance company‟s use “manuscript” endorsements (i.e., custom forms 1185 and

Return to: Index

Risk management and insurance professionals have developed a language of their
own, much of it mysterious and complex. Understanding this language, or having some
sort of working familiarity, is essential.

Additional Insured Endorsement: A policy endorsement used to add coverage for
additional insureds by name. An endorsement (i.e., an amendment to the policy issued
by the insurance company) to a third party‟s or “named insured‟s” insurance policy. The
prime construction contract will require the general contractor to name the owner as an
“additional insured” on the general contractor‟s policies. The general contractor, in turn,
will require its subcontractors to name it as an “Additional Insured” on the
subcontractor‟s policies. There are a number of different “forms” intended to address
different situations.

Additional Insured (A/I): A person or company not automatically included as an
insured under an insurance policy, but for whom insured status is arranged, usually by
an “additional insured endorsement.”

Adjuster: One who settles insurance claims. An adjuster typically investigates the loss
and determines the extent of coverage. For General Commercial Liability Insurance, the
adjuster coordinates the insured‟s defense and participates in settlement negotiations.
Adjusters may be employees of the insurance company of work for independent
adjusting companies that represent insurers or self-insureds on a contract

Admitted Insurer: An insurer licensed to do business in the state or country in which
the insured exposure is located. For contraction terms, this is frequently referred to as
an “admitted carrier”.

Aggregate: A limit in an insurance policy stating that the most it will pay for all covered
losses sustained during a specified period of time, usually a year. Aggregate limits are
commonly included in liability policies.
basis. Also called “claims adjuster”.

Armstrong Election: Term of art stemming from the case, Armstrong World
Industries, Inc. v. Aetna Casualty & Surety Co. (1996) 45 Cal.App.4th which stands for
the proposition that in a continuous loss/injury setting, wherein multiple consecutive
insurance policies may be triggered, the insured may select a single policy to defend
and indemnify up to that policy‟s limits. When more than one insurer owes a coverage
obligation, the insured is entitled to select a policy to protect them without regard to the
obligations of other insurers. This Armstrong election right makes it clear that
obligations existing between insurers are not the responsibility of the insured. If an
insurer has a duty to defend or indemnify, it must agree to perform these duties without
regard to how another similarly situated insurer may respond. If other insurers also
have these duties, the insured may (but is not obligated to) obtain their participation.
       Sample Armstrong Election Letter

Captive Insurance: A captive insurance company subsidiary designed to cover the
risks of its parent organization. “Single owner” captives are owned by one company,
whereas association captives (also known as “group” or “industry” captives) are owned
by and cover the risks of multiple organizations. Typically, captives retain substantial
portions of each loss and then purchase reinsurance above those levels. Captives
provide an alternative funding mechanism when coverage breadth or capacity in
traditional insurance markets do not meet the insured‟s needs. Also, the insureds in a
captive have direct involvement and influence over the company‟s major operations,
including underwriting, claims management policy, and investment. Bermuda is the

Certificate of Insurance: A document providing evidence that certain general types of
insurance coverage‟s and limits have been purchase by the party required to furnish the

Comprehensive General Liability Insurance (CGL): A standard insurance policy
issued to businesses to protect them against liability claims for bodily injury and
property damage arising out of premises, operations, products, and completed
operations, and advertising and personal injury liability. The CGL policy was introduced
in 1986, and replaced “comprehensive” general liability policy.
Deductible: The amount you have to pay out-of-pocket for expenses before the
insurance company will cover the remaining costs.

Return to: Index

Duty to Defend: The duty to provide the insured (including additional insureds) with a
legal defense, usually a law firm of the insurance carrier‟s choosing, when there is a
“potential” for coverage under an insurance policy. In most cases, the insurance
company‟s duty to defend a subcontractor is broader than the duty to make payments
on a judgment or settlement. Usually, any doubts as to whether coverage exists must
be resolved in the insured‟s favor.

Duty to Indemnify: The duty to make compensation (or pay damages) to an entity,
person, or insured for incurred injury, loss or damage. In practical terms, this is usually
as a result of court order or settlement.

Exclusion: A provision of an insurance policy or bond referring to hazards,
circumstances, or property not covered by the policy.

Indemnity: “Indemnity” is a concept where one party (the “indemnitor”) responds to
liabilities of the other party (the “indemnity”). These liabilities in typically include (1)
costs of defense and (2) payment of judgment or settlement. This gives rise to two
“duties” of the insurance carrier to its insured, the “Duty to Defend” and the “Duty to

Insurance Policy: The entire written contract of insurance. More specifically, it is the
basic written or printed document as well as the coverage forms and endorsements
added to it.

Insurance: A contractual relationship that exists when one party (the insurer), for a
consideration (the premium) agrees to reimburse another party (the insured) for loss to
a specified subject (the risk) caused by designated contingencies (hazards or perils).

Insured: An “insured” is a person (or company) who is protected by an insurance
contract. Although that person may pay for that insurance, frequently other third parties
may also be covered by that policy, usually because those parties are “additional
insureds”. A “named” insured is usually a person (or company) that pays for the

Insurer: The insurance company that undertakes to indemnify for losses and perform
other insurance-related operations.

Liability Limits: The stipulated sum or sums beyond which an insurance company is
not liable for payments due to a third party. The insured remains legally liable above the
Loss Progress Exclusion (or progressive loss exclusion): Montrose decision:
“damage that is continuous or progressively deteriorating throughout several policy
periods is potentially covered by all policies in effect during those periods.

Montrose Decision

Briefly, the Montrose decision changed the definition of Occurrence in the General Liability
policy form from a specific time of loss to a definition that means the loss can continuously and
progressively occur over a period of time. That period of time can be years. For example, if
Insurance Company “A” had a $1,000,000 limit policy covering a contractor for five years, and it
was determined that damage may have occurred during a period of four years of the term, the
Company has a maximum loss exposure of $4,000,000. Prior to Montrose, the maximum would
have been $1,000,000. Further, the decision required all potential insurers to pool their
coverages and defend the insured.

The state of insurance law, in California and perhaps nationally, changed on July 3, 1995. That
was the day the California Supreme Court announced its decision in Montrose Chemical Corp.
V. Admiral Insurance Company, this ratified the appellate level decision that was decided in
February of 1992. In the case of successive policies, Bodily Injury and Property Damage that is
continuous or progressively deteriorating throughout several policy periods is potentially
covered by all policies in effect during those periods.

Return to: Index

OCIP (Owner Controlled Insurance Policy aka Wrap-up Policy): Wrap or "wrap-up"
policies are designed to reduce costs and avoid headaches on major construction
projects. Wrap insurance covers all parties in a construction project under one umbrella
policy. The wrap policy includes the owner, general contractor, sub-contractors and all
other parties involved in the construction project. Wrap-up policies come in two flavors:
owner-controlled (OCIP) and contractor-controlled (CCIP). Either wrap-up policy allows
the owner to spread the risk out among different parties, and provide a single insurance
safety net for every company and individual involved in the project. (also see: Wrap Ins.

Pollution Exclusion: Generally involves what you would commonly refer to as
environmental pollution, hazardous spills, etc. But vague or poorly written language has
let to disputes over such items as yellow jackets, and, most importantly “sick buildings”
and “mold” and other mycotoxins. Parenthetically, under the Toxic Mold Protection Act,
the Department of Health was to provide a report and establish a statutory basis for
mold liability on July 1, 2003.

Reservation of Rights: In the event that the insurance carrier determines that there
may be grounds for it not to cover your indemnity, the insurance company may “reserve
its rights” to not indemnify you or withdraw from your defense. Usually, this comes in the
form of a “reservation of rights” letter, issued soon after you tender the claim.

SIR (Self-Insured Retention)

A dollar amount specified in an insurance policy (usually a liability insurance policy) that
must be paid by the insured before the insurance policy will respond to a loss. SIRs
typically apply to both the amount of the loss and related costs, e.g., defense costs, but
some apply only to amounts payable in damages, e.g., settlements, awards, and
judgments. An SIR differs from a true deductible in at least two important ways. Most
importantly, a liability policy's limit stacks on top of an SIR while the amount of a liability
insurance deductible is subtracted from the policy's limit.

As contrasted with its responsibility under a deductible, the insurer is not obligated to
pay the SIR amount and then seek reimbursement from the insured; the insured pays
the SIR directly to the claimant. While these are the theoretical differences between
SIRs and deductibles, they are not well understood, and the actual policy provisions
should be reviewed to ascertain the actual operation of specific provisions. See also

Subrogation (Waiver of) - From Wikipedia, the free encyclopedia

Subrogation is the legal technique under the common law by which one party,
commonly an insurer (I-X) of another party (X), steps into X's shoes, so as to have the
benefit of X's rights and remedies against a third party such as a defendant (D).
Subrogation is similar in effect to assignment, but unlike assignment, subrogation can
occur without any agreement between I-X and X to transfer X's rights. Subrogation most
commonly arises in relation to policies of insurance, but the legal technique is of more
general application. Using the designations above, I-X (the party seeking to enforce the
rights of another) is called the subrogee. X (the party whose rights the subrogee is
enforcing) is called the subrogor.

In each case, because I-X pays money to X which otherwise D would have had to pay,
the law permits I-X to enforce X's rights against D to recover some or all of what I-X has
paid out. A very simple (and common) example of subrogation would be as follows:

   1. D drives a car negligently and damages X's car as a result.
   2. X, the insured party, has Collision insurance, and claims (i.e., asks for payment) under
      his policy against I-X, his insurer.
   3. I-X pays in full to have X's car repaired.
   4. I-X then sues D for negligence to recoup some or all of the sums paid out to X.
   5. I-X receives the full amount of any amounts recovered in the action against D up to the
      amount to which I-X indemnified X. X retains none of the proceeds of the action against
      D except to the extent that they exceed the amount that I-X paid to X.
If X were paid in full by I-X and still had a claim in full against D, then X could recover
"twice" for the same loss. The basis of the law of subrogation is that when I-X agrees to
indemnify X against a certain loss, then X "shall be fully indemnified, but never more
than fully indemnified ... if ever a proposition was brought forward which is at variance
with it, that is to say, which will prevent [X] from obtaining a full indemnity, or which will
give to [X] more than a full indemnity, that proposition must certainly be wrong."

I-X will normally (but not always) have to bring the claim in the name of X. Accordingly,
in situations where subrogation rights are likely to arise within the scope of a contract
(i.e. in an indemnity insurance policy) it is quite common for the contract to provide that
X, as subrogor, will provide all necessary cooperation to I-X in bringing the claim.

Subrogation is an Equitable Remedy and is subject to all the usual limitations which
apply to equitable remedies.

Although the basic concept is relatively straightforward, subrogation is considered to be
a highly technical area of the law.

       Indemnity insurer's subrogation rights

       An indemnity insurer in fact has two distinct types of subrogation right. Firstly,
       they have the classic type of subrogation used in the example above; viz. the
       insurer is entitled to take over the remedies of the insured against another party
       in order to recover the sums paid out by the insurer to the insured and by which
       the insured would otherwise be overcompensated. Secondly, the insurer is
       entitled to recover from the insured up to the amount which the insurer has paid
       to the insured and by which the insured is overcompensated.             The latter
       situation might arise if, for example, an insured claimed in full under the policy,
       but then started proceedings anyhow against the Tortfeasor, and recovered
       substantial damages.

Therefore, a “Waiver of Subrogation” is a policy statement wherein the Insurer waives
(or relinquishes) their rights to subrogation.

Work Product Exclusion: Insurance company will only pay for costs relating to
subsequent damage, or accidental damage, not to repair defective work. Usually the
language says “property damage to your work or any part of it” or damage to work
performed by the named insured arising out of such work or any portion thereof”.

Return to: Index


SB 800:
The "Right-to-Repair" Law, significantly impacts how construction quality disputes are
defined, processed and resolved. During the era of litigation -- without a clear definition
of a "defect" -- builders struggled to hit a moving target of construction defects. SB 800
created functionality standards that define construction defects, reduced the statutes of
limitations for certain functionality standards and limited causes of action to repairs only.
Most importantly, SB 800 mandated repairs to replace lawsuits. The law allows builders
early access to resolve problems resulting in a decreased number of claims that
devolve into litigation.

If builders and their insurers strive to abide by SB 800's guidelines and observe the
timing and structure of the rules within the law, the potential for early resolution of
claims and greater homeowner satisfaction will ease construction defect dispute
       Go to Right to Repair Act

       Go to SB800 Process Flow Chart

Answer -   From Wikipedia, the free encyclopedia

In the common law, an answer is the first pleading by a Defendant, usually filed and
served upon the plaintiff within a certain strict time limit after a civil complaint or criminal
information or indictment has been served upon the defendant. It may have been
preceded by an optional "pre-answer" motion to dismiss or Demurrer; if such a motion is
unsuccessful, the defendant must file an answer to the complaint or risk an adverse
default judgment.

The answer establishes which allegations (cause of action in civil matters) set forth by
the complaining party will be contested by the defendant, and states all the defendant's
defenses, thus establishing the nature and parameters of the controversy to be decided
by the court.

Case Management Order

       2009 California Rules of Court

       Rule 3.728. Case management order

       The case management conference must be conducted in the manner provided
       by local rule. The court must enter a case management order setting a schedule
       for subsequent proceedings and otherwise providing for the management of the
       case. The order may include appropriate provisions, such as:

       (1) Referral of the case to judicial arbitration or other alternative dispute
       resolution process;

       (2) A date for completion of the judicial arbitration process or other alternative
       dispute resolution process if the case has been referred to such a process;
       (3) In the event that a trial date has not previously been set, a date certain for
       trial if the case is ready to be set for trial;

       (4) Whether the trial will be a jury trial or a nonjury trial;

       (5) The identity of each party demanding a jury trial;

       (6) The estimated length of trial;

       (7) Whether all parties necessary to the disposition of the case have been
       served or have appeared;

       (8) The dismissal or severance of unserved or not-appearing defendants from
       the action;

       (9) The names and addresses of the attorneys who will try the case;

       (10) The date, time, and place for a mandatory settlement conference as
       provided in rule 3.1380;

       (11) The date, time, and place for the final case management conference before
       trial if such a conference is required by the court or the judge assigned to the

       (12) The date, time, and place of any further case management conferences or
       review; and

       (13) Any additional orders that may be appropriate, including orders on matters
       listed in rules 3.724 and 3.727.

Cause of action (aka claim) -      From Wikipedia, the free encyclopedia

In the law, a cause of action (sometimes called a claim) is a set of facts sufficient to
justify a right to sue. The phrase may refer to the legal theory upon which a plaintiff
brings suit (such as breach of contract, battery, or false imprisonment).

To pursue a cause of action, a plaintiff pleads or alleges facts in a complaint, the
pleading that initiates a lawsuit. A cause of action generally encompasses both the legal
theory (the legal wrong the plaintiff claims to have suffered) and the remedy (the relief a
court is asked to grant). Often the facts or circumstances that entitle a person to seek
judicial relief may create multiple causes of action.

The points a plaintiff must prove to win a given type of case are called the "elements" of
that cause of action. For example, for a claim of negligence, the elements are: the
(existence of a) duty, breach (of that duty), proximate cause (by that breach), and
damages. If a complaint does not allege facts sufficient to support every element of a
claim, the court, upon motion by the opposing party, may dismiss the complaint for
failure to state a claim for which relief can be granted.

The defendant to a cause of action must file an "Answer" to the complaint in which the
claims can be admitted, denied, or insufficient information to form a response. The
answer may also contain counterclaims in which the "Counterclaim Plaintiff" states its
own causes of action. Finally, the answer may contain Affirmative Defenses. Most
defenses must be raised at the first possible opportunity either in the answer or by
motion or are deemed waived. A few defenses, in particular a court's lack of subject
matter jurisdiction, need not be plead and may be raised at any time.

(also see complaint)

Return to: Index

Class action - From Wikipedia, the free encyclopedia

In law, a class action or a representative action is a form of Lawsuit where a large
group of people collectively bring a claim to court. This form of collective lawsuit
originated in the United States and is still predominately a US phenomenon, at least the
US variant of it.

Code of Civil Procedure

Civil procedure is the body of law that sets out the rules and standards that courts follow
when adjudicating civil lawsuits (as opposed to procedures in criminal law matters).
These rules govern how a lawsuit or case may be commenced, what kind of service of
process (if any) is required, the types of pleadings or statements of case, motions or
applications, and orders allowed in civil cases, the timing and manner of depositions
and discovery or disclosure, the conduct of trials, the process for Judgment, various
available remedies, and how the courts and clerks must function.

Complaint - From Wikipedia, the free encyclopedia

Under common law, a complaint is a formal legal document that sets out the basic facts
and legal reasons (see: cause of action) that the filing party (the plaintiffs, also known
as the complainants or the claimant) believes are sufficient to support a claim against
another person, persons, entity or entities (the defendants) that entitles the plaintiff(s) to
a remedy (either money damages or injunctive relief). For example, the Federal Rules
of Civil Procedure that govern civil litigation in United States courts provide that a civil
action is commenced with the filing or service of a pleading called a complaint. Civil
court rules in states that have incorporated the Federal Rules of Civil Procedure use the
same term for the same pleading. (also see Cause of Action)
Cross-claim (aka cross-complaint) - From Wikipedia, the free encyclopedia

A cross-claim is a claim brought against a co-party in the same side of a lawsuit. That
is, a plaintiff brings a claim against another plaintiff, or a defendant brings a claim
against another defendant.

In CD litigation claims, it is a common occurrence for the Builder/Developer (cross-
complainant) of a project that has been named as a defendant in a legal action to file a
cross-claim (or cross-complaint) naming the subcontractors that performed work on the
project as cross-defendants.

Defect –

        Patent: A patent defect is defined in California as “a deficiency that is apparent
        by reasonable inspection”. Patent defects are generally observable upon
        completion of a residential or commercial structure or other improvement. The
        term is important in an initial investigation because its impact on statues of
        limitation and repose. For instance, in California, an action seeking damages for
        patent defects must be commenced within four years after the substantial
        completion of the structure or improvement. In an injury to property or person
        occurs during the fourth year, the period is extended by one year after the
        occurrence. In no event, however, is the period extended longer than five years
        after completion. It is important to note that this statute does not apply to any
        owner occupied, single-unit residence.

        Latent: Latent defects are defined as deficiencies that are “not apparent by
        reasonable inspection”. California Code of Civil Procedure 337.15 prescribes a
        10-year period within which actions based upon latent defects must be
        commenced. Unlike 337.1, the limitations period of 337.15 does not apply to
        personal injury or wrongful death caused by latent defects.

Defendant - From Wikipedia, the free encyclopedia

A defendant or defender is any party who is required to answer the complaint of a
Plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally
charged or accused of violating a criminal statute.

A defendant in a civil action usually makes his or her first court appearance voluntarily
in response to a summons, whereas a defendant in a criminal case is often taken into
custody by police and brought before a court, pursuant to an arrest warrant. The actions
of a defendant, and its lawyer counsel, is known as the defense.


Typically filed towards the beginning of a case, before the answer a demurrer is
basically a request filed in court by the defending party in a lawsuit asking the court to
dismiss the lawsuit on the grounds that no legal cause of action exists. (example, you
might file a demurrer if your neighbor sued you for parking on the street in front of her
house. Your parking habits may annoy your neighbor, but the curb is public property
and parking there doesn't cause any harm recognized by the law.) After a demurrer is
filed, the judge holds a hearing at which both sides can make their arguments about the
matter. The judge may dismiss all or part of the lawsuit, or may allow the party who filed
the lawsuit to amend its complaint. In some states and in federal court, the term
demurrer has been replaced by "motion to dismiss for failure to state a claim" (called a
"12(b)(6) motion" in federal court) or similar term.

Deposition (law) - From Wikipedia, the free encyclopedia

In law, a deposition is witness testimony given under oath and recorded for use in
court at a later date. In many countries, depositions are given in courtrooms. In the
United States, they are usually taken elsewhere. In the United States, it is a part of the
discovery process in which litigants gather information in preparation for trial. Some
jurisdictions recognize an affidavit as a form of deposition.

Discovery (law) - From Wikipedia, the free encyclopedia

In law, discovery is the pre-trial phase in a lawsuit in which each party through the law
of civil procedure can request documents and other evidence from other parties or can
compel the production of evidence by using a subpoena or through other discovery
devices, such as requests for production of documents, and depositions.

       Civil Discovery in the United States

       Under the law of the United States, civil discovery is wide-ranging and can
       involve any material which is relevant to the case except information which is
       privileged, information which is the work product of the opposing party, or certain
       kinds of expert opinions. (Criminal discovery rules may differ from those
       discussed here.) Electronic discovery or "e-discovery" is used when the material
       is stored on electronic media.

       In practice, most civil cases in the United States are settled after discovery. After
       discovery, both sides often are in agreement about the relative strength and
       weaknesses of each side's case and this often results in a Settlement which
       eliminates the expense and risks of a trial.


       In California state courts, discovery is governed by the Civil Discovery Act of
       1986 (Title 4 (Sections 2016-2036) of the Code of Civil Procedure), as
       subsequently amended. A significant number of appellate court decisions have
       interpreted and construed the provisions of the Act.
        California discovery requests are not continuing: the responding party only
        needs to respond with the facts as known on the date of the response, and is
        under no obligation to update its responses as new facts become known. This
        causes many parties to reserve one or two interrogatories until the closing days
        of discovery, when they ask if any of the previous responses to discovery have
        changed, and then ask what the changes are. California depositions are not
        limited to one day. A party may only propound thirty-five written interrogatories on
        any other single party, and no "subparts, or a compound, conjunctive, or
        disjunctive question" may be included in an interrogatory; however, "form
        interrogatories" which have been approved by the state Judicial Council do not
        count toward this limit. In addition, no "preface or instruction" may be included in
        the interrogatories unless it has been approved by the Judicial Council; in
        practice, this means that the only instructions permissible with interrogatories are
        the ones provided with the form interrogatories.

Return to: Index

Dismiss / Dismissal - From Wikipedia, the free encyclopedia

In litigation, a dismissal the result of a successful motion to dismiss.

        Motion to dismiss

        A "motion to dismiss" asks the court to decide that a claim, even if true as
        stated, is not one for which the law offers a legal remedy. As an example, a claim
        that the Defendant failed to greet the plaintiff while passing the latter on the
        street, insofar as no legal duty to do so may exist, would be dismissed for failure
        to state a valid claim: the court must assume the truth of the factual allegations,
        but may hold that the claim states no cause of action under the applicable
        substantive law. A claim that has been presented after the statute of limitations
        has expired is also subject to dismissal. If granted, the claim is dismissed without
        any evidence being presented by the other side. A motion to dismiss has taken
        the place of the common law Demurrer in most modern civil practice.

Estoppel - From Wikipedia, the free encyclopedia

Estoppel is a legal doctrine of common law that has many individual rules but that
generally means that any person arguing a legal position to the court should not have
behaved unfairly in the matter. Estoppel complements the requirement of consideration
in contract law. In general estoppel protects a party who would suffer detriment if each
following test is met:

        A second party has done or said something to induce an expectation.
        The first party relied (reasonably) on the expectation ...
        ... and would suffer detriment if that expectation were not met.

Also, unconscionability by the second party has been accepted by courts as another
element sufficient to estop such second party.

Estoppel is a defense that prevents a representor from enforcing legal rights, or from
relying on a set of facts that would give rise to enforceable rights (e.g. words said or
actions performed), generally only if that enforcement or reliance would be unfair to the
representee. Because its effect is to defeat generally enforceable legal rights, the scope
of the remedy is often limited. Note, however, that proprietary estoppel (applicable in
English land law) can be both a sword and a shield and the scope of its remedy is wide.

For an example of estoppel, consider the case of a debtor and a creditor. The creditor
might unofficially inform the debtor that the creditor forgives the debt. Even if such
forgiveness is not formally documented, the creditor may be estopped from changing its
mind and seeking to collect the debt, because that change would be unfair. In the same
way, a landlord might inform a tenant that rent has been reduced, for example, if there
was construction or a lapse in utility services. If the tenant relies on this notice, the
landlord could be estopped from collecting the full rent.

Estoppel is closely related to the doctrines of waiver, variation, and election and is
applied in many areas of law, including insurance, banking, employment, international
trade, etc. In English law, the concept of legitimate expectation in the realm of
administrative law and judicial review is estoppel's counterpart in public law, although
subtle but important differences exist.

This term appears to come from the French estoupail (or a variation), which meant
"stopper plug", referring to placing a halt on the imbalance of the situation. The term is
related to the verb "estop" which comes from the Old French term estopper, meaning
"stop up, impede". Note the similarity between the English terms "estop" and "stop".

Et al.

Shortened form of the Latin phrase et alii meaning „and others‟. Used similarly to et
cetera („and the rest‟), to stand for a list of names.

Interrogatories - From Wikipedia, the free encyclopedia
In law, interrogatories (also known as Requests for Further Information) are a formal
set of written questions proposed by one litigant and required to be answered by an
adversary, in order to clarify matters of evidence and help to determine in advance what
facts will be presented at any trial in the case.

Negligence - From Wikipedia, the free encyclopedia

It can be generally defined as conduct that is culpable because it falls short of what a
reasonable person would do to protect another individual from foreseeable risks of harm

Through civil litigation, if an injured person proves that another person acted negligently
to cause his injury, he can recover damages to compensate for his harm. Proving a
case for negligence can potentially entitle the injured plaintiff to compensation for harm
to their body, property, mental well-being, financial status, or intimate relationships.
However, because negligence cases are very fact-specific, this general definition does
not fully explain the concept of when the law will require one person to compensate
another for losses caused by accidental injury. Further, the law of negligence at
common law is only one aspect of the law of liability. Although resulting damages must
be proven in order to recover compensation in a negligence action, the nature and
extent of those damages are not the primary focus of negligence cases.

       1 Elements of negligence claims
            o 1.1 Duty of care
            o 1.2 Breach of duty
            o 1.3 Factual causation
            o 1.4 Legal causation or remoteness
            o 1.5 Damage
       2 Damages
       3Criminal negligence

    “Active Negligence”: Active negligence refers to the defendants direct
    participation in the conduct that caused the injury or damage (Example: leaving a
    ladder where a worker could trip over it, or leaving an exposed nail where someone
    could step on it.)

    “Passive Negligence”: Passive negligence generally involves vicarious liability or
    the failure to perform a duty of care owed to the plaintiff (Example, failing to notice
    the ladder lying where a worker could trip over it).

Return to: Index

Pleading - From Wikipedia, the free encyclopedia
In law as practiced in countries that follow the English models, a pleading is a formal
written statement filed with a court by parties in a civil action, such as a Complaint, a
Demurrer, or an answer. A complaint is the first pleading filed by a Plaintiff which
initiates a lawsuit. A complaint sets forth the relevant allegations of fact that give rise to
one or more legal causes of action along with a prayer for relief. In some situations, a
complaint is called a petition, in which case the party filing it is called the petitioner and
the other party is the respondent. A demurrer is a pleading filed by a Defendant which
challenges the legal sufficiency of a complaint; an answer is a pleading which admits or
denies the specific allegations set forth in a complaint and constitutes a general
appearance by a defendant. A defendant may also file a cross-complaint as well as
bringing other parties into a case by the process of impleader.

Request for admissions - From Wikipedia, the free encyclopedia

A request for admissions (sometimes also called a request to admit) are a set of
statements sent from one litigant to an adversary, for the purpose of having the
adversary admit or deny the statements or allegations therein. Requests for admissions
are part of the discovery process in a civil case. In the U.S. federal court system, they
are governed by Rule 36 of the Federal Rules of Civil Procedure.

       Basic structure

       A request for admissions is a list of questions which are similar in some respects
       to interrogatories, but     different in form and purpose. Each "question" is in
       the form of a declarative statement which the answering party must then either
       admit, deny, or state in detail why s/he can neither admit nor deny the
       truthfulness of the statement (e.g. for lack of knowledge, etc.). For example, in a
       case involving an automobile accident, the plaintiff might include in his request a
       statement such as "Defendant Smith was driving a Blue Dodge Caravan on the
       morning of the accident". Under Rule 36(a)(5), the answering party may also
       object to the request, and state the reason for his objection, so long as the
       objection is not solely because the request would present a genuine issue of fact
       for trial.

       Rule 36(a)(1) limits the types of requests to be limited to (A) facts, the application
       of law to fact, or opinions about either; and (B) the genuineness of any described
       documents. However, the rule places no limits on the amount of requests which
       may be made of either litigant. State court rules, however, may be more strict
       than this.

       Purpose of procedure

       Requests for admissions help narrow the scope of the controversy by getting
       certain admissions or denials of issues relevant to the lawsuit on record before a
       trial takes place. While evidence introduced at trial can be rebutted, admissions
       which are on record must be taken as true unless the judge permits them to be
       withdrawn or amended. Thus, requests for admission can obviate the need for
       presentation of some evidence and make the actual trial shorter and more

Settlement (litigation) - From Wikipedia, the free encyclopedia

In law there are several main meanings of the word settlement. The most common
meaning refers to when the parties to a dispute (both disputes that are being litigated
before the courts, and disputes where court action has not been started) reach an
agreement as to the case, which is said to 'settle' the claim.

A settlement, a well as dealing with the dispute between the parties is a contract
between those parties, and is one possible (and common) result when parties sue (or
contemplate so doing) each other in civil proceedings. The plaintiff(s) and defendant(s)
identified in the lawsuit can end the dispute between themselves without a trial. Justice
is not a central issue here, merely power: often one party has little option but to submit
to the will of the other.

The contract is based upon the bargain that a party foregoes its ability to sue (if it has
not sued already), or to continue with the claim (if the plaintiff has sued), in return for the
certainty written into the settlement. The courts will enforce the settlement: if it is
breached, the party in default could be sued for breach of that contract. In some
jurisdictions, the party in default could also face the original action being restored.

The settlement of the lawsuit defines legal requirements of the parties, and is often put
   Resolution Without Trial
                                    in force by an order of the court after a joint
          o Default judgment        stipulation by the parties. In other situations (as
          o Summary judgment        where the claims have been satisfied by the
          o Voluntary dismissal     payment of a certain sum of money) the plaintiff and
          o Involuntary dismissal   defendant can simply file a notice that the case has
                                    been dismissed.

                                         The majority of cases are decided by a settlement.
Both sides (or the side with fewer monetary resources) often have a strong incentive to
settle to avoid the costs (such as legal fees, finding expert witnesses, etc.), associated
with a trial, particularly where a trial by jury is available. Generally, one side or the other
will make a settlement offer early in litigation. The parties may hold (and indeed, the
court may require) a settlement conference, at which they attempt to reach such a

In controversial cases, it may be written into a settlement that both sides keep its
contents and all other information relevant to the case confidential.
Settlement conference - From Wikipedia, the free encyclopedia

A settlement conference is a meeting between opposing sides of a lawsuit at which the
parties attempt to reach a mutually agreeable resolution of their dispute without having
to proceed to a trial. Such a conference may be initiated through either party, usually by
the conveyance of a settlement offer; or it may be ordered by the court as a precedent
(preliminary step) to holding a trial. Each party, the plaintiff and the defendant, is usually
represented at the settlement conference by their own Counsel or attorney.

Matters discussed in a settlement conference are confidential, and cannot be introduced
as evidence in court. All such information would be considered privileged or hearsay.
There is one exception to this rule: statements of fact made by criminal defendants in
settlement discussions over disputed civil claims asserted by government agencies are
admissible in the criminal case.

Settlement offer - From Wikipedia, the free encyclopedia

A settlement offer or offer to settle is a term used in a civil lawsuit to describe a
communication from one party to the other suggesting a settlement - an agreement to
end the lawsuit before a judgment is rendered.

Attorneys typically negotiate terms of a settlement on behalf of their clients, so a
settlement offer is usually conveyed by one party's attorney directly to the other party's

The objective of settlement offers is to promote the settlement of cases out of court,
thus freeing up the resources of the court system. In the US, the evidence of settlement
offers within the context of litigation is generally inadmissible in a court of law.

Special Master

A special master is an "adjunct" to a federal court, and Rule 53 of the Federal Rules of
Civil Procedure allows a federal court to appoint a master, with the consent of the
parties, to conduct proceedings and report to the Court. A special master is appointed
by a judge to oversee one or more aspects of litigation. They may be appointed pre-trial,
during trial, or post-trial. The role of the special master (who is frequently, but not
necessarily, an attorney) is to supervise those falling under the order of the court to
make sure that the court order is being followed, and to report on the activities of the
entity being supervised in a timely matter to the judge or the judge's designated

Judges appoint special masters for many reasons, and sometimes these reasons
overlap. For example, in a system where judges are usually inundated with cases,
special masters may be simply appointed pre-trial in order to free the judge to spend
more time on other cases. In construction defect litigation, the special master manages
pre-trial discovery and facilitates settlement before trial.

Summons (aka Judicial Summons)                -     From Wikipedia, the free encyclopedia

A judicial summons is addressed to a defendant in a legal proceeding. Typically, the
summons will announce to the person to whom it is directed that a legal proceeding has
been started against that person, and that a file has been started in the court records.
The summons announces a date by which the defendant(s) must either appear in court,
or respond in writing to the court or the opposing party or parties.

In most U.S. jurisdictions, the service of a summons is in most cases required for the
court to have personal jurisdiction over the party who is being "haled" into court
involuntarily. The process by which a summons is served is called service of process.
The form and content of service in the federal system is governed by Rule 4 the Federal
Rules of Civil Procedure, and the rules of many state courts are similar. The federal
summons is usually issued by the clerk of the court. In many states the summons may
be issued by an attorney, though some states use filing as the means to commence an
action and the summons must be filed in those cases in order to be effective. Other
jurisdictions may only require that the summons be filed after it is served on the

Return to: Index


    1. (formal) To offer, to give.
          o tender one‟s resignation

With regard to CD litigation documents, Developer‟s counsel “tenders” (gives) notice of
defense obligations owed by the Subcontractor to the Developer by sending a letter to
the Subcontractor.

Plaintiff - From Wikipedia, the free encyclopedia

A plaintiff also known as a claimant or complainant, is the party who initiates a lawsuit (also
known as an action) before a court. By doing so, the plaintiff seeks a legal remedy, and if
successful, the court will issue judgment in favor of the plaintiff and make the appropriate court
order (eg. an order for damages).

Liability: Any legally enforceable obligation. Within the context of insurance, the
obligation to pay a monetary award for injury or damage caused by one‟s negligence or
statutorily prohibited action.

Negligence: Negligence is a theory of liability where the plaintiff can recover damages
for proving that the defendant breached a standard of care owed to plaintiff, and which
caused the plaintiff damage.

       “Active Negligence”: Active negligence refers to the defendants direct
       participation in the conduct that caused the injury or damage (Example: leaving a
       ladder where a worker could trip over it, or leaving an exposed nail where
       someone could step on it.)

       “Passive Negligence”: Passive negligence generally involves vicarious liability
               or the failure to perform a duty of care owed to the plaintiff (Example,
       failing to notice the ladder lying where a worker could trip over it).

Strict Liability: Strict Liability is theory of recovery that does not depend on proving
negligence or intent to harm, but instead is based on the breach of an absolute duty to
make something safe (e.g., a product). Under California law, production homes are
considered a “product.” Strict liability does not allow recovery for solely “economic
losses”, e.g., the loss of value or the cost of repair or replacement of the product when
there has been no claim of personal injury or property damage.

Return to: Index