10 Common Litigation Mistakes Civil Litigation Attorneys Make

Civil litigation attorneys often call upon their peers to share expertise and guidelines for civil litigation practices, specifically highlighting common litigation mistakes. In a recent presentation on this topic, I chose to focus on frequent litigation mistakes that occur in motion proceedings within Civil Independent Calendar departments. A notable litigation mistake involves underestimating the significance of motions in civil cases. These motions, more prevalent than trials, play a vital role in preparing cases for resolution and often determine case outcomes based on litigation mistakes.

I initially listed the mistakes from most to least common, but later reordered them to emphasize the most detrimental litigation mistakes first. The key litigation mistakes include:

1. Inadequate Evidence Presentation

A critical litigation mistake involves failing to present all necessary admissible evidence when supporting or opposing a motion. This is especially true for various motions, including summary judgment and anti-SLAPP, where overlooking this aspect can be a significant litigation mistake. As a lawyer, I realized that prioritizing supporting documents like declarations over the brief itself helps avoid this litigation mistake. This realization marked a reversal of my earlier practice.

2. Insufficient Notice and Fact Statements For Motions

Providing proper notice and a separate statement of undisputed facts are mandatory for summary adjudication. Not meeting these requirements often leads to the denial of the motion, a common litigation mistake.

3. Resisting Discovery in Summary Judgments

A frequent litigation mistake involves attempting to obtain summary judgment while resisting discovery sought by the opposition. This can lead to the motion’s denial or postponement, as the Code of Civil Procedure mandates.

4. Improper Response to Discovery Requests

Many cases involve a crucial litigation mistake when parties miss deadlines, fail to verify responses under oath, or don’t respond to discovery requests at all. This leads to waived privileges or judgments against non-responsive parties, a preventable litigation mistake.

5. Mixing Weak and Strong Claims or Defenses

Including weak claims or defenses with strong ones is a litigation mistake that can undermine the credibility of the latter. Focusing on the stronger elements is essential to avoid this litigation mistake.

6. Not Providing Separate Statements for Discovery Disputes

A litigation mistake occurs when someone moves to compel discovery responses without providing a separate statement detailing each disputed request. This helps the court efficiently resolve disputes and avoids the litigation mistake of an unclear presentation.

7. Neglecting Proper Procedure for Monetary Sanctions

A common litigation mistake in discovery motions involves failing to provide proper notice and evidence for the requested sanction amount. Without adhering to these requirements, sanctions are often denied, reflecting a critical litigation mistake.

8. Overuse of Demurrers

Frequently filing demurrers in most cases is a litigation mistake, as they are often overruled. Recognizing the merit of a demurrer before filing is crucial to avoid this litigation mistake.

9. Inadequate “Meet and Confer” Before Discovery Motions

A notable litigation mistake involves not engaging in a meaningful “meet and confer” process before filing discovery motions. Focusing on resolving disputes rather than mere posturing is key to avoiding this litigation mistake.

10. Failing to Provide Necessary Documents for Ex Parte Relief

One of the most common litigation mistakes in ex parte applications involves not including all required documents, particularly the declaration establishing the need for relief. The absence of these documents often results in the denial of substantive relief requests, a preventable litigation mistake.

Additionally, adhering to Rule 3.1332, which requires supporting declarations, is advisable when requesting trial continuances. Ignoring this rule can be a litigation mistake, especially for opposed continuances. Even though courts usually grant agreed-upon continuances without strict adherence to this rule, it’s better to comply fully.