CH 5: Court Procedures

pro se representation

parties are allowed to represent themselves in court

Procedural rules

provide a framework for every dispute and specify what must be done at each stage of the litigation process.

Federal Rules of Civil Procedure (FRCP)

All civil trials held in federal district courts are governed by the:

pretrial, trial, and posttrial

Broadly speaking, the litigation process has three phases:

States in a typical lawsuit

1. accident/breech of contact

2. party hires an attorney, who files a complaint and notifies (serves) the defendant

3. defendants attorney files an answer or a motion to dismiss

4. pretrial discovery and more motions, pretrial conference

5. trial and perhaps posttrial motions and/or an appeal

200, 800

In the United States, legal fees range from $___ to $___ per hour or even higher.

court filing fees, travel expenses, and the costs of expert witnesses and investigators.

The client normally must also pay various expenses related to the case (called “out-of-pocket” costs), such as: (3)

fixed fees

may be charged for the performance of such services as drafting a simple will.

hourly fees

may be charged for matters that will involve an indeterminate period of time. The amount of time required to bring a case to trial, for instance, probably cannot be precisely estimated in advance.

contingency fees

are fixed as a percentage (usually 33 percent) of a client’s recovery in certain types of lawsuits, such as a personal-injury lawsuit. If the lawsuit is unsuccessful, the attorney receives no fee, but the client will have to reimburse the attorney for all out-of-pocket costs incurred.

resolution

Once an attorney has been retained, the attorney is required to pursue a ___ of the matter on the client’s behalf.

Pretrial litigation

___ process involves the filing of the pleadings, the gathering of evidence (called discovery), and possibly other procedures, such as a pretrial conference and jury selection.

pleadings

Formal statements made by the plaintiff and the defendant in a lawsuit that detail the facts, allegations, and defenses involved in the litigation

complaint and answer

pleadings involve:

pleadings

The ___ inform each party of the other’s claims, reveal the facts, and specify the issues (disputed questions) involved in the case

complaint

The pleading made by a plaintiff alleging wrongdoing on the part of the defendant; the document that, when filed with a court, initiates a lawsuit.

jurisdiction, legal theory, and remedy

What is included in the complaint? (3)

service of process

The delivery of the complaint and summons to a defendant.

summons

a notice requiring the defendant to appear in court and answer the complaint

waiver of formal service

defendants who agree to waive formal service of process receive additional time to respond to the complaint (sixty days, instead of twenty days) This thereby reduce associated costs and foster cooperation between the parties.

answer

Procedurally, a defendant’s response to the plaintiff’s complaint.

affirmative defense

A response to a plaintiff’s claim that does not deny the plaintiff’s facts but attacks the plaintiff’s legal right to bring an action. An example is the running of the statute of limitations or negligence.

counterclaim

A claim made by a defendant in a civil lawsuit that, in effect, sues the plaintiff.

motion

A procedural request or application presented by an attorney to the court on behalf of a client.

pretrial motions

A written or oral application to a court for a ruling or order, made before trial.

pretrial motions

include the motion to dismiss, the motion for judgment on the pleadings, and the motion for summary judgment, etc

motion for summary judgment

A motion requesting the court to enter a judgment without proceeding to trial. The motion can be based on evidence outside the pleadings and will be granted only if no facts are in dispute and the only question is how the law applies to the facts.

motion to compel discovery

motion asking the court to force the nonmoving party to comply with a discovery request

motion for judgment on the pleadings

A motion by either party to a lawsuit at the close of the pleadings requesting the court to decide the issue solely on the pleadings without proceeding to trial. The motion will be granted only if no facts are in dispute and the sole issue to be resolved is a question of law.

motion to dismiss

A pleading in which a defendant asserts that the plaintiff’s claim fails to state a cause of action (that is, has no basis in law) or that there are other grounds on which a suit should be dismissed.

de novo review

to review the issue anew, as if the lower court had not ruled on the issue

affidavit

A written voluntary statement of facts, confirmed by the oath or affirmation of the party making it and made before a person having the authority to administer the oath or affirmation.

discovery

A phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial.

deposition

is sworn testimony by a party to the lawsuit or by any witness, recorded by an authorized court official.

impeach

To challenge the credibility of a person’s testimony or attempt to discredit a party or witness.

interrogatories

written questions for which written answers are prepared and then signed under oath

interrogatories

The main difference between interrogatories and written depositions is that ___ are directed to a party to the lawsuit (the plaintiff or the defendant), not to a witness.

30

Parties usually have ___ days to respond to interrogatories

after discovery and before trial

pretrial conference occurs:

voir dire

The jury selection process is known as

opening statements

A statement made to the jury at the beginning of a trial by a party’s attorney, prior to the presentation of evidence. The attorney briefly outlines the evidence that will be offered and the legal theory that will be pursued.

relevant evidence

is evidence that tends to prove or disprove a fact in question or to establish the degree of probability of a fact or action

hearsay

is testimony someone gives in court about a statement made by someone else who was not under oath at the time. Literally, it is what someone heard someone else say.

direct examination

The examination of a witness by the attorney who calls the witness to the stand at trial to testify on behalf of the attorney’s client.

cross-examination

The questioning of an opposing witness during a trial.

expert witness

is a person who, by virtue of education, training, skill, or experience, has scientific, technical, or other specialized knowledge in a particular area beyond that of an average person; these are the only witness’s that may speculate.

motion for a judgment as a matter of law

a party’s request that the judge enter a judgment in their favor before the case is submitted to a jury because the other party has not presented sufficient evidence to support the claim. The state courts refer to this request as a motion for a directed verdict.

rebuttal

The refutation of evidence introduced by an adverse party’s attorney. offers additional evidence that refutes the defendant’s case.

rejoinder

The defendant’s answer to the plaintiff’s rebuttal. Refutes the evidence put forth in the rebuttal

closing arguments

An argument made at a trial after the plaintiff and defendant have rested their cases. Closing arguments are made prior to the jury charges.

verdict

formal decision made by the jury

motion for new trial

A motion asserting that the trial was so fundamentally flawed (because of error, newly discovered evidence, prejudice, or other reason) that a new trial is necessary to prevent a miscarriage of justice.

motion for judgement n.o.v.

A motion requesting the court to grant judgment in favor of the party making the motion on the ground that the jury verdict against them was unreasonable and erroneous. non obstante veredicto

appellate brief

to file an appeal, the party submits an

remand

send back the case to the trial court for further proceedings consistent with its opinion on the matter.

affirm (part or whole), reverse (part or whole), remand, or modify

what are the decisions an appellate court can make

writ of execution

is an order directing the sheriff to seize and sell the defendant’s nonexempt assets, or property (certain assets are exempted by law from such actions). The proceeds of the sale are then used to pay the damages owed, and any excess proceeds are returned to the defendant. Alternatively, the nonexempt property itself could be transferred to the plaintiff in lieu of an outright payment.

fixed fees

examples of ___: documents, specific profit, will packets

retainers

lump sum paid upfront for legal services to get things started; used by criminal defense attorneys and divorce; 20-50 thousand dollar retainers are normal; puts your money into an account and slowly takes it out

petition

what is the word used in TX for the federal word complaint

citation

state word for summons

sheriff, constable, or process server

the defendant can be served by:

plaintiff wins by default

if the defendant does not answer within the time limit after service:

affirmative defenses

even if what the plaintiff claims is true, there is an alternate reason why they cannot win (self defense, etc.)

deposition

what is the ONLY tool that can be used to get a sworn testimony of a witness?

pretrial conference

attorneys will meet with the judge before the trial to agree on the manner in which the trial will be conducted; limits issues; establishes ground rules

7th

the ___ amendment gives the right to a trial by jury in federal court if the amount in controversy exceeds $20 in a criminal case (most states also have a similar constitutional guarantee)

REQUEST JURY

in state court, the 7th amendment applies, but a party MUST:

challenge (strike) for cause

shows cause for juror to be struck for preconceived bias or base; unlimited causes; attorneys craft questions to test

peremptory challenge (strike)

striking a juror without a reason; limited amount; don’t have to state a reason unless questioned then must prove gender/race neutral

relevant, probative value, and hearsay

what are the 3 rules of evidence

relevant evidence

can make something more or less relevant

admissible

not all evidence is admissible

probative value

proof value

probative value

even if the evidence is relevant, the ___ of it must outweigh the prejudicial affect it might have (ex photos of OJ simpson murder

cumulative

when everyone says the same thing people tend to believe it more

cumulative

even if evidence is relevant, it cannot be ___.

hearsay

any testimony given in court about a statement made by someone out of court; witness on stand repeating what someone else said

inadmissible

hearsay is generally ___, as the jury loses the ability to cross examine and gauge credibility

dying declaration

what is one notable exception to the hearsay rule?

party with the burden of proof (plaintiff)

___ goes first on all parts of the trial

opening statements

road map of what the just will hear

direct examination

goal is to get the witness talking and telling their story

cross examination

goal is to find a hole in the witness’s story

redirect examination

goal is to try and rehabilitate the witness

civil

witnesses can only be recross examined in __ cases