Civil Litigation Midterm

Civil Litigation

resolution of disputes between private parties thru court system

Plaintiff

aggrieved party

Defendant

party against whom the complaint is filed

What paralegals CAN do

research/writing, case management, document prep, client and witness communication, trial prep, draft pleadings

What paralegals CANT do

provide legal advice, sign legal documents, represent clients in court, set legal fees, negotiate settlements

Stages of a lawsuit

1. info gathering 2. pleading 3. discovery and motion (pre-trial) 4. trial and post trial proceedings

Legal remedies

money damages, compensatory damages, punitive damages

Equitable remedies

injunction relief and declaratory relief

Punitive damages

meant to punish and deter wrongdoing

Litigation chart

diagram that sets out what needs to be proven/disproven and facts/evidence

Elements of litigation chart

1. elements of claims 2. sources of proof 3. informal fact investigation 4. formal discovery

Elements of claims

items you have to prove to establish claim

Sources of proof

client, exhibits, witnesses, experts, opposing party

Goals of client interview

1. determine clients goals 2. determine whether representation is appropriate 3. start to formulate plan 4. establish a rapport

Informal investigation

before or during litigation, conducted through interviewing witnesses/research/collecting public records, outside of court system

Formal Investigation

during discovery, conducted through depositions/interrogations/requests for admissions, follows court rules

Subpoena

written court order compelling non-party to appear or produce documents

Contingency Fee

lawyer receives a certain percentage obtained by client

Hourly Fee

lawyer bills the time spent on a case

Fixed flat Fee

lawyer receives a predetermined sum as a fee regardless of how much work is expended

Retainers

amount a client pays at beginning of representation to ensure payment

Attorneys lien

claim by lawyer on any judgement/recovery obtained

Costs

out-of-pocket expenses incurred by lawyers in course of representation

Steps to develop Litigation Plan

1. reevaluate clients objectives and cost restraints 2. define objectives 3. develop theory of the case 4. plan pleadings 5. plan discovery 6. plan dispositive motions 7. plan settlement approach 8. develop lit. timetable

Demand Letters

used to notify other side of your intent to sue unless settlement is reached

Personal jurisdiction

power of court to bring party before it and make a decision binding on such a person

Due process

constitutional doctrine requiring fairness in proceedings

Long-arm Statute

state laws that enable court to execute jurisdiction over a defendant who is outside geo boundaries of court

General subject matter jurisdiction

power to hear and decide most controversies involving legal rights and duties

limited subject matter jurisdiction

authority to hear only particular kinds of cases (juvenile, probate, domestic relations, etc.)

Federal question jurisdiction

provides that "district courts shall have original jurisdiction of all civil actions arising under constitution, laws or treaties of US"

Diversity jurisdiction

power of federal court to hear controversies between citizens of different states

Requirements of federal question jurisdiction

1. based on federal law 2. claim must be substantial

Requirements of diversity jurisdiction

1. complete diversity of citizenship 2. jurisdictional amount (exceed $75k) 3. legal reps citizenship is controlling

Complaint

document filed by aggrieved party to commence litigation

Requirements of a complaint

1. statement showing subject matter jurisdiction 2. statement of claims showing plaintiff is entitles to relief 3. statement of relief requested

Summons

notice that accompanies complaint, commands defendant to appear and defend action within certain time period

Requirements of summons

1. name of court and parties 2. directed to defendant 3. state name and address of plaintiffs attorney 4. time defendant must appear 5. notify of failure to appear will result in default judgement 6. signed by clerk 7. bear courts seal