Chapter 5: Court Procedures

What are the three stages of Litigation?

1. Pretrial
2. Trial
3. Postrial

What fees can a lawyer charge?

1. Fixed Fee.
2. Hourly Fee. (Civil Cases)
3. Contingency Fee. (A percentage of what you win in the court case, 25%-33%).

Settlement Considerations

The amount of resources an attorney will spend on a given case is affected by:
The time and funds of the client.
Strength of a client's case.
The defendant's ability to pay the damages sought.

Pretrial Litigation Process

Pretrial litigation process consists of filing the pleadings, gathering of evidence (called discovery), and completing other procedures such as jury selection.

Pleadings

Formal (written) statements made by the plaintiff and the defendant in a lawsuit that detail the facts, allegations, and defenses involved in the litigation.
(the documents that start the lawsuit, what the lawyer files to start the case).

The Plaintiff's Complaint

Filed by the plaintiff is a short and conceit statement made by the plaintiff which is part of the pleadings.

What must the plaintiff's complaint contain?

Must contain short and concise statements or allegations concerning the following:
1. Jurisdiction (Subject-matter and Personal).
2. Legal Theory. (Facts establishing the basis for the relief sought, Establish the legal theory behind the complaint)
3. Remedy. (Equitable or Monetary)

Service of Process

The defendant must be formally notified of the lawsuit.
The plaintiff must deliver—or serve—a copy of the complaint and a summons to the defendant.
The plaintiff must have proof that the defendant has received the complaint and summons.
Default judgement for plaintiff, if defendant does not answer.

Acceptable Means of Service of Process

-An individual defendant may be served at his residence or at his principal place of business;

-A corporate defendant may be served by serving an officer or registered agent, designated for the purpose of receiving service (the registered agent is the person you serve to a corporation).

-A partnership defendant may be served by serving any (general) partner. (Any of the parenters can serve each other).

A court may not exercise jurisdiction over a defendant until it has proof that the defendant was properly served.

Default Judgment

If the defendant does not answer within the time allotted by the applicable rules, the plaintiff may seek a default judgment. (A request by the plaintiff lawyer that says give us what we ask for in the lawsuit and the court can give the plaintiff what they want).

The Answer

Is the defendant's response to the allegations stated in the plaintiff's complaint.
In the answer, the defendant must specifically admit or deny each allegation in the complaint.

Defendant's Answer can also Include:

Affirmative Defenses: Burden is on defendant to introduce proof. (statute of limitations, someone waits too long to serve you).
Counterclaims: Defendant sues plaintiff, and the plaintiff answers by filing a Reply. (Reply is when the defendant can sue the plaintiff them back).

Dismissals and Judgments before Trial: (Pre Trial)

Motion: A procedural request submitted to the court by an attorney on behalf of her or his client.

What are the three Pretrial Motions?

1. Motion to Dismiss
2. Motion for Judgement on the pleadings
3. Motion for Summary Judgement.

Motion to Dismiss

A motion (normally filed by the defendant) that asks the court to dismiss the case for a specified reason, such as lack of personal jurisdiction or failure to state a claim.

Motion for Judgment on the Pleadings:

A motion by either party (usually the plaintiff) asking the court to enter judgment in his or her favor based on the pleadings because there are no facts in dispute only a question of law remains.
(The plaintiff can say the defendants answer is not good and if the court passes this motion it dismisses the case).

Motion for Summary Judgement

A motion that is right before trial (after examining all the pretrial evidence) asking the court to enter a judgment in his or her favor without a trial.

Discovery

The process of obtaining information from the opposing party or from witnesses prior to trial.
(A lawyer gathers information prior to trial so there can be no surprises in the court case as long as the information is relevant).

Discovery Rules

Generally, discovery is allowed regarding any matter that is relevant to the claim or defense of any party.

Discovery can involve

Depositions.
Interrogatories.
Requests for Admission.
Requests for Documents, Objects, or Entry.
Requests for Examination.

Depostions

Sworn testimony prior to trial, recorded by a court reporter (and often by videotape) of the parties and other key witnesses. (your opportunity to bring in sworn statements from the other party). (in person)
Admissible in court as evidence or for impeachment purposes.

Interrogatories

Written questions related to the subject matter of the lawsuit that must be answered under oath.
(If the other party lives far away you can send them written questions.

You can do both depositions or interrogatories.

Requests for Admission

Questions to the responding party phrased in an "admit" or "deny" format. (you can have someone admit what has happened so you don't have to prove in court something that happened).
Helps narrow the scope of issues to be litigated at trial.

Addtitional Discovery Tools

Requests for Examination of Documents (text messages)
Examination of Objects.
Entry upon Land.

Electronic Discovery

The federal rules and most state rules now allow for the parties to obtain electronic "data compilations." (text messages, twitter)
A court can order your Social Media Account (Facebook, Twitter, Instagram, etc.) to be turned over in Discovery.

Pretrial Conference

A judge will typically schedule one or more conferences (or hearings) before trial to resolve procedural matters and to narrow the issues for trial.
Usually an informal discussion between the judge and opposing parties.

Right to Jury

The right to a jury trial is guaranteed by the Seventh Amendment to the U.S. Constitution. (in nc if you want a jury trial you have to ask for it).
In many states and in federal courts, one of the parties must request a jury.
Most cases are tried without juries.

Bench Trial

A trial without a jury is called a bench trial and the trial judge decides all questions of fact and law.

Jury Trial

In a jury trial, the judge decides questions of law, but the jury decides all questions of fact(If the light was green, where someone was) (including the amount of damages due the plaintiff).

Jury Selection (Voir Dire)

In most jurisdictions, attorneys for the plaintiff and defendant question prospective jurors to determine bias or connection with a party in the case.
The lawyers only chance to talk to and ask questions whether or not to keep you in the jury. Can only kick off 6 people
Jurors can be dismissed peremptorily (no reason) or for cause (bias).
Prospective jurors cannot be excluded by the use of discriminatory challenges such as those based on racial criteria or gender.

Opening Statements

Are given by both attorneys to set forth the facts that they expect to prove during the trial. (Plaintiff and Defendant then present their "Case in Chief.") (to tell them what the case is about about)

Rules of Evidence

Are those created by the court to ensure that any evidence presented during a trial is fair and reliable.

Relevant Evidence

proves or disproves a fact in question or to establish the degree of probability of a fact or action.
You can only put on evidence that is relevant to the case to prove a fact or action

Hearsay

Is testimony given in court about a statement made by someone else who was not under oath at the time of the statement. You can only testify what you directly saw or directly heard. You can't testify to what someone else said.

Examination of Witenesses

The attorneys question each witness as follows:
1. Direct Examination.
2. Cross-Examination.
3. Redirect Examination and Recross-Examination.

Expert Witnesses

The plaintiff and the defendant may present testimony from expert witnesses
Person who because of special training and experience is allowed to offer opinion testimony in legal trials.

Motion for Judgment as a Matter of Law/Directed Verdict:

At the close of the Plaintiff's evidence, the Defense can make a motion for the judge to take the decision out of the jury's hands and direct a verdict for defendant because the plaintiff has presented no evidence to support his/her claim. (the defendant can say that the plaintiff didn't give good evidence, so the defendant does not present their evidence).

Defendant's Evidence:

The defendant's attorney presents the evidence and witnesses for the defendant's case.

Witnesses

Are called and examined by the defendant's attorney and then cross-examined by the plaintiff's attorney.

Closing Arguments

After both sides present their cases, the attorneys make their closing arguments by summarizing the facts and evidence and telling their client's story in the most compelling way possible.
(where you present your final statement to the jude/jury).
Closing arguments are presented even if the trial was not heard by a jury.

Standard of proof in a civil case

The standard of proof in most civil cases is a preponderance of the evidence (the plaintiff only needs to show that her factual claim is more likely to be true than the defendant's). (51% (plaintiff) to 49% (defendant)).
The standard of proof in criminal trial is higher because the prosecution must prove its case beyond a reasonable doubt.

Verdict

After deliberation, the jury delivers its findings (verdict).
The verdict specifies the jury's findings and liability.
Jury can award money damages in a civil case—or prison in a criminal case.

Post Trial Motion

After the jury reaches a verdict, either party can make a post trial motion that asks the trial court to alter or disregard the jury's verdict or to order a new trial.

Motion for New Trial

A motion asserting that the trial was so fundamentally flawed that a new one is required. (Claims that the trial was fundamentally flawed that you need to give them a new trial, rarely given). The reasons for this motion include:
Error by the trial judge.
Newly discovered evidence.
Prejudice.

Motion for Judgment N.O.V. ("non obstante veredicto"):

A motion asking the court to enter judgment as a matter of law in the defendant's favor, despite the jury's verdict—as a matter of fact—in the plaintiff's favor. (where the judge overrule the jury's verdict)

The Appeal

A party may appeal the jury's verdict or any legal issue, motion, or court ruling during the trial.
Appellants must have legitimate grounds for appeal (usually legal error).

Writ of Execution

Directs sheriff to seize defendant's nonexempt property and sell it to pay for judgment. (when the other party doesn't pay where the court asks the sheriff to come to your house and seize and sell all exempt property).
A plaintiff and his/her attorney usually consider whether the defendant has sufficient assets before the suit is filed.