5. Court Procedures

Procedural Law

can have a big impact on an individual’s ability to bring a suit

–provide the framework and outline the parties’ obligations at each stage of the proceeding

–All federal civil cases are governed by the Federal Rules of Civil Procedures

•However- Local Federal courts may have specific rules for their courts as well

Stages of Litigation

–Pretrial, Trial, and posttrial

Step 1

Consults a licensed attorney in your jurisdiction

Attorney’s Job:

• –Listen to facts;

• –Explain options;

• –Discuss realistic “expectations”

• –Timeframe

• –Cost and expenses

• •This includes Attorney’s costs; and

  • Out-of-pocket expenses

  • Filing fees; travel; expert witnesses’ cost; Private investigator

retainer agreement

–Outline the services to be provided and fee arrangement

Fixed fees

•Fees- transactional fee; flat fee

–Drafting a will or Business Operating Agreement

Hourly Fee

•$ per hour

–Usually involves a retainer fee

–Per hour rate may be may vary

Contingency Fee

–Attorney only gets paid if the Plaintiff is successful

–Only Available in certain types of cases

•Most common personal injury

Pleading

are the complaint and answer

Complaint addresses the following suit:

–Jurisdiction- alleging facts that support the jurisdiction in which the suit was filed in, i.e., the court has subject and/or personal jurisdiction

–Legal theory-facts establishing the plaintiff’s claim and basis for relief sought

–Remedy- the relief the plaintiff is seeking ($).

Service of the Process

•the plaintiff must serve or deliver a copy of the complaint and summons on the defendant

Summons

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

•Failure of to answer the complaint could result in a default judgment

  Court awards the plaintiff the remedy sought

Methods of Service of Process

can vary depending on jurisdiction involved

• personal

• corporate

• nail and mail

Personal service

personally handing the summons and complaint on the defendant

•Anyone of 18- can be PI or sheriff (depending on the jurisdiction)

Corporate defendants can

serve corporate officials/officers or the registered agent

Nail and mail

not a preferred method

Waiver of formal service

many jurisdiction allow defendants to ___________

–Benefit receive extra time to file an answer 60 days instead of 20 days under Federal Rules

Defendant can

admit ot deny allegations, set foth any affirmative defenses

Affirmative Defenses

-the defense alleges that they have evidence to negate liability

–This can be additional facts or statutory defense

•SOL or Contributory negligence (whole or partial defense)

Counter Claims

is where the defendant asserts their own claim against the plaintiff

–The original plaintiff will have to answer

Motion

•is a procedural request submitted to the court by an attorney.

Opposing party needs to be provided notice of motion (some form of service)

Motion to dimiss

•Generally, file by the defendant- failure to state a claim for which relief can be granted

Defendant Example- lack of jurisdiction or SOL

Motion for judgement on pleadings

•After each party has filed their respective complaint and answer- either party may file a motion for a judgement on the pleadings

Plaintiff/defendant asking the judge to make decision- No factual dispute

–If granted- Court will decide the case solely on the pleadings (NO Trial or outside evidence)

–To be granted there must be no dispute over the facts and the sole issue to be resolved is an issue of law

•The defendant failed to raise any affirmative defenses

Motion for Summary Judgment

asking the judge to enter a judgement without a trial

add additional material that differs from a motion on the pleadings (on test)

–Again, there can be no factual dispute and the only question is applicability of the law

–MSJ v. MJP- MSJ either party may submit evidence that refutes the other parties claim

Affidavits

Sworn Statements by a party or witnes

Documents

contacts, emails, letters

Discovery

is a way or process for either party to obtain information from the other party prior to the trial

–This also includes access to witnesses, documents, records, and  medical records

Depositions

•is a sworn testimony given by a party or witness recorded by a court representative

–Both sides attorneys ask questions- answers under oath and recorded

Interrogatories

•are written questions delivered to a witness or party- answers are given under oath

–Attorneys will help prepare written responses

–Very specific purpose- example contract details

Request for Admissions

•Resolves issues of fact- avoid spending time trying to prove something that is well known

–Accident case-Was the defendant driver’s license suspended

Request for Doc and Entry upon Land

inspect the premises

Request for Examinations

•when the physical or mental condition is in question

–A party can request an examination by an independent examiner

•Balancing test- privacy rights v. probative value

Electronic Discovery

•electronic or e-evidence consists of electronically stored records, emails, voicemails, tweets, blogs, social media posts, spreadsheets

–Including “Metadata”- such as who created the file, when and where, who accessed, modified or transmitted it.

–Must be aware of Spoliation of evidence especially with e-discovery

•Spoliation of evidence occurs when a document or information that is required to be disclosed is destroyed or alter significantly

Opening Statements

both attorneys allowed to give an opening
statement

Rules of Evidence

determines what evidence is presented in the
case
– Federal Rules (State rules) determine what evidence is admissible in court
– Hearsay

Direct Examination

is questioning of a witness called by the attorney
– Generally, a favorable witness
• Cannot ask leading questions
exception unless court grants permission to treat as hostile

Cross-examination

questioning by the opposing attorney

Expert Witness

both parties may call them
– Are individuals who have specialized education, training, skill, or
experience in a particular area beyond that of an average person
– Experts may testify about opinions and conclusions
• Non-experts must only testify about direct observations
• Judges determine who is an expert witness

Hearsay

an out-of-court statement offered to prove the truth of the matter asserted-Inadmissible

23 exceptions - excited utterance; statement against interest-admission

Redirected

limited to subject matter covered on cross

Recross

limited to subject matter covered in redirect

motion for a directed verdict/motion for a judgment as a matter of law

The Plaintiff has failed to meet their burden of proof or state a cause of action for the relief sought to be granted
– Judge will look at the plaintiff case in the “most favorable light”
• Very seldom granted

If directed motion denied

the defense presents their case
– Call witnesses, introduce evidence
– Following the defendant’s case the plaintiff can offer rebuttal testimony evidence/testimony
– The Defense then has an opportunity for rejoinder-rebuttal of rebuttal

Closing Arguements

attorneys summarize their case and facts/evidence presented supporting their case

highlight issues in the opponent’s case

Jury Instructions

Attorneys and judge meet to discuss how to charge the jury

• judge instructs the jury as to the law that applies in the case

Verdict

is the judge or jury’s decision

• the trial is then over

• may make an award (compensation or punitive)

Compensatory

money

Punitive

punish the behavior

Posttrial Motion

posttrial motions occur

Motion for New Trail

requires an error of law or misunderstanding
of the evidence by the jury

-newly discovered evidence
– Misconduct by the juror
– Legal error of the judge

Motion for Judgement NOV

A second motion for a judgement as a matter of law, more common
– If successful, the jury verdict will be set aside, and judgement entered in favor of the opposing party
– Either side may appeal,

Appellate Court Can

– Affirm the lower ct decision
– Reverse and remand-
– Reverse and Affirm
• Affirm ultimate findings but reverse & remand in part (example damages)
– Modify- limit or reduce damages; reduce the crime/conviction

Highest Appellate Court Can

Parties have a right to ask not a right to be heard; Court has discretion to hear the matter
– If granted, parties will start the appellate process all over again

Writ of Execution

is an order directing the sheriff to seize and
sell the defendant’s property
– The proceeds or property itself are used to settle the judgment
• Certain jurisdictions have property or categories of property that is
exempt
– Liens on the property
• Landlord tenant judgements

Availability of Assets

Always look for “deep pockets”
– Prior to filing a suit Attorneys must consider the likelihood of collecting actual damages ($)
– Attorneys during discovery are always looking for the location and description of a defendant’s assets
– Attorneys and defendants do not like “hollow victories”