Chapter 5 - Court Procedures

What are the procedural rules that must be followed when a lawsuit is filed?

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

• It has a significant impact on a person’s ability to pursue a legal claim

• Are complex

• Vary from court to court

• Vary from state to state

Federal Rules of Civil Procedure (FRCP)

The rules controlling procedural matters in civil trials brought before the federal district courts.

What are the three phases of the Litigation Process?

1. Pretrial

2. Trial

3. Posttrial

What is the first step taken by almost anyone contemplating a lawsuit?

Seeking the guidance of a licensed attorney.

What does an attorney do?

• Provide advice as to what can be expected in a lawsuit − Discuss the probability of success at trial − Advise about the procedures that will be involved

• Discuss the advantages and disadvantages of filing in a particular court if more than one court would have jurisdiction over the matter

• Estimate how long it will take to resolve the dispute through litigation in a particular court

• Provide an estimate of the legal and out-of-pocket fees involved

What are the different types of attorneys’ fees?

1. Fixed

2. Hourly

3. Contingency 

What is English Rule?

The losing party in a lawsuit is responsible for paying the legal costs of the winning party.

What is American Rule?

Each party is responsible for paying its own legal fees, regardless of whether it wins or loses the case.

What is another important consideration when deciding to pursue litigation?

The defendant’s ability to pay the damages sought.

What does the pretrial litigation process involve?

• Filing of the pleadings

• Gathering of evidence (discovery)

• Motion Practice

What are Pleadings?

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

What is a 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.

What is Jurisdiction?

The facts show that the particular court has subject-matter and personal jurisdiction.

What is Legal Theory?

The facts establishing the plaintiff’s claim and basis for relief.

What is a Remedy?

An amount of damages or other relief sought by the Plaintiff

What must a complaint include?

• Jurisdiction

• Legal Theory

• Remedy

What is Service of process?

The delivery of the complaint and summons to a defendant.

What is a Summons?

A document informing a defendant that a legal action has been commenced against them and that the defendant must appear in court on a certain date to answer the plaintiff’s complaint

How must a summons be delivered?

By a sheriff or any other person so authorized

What happens if the defendant doesn’t file an answer to the complaint?

They must file an answer to the complaint within a specified time period or suffer a default judgment against them.

What is a Default Judgement?

A judgment entered by a court against a defendant who has failed to appear in court to answer or defend against the plaintiff’s claim.

Under FRCP, who can be part of a jury?

Anyone who is at least eighteen years of age and is not a party to the lawsuit can serve process in federal court cases.

In state courts, who provides process service in the local area?

The server is often a county sheriff or an employee of an independent company.

Who do Corporate Defendants service on?

• an officer or

• a registered agent (representative) of the corporation

Who serves Individual Defendants?

• Personally

• At their residence

• their principal place of business

• At the place of usual abode, leave with someone of suitable age and discretion.

What is Substitute Service?

• Defendant is avoiding service

• If approved by the Court and served by Publication or through DMV or other authorized means

What is an Answer?

A defendant’s response to the plaintiff’s complaint.

What happens in an answer?

The defendant either admits or denies each of the allegations in the complaint and may also set forth defenses to those allegations.

What is a Counterclaim?

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

What is 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.

•  Burden is on defendant to introduce proof

• If not plead then waived.

What is a Motion?

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

What must the filing party do when they request a motion?

The filing party must also provide the opposing party with a notice of motion, which informs the opposing party that the motion has been filed; allowing an opposition to be filed.

What is a Pretrial motion?

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

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 to Strike

A defendant’s motion asking the court to strike (delete or remove) certain paragraphs from the complaint to better clarify the issues in dispute

Motion to Make More Definite or Certain

A motion by the defendant when the complaint is vague that asks the court to compel the plaintiff to clarify the cause of action

Motion for Judgment on the Pleadings

A motion by either party asking the court to enter judgment in their favor based on the pleadings because there are no facts in dispute

Motion to Compel Discovery

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

Motion for Summary Judgment

A motion asking the court to enter a judgment in one party’s favor without a trial

What is a 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.

What must happen for a motion to be dismissed?

• If the judge grants the motion to dismiss, the plaintiff generally is given time to file an amended complaint.

• If the judge denies the motion, the suit will go forward, and the defendant must then file an answer.

• The court can also dismiss a case on its own motion.

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.

Motion for summary judgment

A asking the court to enter judgment as a matter of law without a trial. The motion can be based on evidence outside the pleadings and will be granted only if no facts are in dispute.

• Only admissible evidence may be considered.

What must a motion for summary judgment include?

• Affidavits: sworn statements

• Copies of documents

• Deposition Transcripts

• Answer to Interrogatories

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.

• prevents surprises at trial.

• Allows the litigants to learn as much as they can about what to expect at a trial.

Discovery Rules

• Only information that is relevant to the case at hand—or likely to lead to the discovery of relevant information—is discoverable.

• If a discovery request involves privileged or confidential business information, a court can deny the request and can limit the scope of discovery in a number of ways.

Deposition

The testimony of a party to a lawsuit or of a witness taken under oath before a trial.

What happens and what are the conditions of a Deposition?

• Gives an attorney the opportunity to ask immediate follow-up questions and to evaluate how witnesses will conduct themselves at trial.

• Can be employed in court to impeach a party or a witness who changes their testimony at a trial.

• Can be used as testimony if the witness is not available at trial.

Interrogatories

A series of written questions for which written answers are prepared and then signed under oath by a party to a lawsuit, usually with the assistance of the party’s attorney.

What are the differences between interrogatories and written depositions?

• Interrogatories are directed to a party to the lawsuit (the plaintiff or the defendant), not to a witness.

• Prepared with the assistance of counsel.

• Signed under oath; can be used for impeachment at trial.

Requests for Admissions

One party can serve the other party with a written request for an admission of the truth of matters relating to the trial.

• Any fact admitted under such a request is conclusively established as true for the trial.

Requests for Documents, Objects, and Entry Upon Land

A party can gain access to documents and other items not in their possession to inspect and examine them or gain “entry upon land” to inspect a premises.

Requests for Examinations

When the physical or mental condition of one party is in question, the opposing party can ask the court to order an independent physical or mental examination.

Electronic Discovery

The federal rules and most state rules (as well as court decisions) specifically allow individuals to obtain discovery of electronic “data compilations.”

E-evidence

A type of evidence that consists of computer-generated or electronically recorded information, including e-mail, voice mail, social media posts, blogs, spreadsheets, and documents.

Metadata

Data that are automatically recorded by electronic devices on their hard drives and that provide information about who created a file and when, and who accessed, modified, or transmitted it.

What are the advantages of Electronic Discovery?

• Electronic versions of documents and messages can provide information about how a matter progressed over several weeks or months.

• Often easier to search electronic versions.

What are the disadvantages of Electronic Discovery?

• It is time-consuming and expensive.

• It can be challenging to preserve e-evidence from a vast number of sources.

• Spoliation of evidence, in which a document or information that is required for discovery is destroyed or altered significantly, may occur

Spoliation of Evidence

Destruction of Evidence

What happens after discovery has taken place and before the trial begins?

The attorneys may meet with the trial judge in a pretrial conference.

What is the purpose of a pre-trial conference?

To explore the possibility of a settlement without trial and, if this is not possible, to identify the matters in dispute and to plan a course of the trial.

What is discussed at a pre-trial conference?

• How long trial is anticipated to last

• Number of witness (local/out of state)

• Mark Exhibits

• Proposed Jury Instructions

What does the 17th Amendment guarantee?

The right to a jury trial for cases at law in federal courts when the amount of controversy exceeds $20.

Bench trial

A trial without a jury. Judge decides all questions of fact and of law.

Jury trial

Judge decides questions of law, but the jury decides all questions of fact (including the amount of damages due the plaintiff).

Voir dire

A French phrase meaning, literally, “to see, to speak” that refers to the jury-selection process.

• The attorneys question prospective jurors to determine whether they are biased or have any connection with a party to the action or with a prospective witness.

−For cause (bias)

Move to strike for cause.

• If convince the Judge the juror has a bias, will be removed for cause.

Peremptorily (no reason)

• Party may remove a juror without providing a reason.

• Prospective jurors cannot be excluded by the use of discriminatory challenges such as those based on racial criteria or gender.

• Each side has a limited number of peremptory challenge.

Various rules and procedures govern the trial phase of the litigation process, such as:

• What kind of evidence will or will not be admitted during the trial

• Specific procedures that the participants in the lawsuit must follow

Opening statement

A statement made to the jury at the beginning of a trial by a party’s attorney, prior to the presentation of evidence.

• Provides an opportunity for each lawyer to give a brief version of the facts and the supporting evidence that will be used during the trial.

This is NOT argument on the merits of the case.

Rules of evidence

Rules governing the admissibility of evidence in trial courts.

Rule 401. Test for Relevant Evidence Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence;

(b) the fact is of consequence in determining the action.

Hearsay

An oral or written statement made out of court that is later offered in court by a witness (not the person who made the statement) to prove the truth of the matter asserted in the statement.

• Generally inadmissible as evidence

Plaintiff’s Case in Chief

Calls their wtiness

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

Redirect examination

The plaintiff’s attorney has another opportunity to question the witness

Recross-examination

The defendant’s attorney may follow the redirect examination

What can witnesses testify in a case?

The facts

Expert Witnesses

Parties may present testimony from expert witnesses

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Motion for a judgment as a matter of law 

In a federal court, 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.

• aka Motion for A Directed Verdict

Defendant’s Case in Chief

The defendant’s attorney presents the evidence and calls and examines witnesses for the defendant’s case.

• The plaintiff’s attorney has the right to cross-examine the witnesses, and there may be a redirect examination and possibly a recross-examination.

• After the defendant’s attorney has finished introducing evidence, the plaintiff’s attorney can present a rebuttal.

Rebuttal

The refutation of evidence introduced by an adverse party’s attorney

Rejoinder

The defendant’s answer to the plaintiff’s rebuttal.

Closing argument

An argument made at a trial after the plaintiff and defendant have rested their cases.

• Made prior to the jury charges

• Each attorney summarizes the facts and evidence presented during the trial and indicates why the facts and evidence support their client’s claim.

• In addition to generally urging a verdict in favor of the client, typically reveals the shortcomings of the points made by the opposing party during the trial

Jury Instructions

Juries are instructed on the standard of proof they must apply to the case.

• In most civil cases, the standard of proof is a preponderance of the evidence

• Prove that something is more likely than not.

What must the prosecution do in a criminal trial?

It must prove its case beyond a reasonable doubt.

What is in a Verdict?

• the jury’s factual findings.

• Amount of the award, if any.

• Polling of Jurors

Motion for a 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 judgment 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.

• If the judge grants the motion, then the jury’s verdict will be set aside, and a judgment will be entered in favor of the losing party.

• If the motion is denied, the losing party may then appeal the case.

When can a party appeal?

Either party may appeal not only the jury’s verdict but also the judge’s ruling on any pretrial or posttrial motion.

Brief

A formal legal document submitted to an appellate court when a case is appealed.

Appellate Review Options

• Affirm the trial court’s decision

• Reverse: the trial court’s judgment if it concludes that the trial court erred or that the jury did not receive proper instructions

• Remand (send back) the case to the trial court for further proceedings consistent with its option on the matter

• Affirm or reverse a decision in part

• Modify a lower court’s decision

When does a court reverse a decision?

if it concludes that the trial court erred or that the jury did not receive proper instructions.

Remand

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

Affirm or reverse a decision in part

Example: The court might affirm the jury’s findings that the defendant was negligent but remand the case because certain evidence should have been excluded.

Modify a lower court’s decision

Example: The court may decide that the jury awarded an excessive amount in damages and reduce the amount

Writ of execution

A court’s order, after a judgment has been entered against the debtor, directing the sheriff to seize (levy) and sell any of the debtor’s nonexempt real or personal property.