Litigation Notes

Litigation

the bringing/defending of an action in court

What percent of lawsuits settle instead of going to jury verdict

95%

parties

different people who might find themselves in a lawsuit

plaintiff

initiatives the lawsuit by filing a complaint

defendant

the party that is being sued in the lawsuit

counterclaims

when the defendant also asserts a claim against the plaintiff in response

third-party defendant

party brought into the lawsuit

class action

when a plaintiff files a lawsuit on behalf of themselves and all other people who have a similar claim against the defendant(s)

advantages of class action

efficiency, consistency, bring otherwise unviable cases

standing to sue

plaintiff must show that they have a legally protected stake/interest in the dispute entitling themselves to judicial relief

requirements for bringing a suit

actual case/controversy and personal stake in the resolution of the dispute because you have been directly harmed by the other side

personal jurisdiction

power of the court to hear and determine a lawsuit involving the parties in the case

do courts automatically get persona jurisdiction over the plaintiff when they file suit

true

ways to establish jurisdiction over defendants

1. defendant voluntarily appears

2. defendant is served with process

3. defendant is served with process outside the state where the court is located AND

   1. defendant is accused of committing a tort in the state where the court is located

   2. defendant owns property related to the lawsuit in the state where the court is located OR

   3. defendant transacts substantial business related to the lawsuit in the state where the court is located

do you need to meet every requirement to establish jurisdiction over defendants

false

subject matter jurisdiction

power of the court to hear and determine lawsuits involving the legal issues int he case

what are the primary types of courts

general jurisdiction and limited jurisdiction courts

general jurisdiction court

can hear most types of lawsuits

limited jurisdiction courts

can only hear certain types of lawsuits

what is the most time consuming and expensive part of litigation

pretrial process

what is the pretrial process

1. pleadings

2. discovery

pleadings

the formal presentation of claims and defense by the parties (involves a series of written docs)

3 parts of a pleading

complaint

answer

reply

complaint

document filed by plaintiff to initiate the lawsuit, states the allegations against the defendant

answer

written response from the defendant that responds to each allegation in the complaint

can include counterclaims

reply

plaintiff’s response t the defendant’s counterclaims (if any)

4 parts of discovery

interrogatories

requests for production of documents

deposition

requests for admission

interrogatories

written questions that must be answered in writing under oath by the other side

how many days do you have to answer an interrogatory

30

what must be included in interrogatories

1. identify individuals that you are aware has personal knowledge of the facts and circumstances of the case—including all eyewitnesses

2. list all insurance agreements you have relating to the issue

requests for production of docs

how you get physical evidence from the other side

deposition

in person q&a session that are under oath

requests for admission

yes/no questions (pin down specific details for other side)

trial procedures

1. jury selection (voir dire)

2. opening statement

3. presentation of evidence

4. closing arguments

5. jury instruction

6. jury verdict

jury selection (voir dire)

prospective jurors are question by the lawyers and judge to determine their suitability to serve on jury

challenge for cause

this person cannot serve b/c they will be bias

does a judge have to agree a juror isn’t suitable when using challenge for cause

yes

peremptory challenge

you can kick off a limited number of jurors for no reason at all (not relating to race/gender tho)

opening statement

each attorney introduces their side (summary)

presentation of evidence

witnesses get called to stand and go through all evidence and cross examination

closing arguments

attorneys make emotional appeal to jury

jury instructions

judge tells jury this is what the law is and how you should apply it to the facts based on the evidence they have heard

jury verdict

jury comes together to make a unanimous verdict

burdens of proof

how convinced does the jury have to be to rule in one party’s favor

beyond reasonable doubt

no other reasonable explanation exists (95% sure)—only used in criminal cases

preponderance of the evidence

more likely than not (51% sure) based on evidence presented—civil cases only

clear and convincing proof

evidence tilts heavily in one party’s favor (bout 70% sure)

appeals process

Appellate courts: file notice with a written brief (40-60 msgs) explaining what the case is about, how the judge messed up, and why it matters, give an oral argument infant of judge, court issues an opinion

is the Supreme Court appeals process the same as the appellate court process

true