Business Law - Chapter 5 - Court Procedures

Procedural rules:

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

Have 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

Litigation process:

Pretrial

Trial

Post trial

Stages in a typical lawsuit

Accident, breach of contract, or other event

The party hires a lawyer who files a complaint and notifies the defendant

Defendant’s attorney files an answer or motion to dismiss

Pretrial discovery and more motions, pretrial conference

Trial and perhaps post trial motions and/or an appeal

Pleadings

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

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

Complaint contains statements or allegations concerning the following:

Jurisdiction (facts showing that the particular court has subject-matter and personal jurisdiction)

Legal theory (the facts establishing the plaintiff’s claim and basis for relief)

Remedy (the remedy, such as an amount of damanes, that the plaintiff is seeking)

Service of process

the delivery of the complaint and summons to a defendant

Summons

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

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

Answer

procedurally, a defendant’s response to the plaintiff’s complaint

What is important to know about any allegations that are not denied by the defendant

will be deemed by the court to have been admitted

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

Counterclaim

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

Motion

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

When a motion is filed with the court

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.

Pretrial motion

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

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

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

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 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

Motion for judgement on the pleadings

A motion by either party asking the court to enter judgment in his or her 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 judgement

A motion requesting the court to enter a judgment without proceeding to trial.

What is important to know about evidence outside the pleadings?

will be granted only if not facts are in dispute

Affidavit

A written voluntary statement of facts, confirmed by the oath or affirmation of the party making it and made before a person having the authority to administer the oath or affirmation

Admissible

evidence that the court could allow to be presented during the trial

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

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

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

Impeach

to challenge the credibility of a person’s testimony or attempt to discredit a party or witness

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

Directed to a party to the lawsuit → the plaintiff or the defendant not to the witness

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 his or her possession in order to inspect and examine them

Requests for examinations

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

E-evidence

A type of evidence that consists of computer-generated or electronically recorded information

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

Pretrial conference

explore the possibility of a settlement without trial and to identify the matters in dispute and to plan a course of the trial

Voir dire

to see, to speak which refers to the jury-selection process

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

Rules of evidence

Rules governing the admissibility of evidence in trial courts. There are a series of rules that the courts have created to ensure that any evidence presented during a trial is fair and reliable

Relevant evidence

Evidence tending to make a fact at issue in the case more or less probable than it would be without the evidence

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

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

another opportunity to question the witness

Expert witness

a person who, by virtue of education, training, skill, or experience has scientific, technical, or other specialized knowledge in a particular area beyond that of an average person

Motion for a judgement as a matter of law

In a federal court, a party’s request that the judge enter a judgment in her or his favor before the case is submitted to a jury because the other party has not presented sufficient evidence to support the claim

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

Standard of proof

in civil cases, the plaintiff need only show that her or his factual claim is more likely to be true than the defendants

Higher standard of proof

in criminal trial, prosecution must prove its case beyond a reasonable doubt

Verdict

A formal decision made by a jury

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 judgement 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 him or her was unreasonable and erroneous

Brief

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

What does a brief outline

The facts and issues of the case

The judge’s rulings or jury’s findings that should be reversed or modified

The applicable law

The arguments on the client’s behalf

After reviewing a case, an appellate court issues a written opinion that either:

1. Affirms the trial court’s decision

2. Reverses the trial court’s judgment if it concludes that the trial court erred or that the jury did not receive proper instructions

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

4. Affirms or reverses a decision in part

5. Modifies a lower court’s decision

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

Motion for a directed verdict

In a state court, a party’s request that the judge enter a judgment in her or his favor before the case is submitted to a jury because the other party has not presented sufficient evidence to support the claim. The federal courts refer to this request as a motion for judgment as a matter of law.