BLW 302 - CH 5: Court Procedures

What rules control procedural matters in civil trials for the federal district courts?

What are procedural rules for litigation?

• The Federal Rules of Civil Procedures (FRCP)

• rules you must follow when filing a dispute

  • complex, vary from state to state and court to court

What are the 3 phases of the litigation process?

Pretrial, Trial, and Post trial

What are the 5 stages of a typical lawsuit?

1. something happens: harm was done

2. party hires lawyer who files complaint and notifies defendant

3. defendant’s attorney files an answer or motion to dismiss

4. pretrial discovery, more motions, pretrial conference

5. trial and maybe post trial motions and/or appeal

Step 1: when something happens who do you go to?

• what can they provide for you (3)?

seek guidance of licensed attorney — can provide:

• advice on lawsuit expectations and procedures and probability of success

• if concurrent jurisdiction: advantages and disadvantages of filing in certain court

• estimation of time to resolve dispute and legal and out of pocket fees

Step 2: when you hire an attorney what are the 3 type of fees you can be charged? How are they disclosed?

1. fixed fees

   • charge flat rate for their work

2. hourly fees

   • depends on case complexity, lawyer experience, trial time

3. contingency fees

   • win = take part of award, lose = no fee

Disclosed through fee disclosure

What is the difference between fees and costs?

fee: what you pay your lawyer for their services

cost: things you pay for that lawyer needed to provide service

• ie. expert witnesses, e-data discovery

Who pays for the lawyer fees and costs in English and American courts?

English: loser has to pay

American: winner pays unless statute, rule, or contractual language states otherwise

What should you consider about resources and defendant when suing?

1. attorney will only have access to amount of resources that client is willing to spend on case

   • are the resources spent worth the litigation process?

2. Is the defendant able to pay the damage awarded?

   • may not have insurance, enough assets, or money to pay what they owe

What are 3 things that the pretrial process involves?

1. filing of pleadings

2. discovery (gathering of evidence)

3. motion practice

What is a pleading? what is a pleading made by a petitioner and made by a defendant?

Pleading: formal statements made by petitioner and defendant that detail facts, allegations, and defenses involving litigation

Complaint: made by plaintiff alleging wrongdoing of defendant

• initiates lawsuit when filed

Answer: defendant’s response to the plaintiffs complaint

What does a complaint include statements and allegations of (3)?

• jurisdiction: facts showing court has personal and subject matter jurisdiction

• legal theory: what you are trying to prove, plaintiffs claims

• remedy: amount of damages or equity sought by plaintiff

What is service of process?

What is a summons?

How does service of process work?

What is default judgement?

• Mandatory delivery of complaint and summons to defendant

• document that informs defendant of lawsuit and that they must appear in court on a certain date to answer plaintiff’s complaint

1. documents are delivered by sheriff or authorized person

2. defendant is notified of legal action against them and must file an answer to complaint in specified period

3. failure to do so leads to default judgement

• court makes a judgment against defendant who has failed to appear in court to answer or defend against plaintiff’s claim

Who is authorized to serve process under the FRCP?

Who is usually the server in state courts?

What happens when a defendant waives the formal service?

• anyone over 18 and is not a party to the lawsuit

• in state courts: often is county sheriff or employee of independent company that provides process service in local area

• Waive formal service: increases cooperation, saves time and money, gives defendant more time to respond

Where can individual defendants be served?

What about corporate defendants?

What is Substitute service?

• individual: personally, at home, at work, place of usual abode with suitable person

• corporate: officer in company (someone w/ authority), registered resident agent of the corporation,

• Substitute service: defendant is avoiding service, so have right to deliver summons through other way

  • email, DMV, publish on newspaper

Describe the process of service: how does documents get from plaintiff to defendant (6)?

plaintiff consults attorney → attorney files complaint and gives to processor

processor delivers to defendant or resident agent → if corp, notifies corp authority

notify attorney → file answer or motion to dismiss within given date

What is included in a defendant’s answer?

What happens if allegations are not denied?

What is a counterclaim?

• defendant admits or denies allegations and sets defense against them

• any allegations not denied are deemed by court as admitted

• claim made by defendant that sues the plaintiff

  • refer now as counter plaintiff and counter defendant

What is affirmative defense?

What burden does the defendant have and what must they do to use it?

• when defendant does not deny plaintiff’s facts but attacks their legal right to bring action

• must introduce proof of affirmative defense

• must plead it to use it, if not then it cannot be used later in trial

What is a motion? What is a pretrial motion?

procedural request by attorney to the court on behalf of client

• filing party must notify opposing party of motion to allow opposition to be filed

Pretrial Motion

• written or oral application to court for a ruling or order to be made before trial

Define the following motion types:

1. Motion to Strike

2. Motion to Make More Definite or Certain

3. Motion to Compel Discovery

• ask court to remove certain paragraphs from complaint to better clarify dispute issue

  • petitioner gets to descriptive that some info is irrelevant

• made by defendant when complaint is vague and asks court to compel plaintiff to clarify cause of action

  • common in fraud case

• ask court to force non-moving party to comply with discovery request

What is considered a dispositive motion?

A motion to end the case or remove part of case 

• ex. motion to dismiss or motion for summary judgement 

What is a motion to dismiss?

When a defendant asks judge to dismiss case due to plaintiff having no basis in law or other reasons (no sufficient harm done to plaintiff to have a lawsuit)

• court can also dismiss case on their own 

What is a motion for judgement on the pleadings?

A party asks court to make a judgement on the pleadings without the need for a trial

• only occurs when no facts are in dispute 

• complaint and answer are filed 

What is a motion for summary judgement? What is partial summary judgement?

A party asks the court to make a decision without a trial and only using pleadings AND admissible evidence submitted.

• Only granted if no facts are in dispute

Partial: when part of the case is dismissed to reduce the amount of information that will be taken into court 

• ie. take out part of the case where no facts are in dispute that way the trial will only go over facts that are in dispute 

What is Discovery?

The process where both parties in lawsuit get as much information from each other and third parties prior to trial

• prevents surprises in trial b/ allows both sides to learn as much as they can about what the opposing side might bring to trial

• You have to disclose information to opposing side or it can’t be used for trial

What are the rules of discovery (2)?

• only can collect information that is relevant or is likely to lead to relevant information 

• if discovery request involves confidential or privileged business information  then court can deny request and limit scope of discovery 

What is a deposition? Why is coaching not allowed when person is on the stand?

When a testimony of a party in the lawsuit or witness is taken before the trial

• under oath

• can be employed to impeach if person changes testimony in trial 

• can be used if person is not able to make it to trial 

coaching not allowed b/ you could influence what your client will say

What are interrogatories? What is the difference between that and a written deposition?

Written questions directed to a party for them to reply in writing under oath with an assist from their attorney 

Differences

• interrogatories are only directed to parties in the lawsuit, not witnesses

• interrogatories can be prepared with attorney assistance

• interrogatories are signed under oath and can be used to impeach

What is a request for admissions?

When one party serves other party with written request to admit factual truths

• will be used in trial 

• ex. you are red this day? yes.

Describe requests for documents, objects, and entry upon land.

You and attorney have right to examine if it’s related to litigation

Describe requests for examinations.

You can request to have a person’s mental or physical state medically examined to clarify severity of the condition

What is e-evidence and metadata?

e-evidence: evidence that is electronically recorded or computer generated

metadata: other information created when data is recorded or generated 

• ie. take a picture: you also get date, time, location, etc. 

Describe advantages and disadvantages of electronic discovery.

Advantages:

• can provide more information that can be useful (metadata) 

• is easier to search through 

Disadvantages: 

• time consuming and expensive 

• challenging to preserve if have vast sources 

• spoliation of evidence: information needed is destroyed or significantly altered 

What can happen in trial if spoliation of evidence occurs?

• Adverse inference: can make assumption that evidence was bad for the party that destroyed it 

• Jury instruction: judge tells jury how to view the spoliation 

What is a pretrial conference and what is its purpose?

• Attorneys and trial judge meet

• purpose:

  • to explore possibility of settlement without trial, OR

  • identify matters in dispute AND plan course of trial

    • anticipated time for trial, proposed jury instructions, mark exhibits

What amendment guarantees a right to a jury trial in federal courts? What is the amount of controversy it needs to exceed? Does a party automatically get a jury?

• The seventh amendment 

• exceeding $20

• need to request for a jury trial or assumption is made to waive right and bench trial is used 

What is a bench trial? What is a jury trial?

Bench trial:

• trial without a jury, judge decides all questions of fact and law 

Jury trial: 

• judge decides question of law, jury decides question of facts 

What is voir dire? How does it occur?

• the jury selection process

• prospective jurors are questioned to determine if they have any biases 

How are jurors removed during the selection process?

• for cause (unlimited)

  • strike juror because attorney convinced judge that juror has a bias

• peremptorily (limited) 

  • no reason needed however, 

  • CAN’T exclude based on discrimination (race, gender, etc.)

How does the trial process start? Describe what goes on in first step

• Plaintiff’s party provides opening statements

• provide brief version of the facts and what evidence will be used in trial

  • not an argument

What rule tests to see if evidence is relevant? What does it include?

• Rule 401 — relevant if:

• will make fact more or less probable AND

• fact is consequence in determining action

Example:

• Issue: matcha tin was stolen

• evidence: security cam footage showing defendant entered store 5 minutes before can disappeared

• first, makes it more probable that they were thief

• second, being in the store is directly tied to them allegedly stealing can

What is hearsay and why is it normally not admissible evidence? 

• Hearsay: using what someone else said to you as evidence

  • “He said she said”

  • written or oral statement made out of court by someone else

Full definition:

• declarant was not testifying at current trial or hearing AND

• party offers it as evidence to prove truth of the matter

What is the next step of the trial after the opening statement?

Evidence is presented.

• Case in chief: witnesses are called to testify

Describe the examination process for a witness.

Direct examination

• examination done by attorney that called the witness

Cross examination 

• examination done by opposing attorney to same witness

Redirect examination 

• original attorney that called witness can question witness one more time 

Recross examination 

• opposing attorney gets to question witness one more time 

What is the different between witnesses and expert witnesses when testifying?

regular witnesses: can only testify facts about case that they personally observed 

expert witnesses: can testify facts and opinion on case

How is a person qualified to be an expert witness? When can they give an opinion?

• Have expert knowledge, skill, experience, training, or education 

Can give opinion when:

• The expert has specialized knowledge

• opinion is based on sufficient facts and data

• testimony is product of reliable principles and methods and expert can apply it to the facts of the case 

After the plaintiff rests, what occurs?

Motion for judgement as a matter of law (motion for a directed verdict)

• party request judgement in their favor b/ opposing side did not provide sufficient evidence to support claim 

• ie. need to prove A and B but only had evidence for A.

What happens after plaintiff rests and motions?

Defendant’s opening statements and presented evidence 

What occurs after defendant rests?

Rebuttal: plaintiff refutes evidence that defendant’s introduced 

Rejoinder: defendant answers to rebuttal

What happens after the rebuttal and rejoinder?

Closing arguments

• each attorney summarizes facts and evidence and explains why it supports their client’s claims

• urges for verdict in clients favor and points out shortcomings of opposing side

What is next step of trial after closing arguments?

Jury instructions 

• judge instructs jury on standard of proof to apply to case 

civil cases:

• preponderance of evidence: more likely than not 

• ie. just over 50% chance 

• loss of money 

criminal cases: 

• beyond reasonable doubt: must have firm belief and is fully convinced that defendant is guilty

• loss of rights 

Verdict is made

• verdict specifies jury’s factual findings

• amount of award given 

• jurors are polled

What occurs Posttrial?

motions are requested

• prevailing party requests for judgement in accordance with verdict 

• non prevailing party files for a motion for a new trial or for a judgement N.O.V.

Describe the motion for a new trial and motion for a judgement N.O.V.

motion for new trial:

• trial was so fundamentally flawed, new discovered evidence, prejudice, etc. occurred 

• new trial is necessary to prevent injustice 

Motion for judgement N.O.V.:

• motion request for judgement to be in their favor because jury verdict was unreasonable and is errored

When can you make file an appeal? What does the appellate court review?

• When you have legitimate grounds of legal error

• questions of law not fact

How long do you have to file an appeal notice?

What is the party who filed the appeal now called?

What is the opposing party called?

What is sent to the appellate court?

• 30 days

• appellant 

• appellee 

Documents sent 

• record of case

• briefs: formal document that summarizes case’s facts, procedural history, specific legal issues  

What happens in an appellate court?

• oral arguments

• address questions of law 

Describe the following options that an appellate court can do after reviewing case: 

1. Affirm 

2. Reverse

3. Remand

4. Partial affirm or reverse of decision

5. Modify

• Affirm: court agrees with trial court’s decision  

• Reverse: court disagrees with trial court and overturns decision

• Remand: court sends case back for a retrial 

  • ex. this evidence should have not been used in trial

• Affirm or reverse in part: court agrees with some parts but disagrees with other parts 

  • ex. court agrees person is guilty but remands case to exclude some evidence

• Modify: modifies lower court’s decision 

  • damages should be reduced

What happens if the losing party cannot afford to pay for the damages sought?

prevailing party can request writ of execution

• court orders sheriff to seize (levy) and sell any non exempt assets`

• proceeds are used to pay: judgement, interest, cost of sale 

  • surplus is paid back to debtor