Civil Procedure: Chapter 5

Do each states and the fedeal gov have the same rules regarding civil cases?

NO! Federal/state has different filing cases, deadlines, and rules

Trigggering Event

The event that caused you to be harmed in some way

American Rule

Litigants pay for their own attorney

English Rule

The loser pays for the winner’s lawyer

3 parts for pleadings

1. Complaint (plaintiff)

   1. Alledges jurisdiction, set forth facts, demands relief

2. Answer (defendant)

   1. Admits or denies, places a defense,

3. Reply (plantiff)

   1. Yes you did!

Writ of Summons?

A formal court document that starts a civil lawsuit and notifies a defendant that they are being sued. Handed over to the defendent through “methods of service”

What are the different methods of service?

1. Personal service

2. Substituted Service

3. Constructive Service

Personal Service

Physically handing over the summons and complaint to the defendant “you’ve been served”. This is the ideal method because it proves that the defendant recieved the papers, but you must document the person recieved it!

Substituted Service

The summons and complaint are served on the defendant by a means other than personal service. Could be through the mail, giving the documents to a competent occupant, or to the Secretary of State when you are suing a corporation

What is a competent occupent/resident?

A person who lives there, is not an adversary in the suit, older than 14 (but Wagner always says to give it to adults), and does not have deminished capacity.

Constructive Services

Publishes the notice of summons in the legal section of the paper. Generally a last resort and it is expensive!

What happens when the defendant does not answer the summons within the specified amount of time?

This is called a default. The judge can award the plantiff, or if the defendant had a reasonable excuse (major accident, medical emergency), they can extend the deadline

Settlement Confrence

The different attorneys meet and discuss possible settlements for the civil case. If the agreemnts cannot be meet, then the judicial mechanisms start (trial)

Motions

A formal requrest by a lawyer asking a judge to make a legal ruling or take specific action during a lawsuit. Always be aware of how different judges accept motions (on paper vs electronically)

Motion to dismiss

lack of jurisdiction, Inadequate service, failure to state a claim for which relief can be granted, or summary jdugement (no factual dispute exists)

Motion to dismiss with Prejudice

The case cannot be refiled, Res Judicata, only done for extreme error

Motion to Dismiss without Prejudice

the case can be refiled. The parties are placed back into their original spots, used for technicalities

Motion to make more definit and certain

Bill of particulars, happens when the complaint contained vague allegations and you just need more information

Motion to quash service of process

When the plantiff does not follow the rules for serving a summons

• Leaving the summons with a drunk 8 year old

Motion to Inspect

the Court grants a party access to private property that pertains to aspects of a case

Motion for mental/physical examination

Allows physician/professional of choice to examine the other party

Checks if they are really hurt

Motion to Compel

When time limits are violated, the expecting party can request the judge to compel party/witness to comply

Motion for Sanctions

Used when a party wilfully fails to comply. Ex: one party failed to do what is needed (handing over documents) The sanctions can range from comtempt to dimssal from the case

Motion in Limine

Used to prevent certain evidence from being shown to the jury

Motion for Directed Virdict

Submitted after the case was presented before the jury. Assumes there is only one conclusion possible. Happens when one side has not done anything

Discovery

Court supervised exchange of information. Idea is to level the playing field. Prevents supression at trial, do not burry information, do not ask for priviledged information.

What are commonly given during discovery?

Documents, Oral Depositions, Written Interrogations, requests for admission or denial

Pretrial Confrence

Judges and attorneys will refine the issue, determine the number of witnesses needed, Out of court setlement if needed

Voir Dire

Selection of the jury

Causes for Challenge

May be based on prejudice or bias, Unlimmitted number

• The case invovles a dispute between a medical company and a patient, and the juror works for the medical company

Peremptory Challenges

Any reason except race

• Race, ethnicity, based on a protected status

• A jury member has an bumper sticker for “peace and love” and you want to kick him out

Opening Statements

Explains to the jury why they are here. A roadmap of the trial. Plantiff’s attorney goes first. Defendant’s attorney may speak now, or they can wait later. Witnesses and evidence are introduced

Case in Chief

The primary part of a court case where the attorney must establish a burden of proof.

Prosecution has a case in chief

Defense does not

Subpeona

Used to compel witness who refuses to appear

Subpoena Duces Tecum

Commands witness to produce documents

Direct Examination

when the attorney questions a witness that he/she calls

Cross Examination

opposing attorney questions a witness

Redirect Examination

You cannot bring in new questions/evidence, you can only ask questions to clean up what happened in the cross examination

• You try to clean up any mess the other side created (confusion in the jury)

Leading Questions

Suggesting to the witness how they should answer. Is not permitted on direct, is allowed on cross

What are the rules of relevency?

Evidence must be testimonial, demostrative, or physical must be relevant. It shoudl either prove or disprove some fact that is in dispute in during the trial

What is the relevency formula?

Relevancy = Material (m) + Probative (p)

Material Relevancy?

is it an issue in the dispute between the parties?

Probative Relevancy?

increases or decreases the probability of the existance of a fact

When would you exclude relevant evidence?

When it would cause unfair prejudice to the jury

When it needlessly presenting cumulative evidence

Evidence Competency?

Evidence must be legally adaequate to be admitted

Non-expert witness

Used to testify first hand experiences/facts

Expert Witnesses

can be used to draw professional conclusion

Best Evidence Rule?

Original documents over copy forms of evidence

• If the original copy is not avalible and it is not your fault, a copy may be allowed

Hearsay Rule

Prevents a witness from testifying based on second-hand information

• Person A says that Person B saw Person C rob a store

Exceptions to the Hearsay Rule

Excitted Utterances

Present Sense Impression

Dying Declarations

Communacative Priviledge

5th Ammendment - self incrimiantion

Spousal Testimony

Doctor - patient

Attorney - client

Clergy - member

Judgement not withstanding the Verdict (JNOV)

A post-trial motion

A judge feels that no reasonable person could have reached that verdict

Something went off the tracks

Motion for a new trial

A post-trial motion

Excessive or inadequate damages

Newly Discovered Evidence

Trial Errors

Motion for Relief from Judgement

newly discovered evidence

fraud induced the judgement there are time constraints based on the type of case

Additur and Remittitur

Asking the judge to add to or reduce the money