Chapter 4 : Litigation

NOT DONE

What formally starts a lawsuit?

The complaint

standing to sue

If a plaintiff has standing to sue the court must determine if it has personal jurisdiction over the defendant.

Class Action Suits

One or more individuals suing on behalf of all who may have the same grounds for suit.

Plaintiff

The party who files a civil action

The party being sued

defendant.

Aside from the party being sued, the term defendant is also used to describe

the person against whom a criminal charge is filed by the prosecuting state or federal government.

When a defendant wants to sue the plaintiff, the defendant files a

counterclaim. Most jurisdictions use the terms counterplaintiff and counterdefendant to describe the parties to the counterclaim.

In what situation do third-party defendants come out?

If a defendant alleges that there cannot be a complete determination of a controversy without the presence of other parties. This procedure usually is followed when there is someone who may have liability to a defendant if the defendant has liability to the plaintiff.

Two things a plaintiff must allege for standing to sue

1. that the litigation involves a case or controversy.

2. a personal stake in the resolution of the controversy. This element of standing prevents any individual from asserting the rights of the general public or of a group of which they are not a member.

• It is important to note that standing to sue does not depend on the merits of the plaintiffs contention that particular conduct is illegal.

Juliana v. United States KEY POINTS

• Climate change, the government violated Constitutional rights, including a claimed right under the Due Process Clause of the 5th Amendment to a climate system capable of sustaining suitable life

• To maintain a lawsuit, plaintiff must have standing or a legally cognizable claim and the court must have authority to hear the matter.

• The Ninth Circuit found that the court lacked Article III standing

• Accordingly, the case was remanded with instructions to dismiss the case for lack of Article III standing.

Personal Jurisdiction

This means the power of a court to have authority over not just the matter of the case, but also over the parties to the case.

This is obtained over the plaintiff when the plaintiff files the suit, and generally over a defendant through summons.

The delivery of summons is known as

service of process.

This is usually valid if it is served upon any member of the household above a specific age and if another copy addressed to the defendant is mailed to the home.

Long arm statutes

provide for the service of process beyond their boundaries. Such statutes are valid and constitutional if they provide a defendant with due process of law.

Under the 5th Amendment of the Constitution

no person shall ‘be deprived of life, liberty, or property without due process of law.

The 14th Amendment

provides that states must also guarantee due process protection

Due process requires that if a defendant is not present within the state where the lawsuit is filed,

he or she must have certain minimum contacts within the state so that maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice”

The typical long arm statute allows a court to obtain jurisdiction over a defendant even though the process is served beyond its borders if the defendant :

1. Has committed a tort within the state

2. Owns property within the state that is the subject matter of the lawsuit

3. Has entered into a contract within the state or transacted the business that is the subject matter of the lawsuit within the state

In criminal suits the crime must have been committed ____ for the court to have jurisdiction over the case

within the state.

In criminal suits, how is jurisdiction obtained?

By arrest. In the event of arrest in a state other than that in which the prisoner must be transported back to the state where the crime occurred. This is done by the governor of the state of arrest voluntarily turning the prison over to the governor of the requesting state.

The process of requesting and transporting the prisoner from one state to another is called

extradition.

Class-action suit

One in which one or more plaintiffs file suit on their own behalf and on behalf of all other persons who may have a similar claim.

These class-actions may also be filed on behalf of all shareholders of a named corporation. These are popular because they often involve matters in which no one member of the class would have a sufficient financial interest to warrant litigation.

The leading documents that are filed with a court to begin the litigation process are called

pleadings

The pleading filed by the plaintiff is called

a complaint. The clerk will issue the summons, and a court official (usually a sheriff or a marshal) delivers the summons and a copy of the complaint to the defendant.

What is included on a complaint?

Allegations by the plaintiff and a statement or request of the relief sought.

List the 8 steps of pretrial procedure

1. Plaintiff files complain

2. Complaints and summons served on defendant

3. Defendant files motion or answer with possible counterclaim and defenses

4. Court rules on motions

5. Plaintiff files reply to answer

6. Attorneys conduct discovery procedures

7. Parties may file motions for summary judgment or judgment on pleadings

8. Court conducts pretrial conference.

What is an answer?

A written response to a summons by a defendant, and the answer will either admit or deny each allegation of the plaintiffs complain and may contain affirmative defenses that will defeat the plaintiffs claim.

An answer may also contain a counterclaim. What is that?

Causes of action the defendant has against the plaintiff.

If the defendant does not response in any way, the court may

enter an order of default and grant the plaintiff the relief sought by the complaint.

The least expensive method discovery is __. What’s done here?

Interrogatories, which are to present a series of written questions to the opposing parties. After answers to the interrogatories are received, either party might ask the other to produce specific documents, called request for production of documents, that are important to the lawsuits outcome.

The most expensive method of discovery is also the most revealing. This is called _

A deposition. In a deposition, the lawyer orally asks questions of the possible witnesses and an oral response is given. All the spoken words are recorded by a court reporter, and a written transcript is prepared. In this way, a permanent record of the anticipated testimony is created. With depositions, the lawyers seldom need to ask a question during trial to which they do not already know the answer.

Request for an admission

After some or all methods of discovery are used, either party may request the other to admit that certain issues presenting in the pleadings are no longer in dispute. This narrows some issues and makes settlement more likely./

When a question of law is at issue, the parties can seek a pretrial determination of their rights by filing a

motion with the court. These motions can be made at any point in the litigation process. First, the defendant may, instead of filing an answer may file to a motion to dismiss for failure to state a cause of action.

If a defendant files a motion to dismiss for failure to state a cause of action, what does that mean>

By pleading this, the defendant basically says to the court that - “even if everything the plaintiff says in his complaint is true, he is not entitled to the relief he seeks.”

Statute of Limitations

Each state has prescribed a time limit in which after the suit cannot be filed.

Judgment on the pleadings

asks the judge to decide the case based solely on the complaint and the answer. Through this motion, a time-consuming but unnecessary trial can be avoided.

Motion for Summary Judgment

this seeks a similar conclusion to the litigation prior to trial. however, the party filing this motion is asking the judge to base a decision not only on the pleadings but also on other evidence.

Sworn statements that can present evidence are called

affidavits.

Voir dire means to literally

speak the truth - Prospective jurors are sworn to give truthful answers to the questions on voir dire

Peremptory challenge means

no cause or reason needs to be given to excuse a potential juror.

Batson v. Kentucky (1986)

J.E.B v. Alabama Ex Rel. (1994)

These two cases are about what?

Batson outlawed racial discrimination in jury selection, and J.E.B banned gender discrimination.

Directed Verdict

After the plaintiff has presented his or her evidence, the defendant may make a motion for this. This motion is called a Judgement as a Matter of Law. The court can only direct a verdict for one party if the evidence, taken in the light most favorable to the other party, establishes as a matter of law that the party making the motion is entitled to a verdict.

Jury instructions

Following the closing arguments, the judge acquaints the jury with the law applicable to the case.

Burden of proof

This has two meanings. It may be used to desribe the burden or responsibility that a person has to come forward with evidence on a particular issue.

This may also describe the responsibility a person has to be persuasive as to a specific fact.

For criminal suits, the burden of proof is described as

beyond a reasonable doubt.

10 Trial Steps

1. Voir dire - Parties and their attorneys select jury

2. Attorneys present opening statements

3. Plaintiff presents evidence through witnesses

4. Defendant moves for directed verdict/judgment s a matter of law

5. Defendant presents evidence through witnesses

6. Attorneys present closing arguments

7. Court instructs jury on the law

8. Jury deliberate and makes decisions (verdict)

9. Judge enters judgment on verdict

10. Losing party files posttrial motion.

Burden of proof in Civil Cases

The party with burden of proof is subject to one of two standards.

1. The preponderance of evidence standard - Used most frequently, and requires a party convince the jury of the evidence that the facts are as he or she contents. This is achieved when there is a greater weight of evidence in support of the proposition than there is against it

2. Clear and Convincing proof standard - Used in situations where the law requires more than a simple preponderance of the evidence, but less than proof beyond a reasonable doubt. The scales of justice must tilt heavily one way. .

When the result at the trial court level is appealed, the party appealing is usually referred to as __ and the successful party in court as the __

the appellant, and the appellee

Courts of appeal deal with

The record of the proceedings in lower court. All the pleadings, testimony, and motions are reduced to a written record, which is filed with the court of review. In addition, a brief is added which is just a factual summary of the case.

In addition to the brief, the reviewing court is often given the benefit of __

oral argument in the case, where the attorneys are given a specified amount of time to explain orally to the court their position in the case.

7 Steps in Appellate Review

1. Party receiving adverse judgment files notice of appeal

2. Parties file briefs in reviewing court

3. Oral argument made in reviewing court

4. Reviewing court announces decision

5. Further review may be requested by petition to higher court

6. Higher court allows or denies further review

7. Final decision (successful party may require judicial assistance in enforcing the final decision)

Execution

The primary enforcement mechanism for the judgment creditor to request. This occurs when a court official, such as a sheriff or mashal, seizes some property of the debtor, sells it at public auction, and applies the proceeds to the creditors claim.

Garnishment

This method of enforcement involves having a portion of the debtors wages paid to the court, which in turn pays the creditor.

Res judicata

either the case has finally decided on appeal or that the time for appeal has expired and a cause of action finally determined by a competent court cannot be litigated by the parties in a new proceeding in the same court or in any other state.