MGMT: Chapter 5

Procedual Rules

Depending if it is a federal or a state case
Then goes to the stages of litigation

Stages of Litigation

1. pretrial
2. trial
3. posttrial

Type of Attorneys fees

Fixed Fees - Charged for services like drafting a will
Hourly Fees - Can't be precisely estimated
Contingency Fees - Usually 33% of wins go to a lawyer
Retainers - Required to pursue a resolution

The plaintiff files a complaint

-Statement of facts
-Statement of remedy
-Statement of jurisdiction

service of process

The delivery of the complaint and summons to a defendant.

Defendant files an answer

Failure to answer within time limit defaults to the plaintiff's victory
The most common answer is a General Denial which means PROVE IT
Defendant can counterclaim back against Plaintiff

Dismissals and Judgments before trial

motion to dismiss
motion for judgment on the pleadings: Ask the judge to look at pleadings and decide case based on that
motion for summary judgment: Argue there are no factual issues and motion for court to enter judgment

Discovery

Used to obtain information
preserve evidence
Help in settlement
Prevents surprise
Establishes witness testimony
Narrows issues in dispute for trial

types of discovery

1) depositions: Asking questions for sworn testimony
2) Interrogatories: written questions and limit to \# you can ask
3) Request for production of documents and other tangible things: Asking for physical evidence
4) Physical and mental examination: Only if they have a physical or mental issue
5) Request for admissions: Written request to affirm or deny something in the case

Deny

means, PROVE I DID IT

pretrial conference

a meeting of the attorneys and the judge prior to the beginning of the trial
Limit issues
Ground rules

Right to Jury Trial

Federal- 7th Amendment guarantees right to a jury trial in federal court if amount of controversy exceeds $20
Most states have a similar constitutional guarantee
Party must request a jury

Voir Dire

Jury selection process of questioning prospective jurors, to ascertain their qualifications and determine any basis for challenge.

challenge for cause and peremptory challenge

challenge for cause: Removal of a prospective juror by showing that he or she has some bias or some other legal disability. The number of such challenges available to attorneys is unlimited.
peremptory challenge: Don't need a why, limited, cant be used based on race or gender

rules of evidence

Relevancy: Evidence that proves or disproves a fact in question or establish probability of a fact in question
Hearsay: Any testimony given in court about a statement made by someone else out of court, there is 24 exceptions to hearsay though generally its not admissible. (He said/she said)

the Trial

opening statements
Examination of witnesses: Direct examination and Cross-examination
A LOT OF MIDDLE STUFF
Closing arguments
Court charge
Verdict: announced in court after decision is made by judge

Posttrial

Motions can be filed by the non-prevailing party: Motion for new trial and this can be done based on:
New evidence
Jury applied the law wrong
Jury misunderstood evidence
Misconduct of participants
Legal error by judge

Motion of JNOV

A request by the losing party in a trial to have the judge overturn the verdict of the jury.

Appeal

Notice of appeal: Filed by the losing party and must be done in a given time
Record: Transcript of testimony such as pleadings, motions, charges, and judgment.
brief: Filled by each party in the appellate court, one explains how the court was right and one explains how it was wrong

Appellate review

Oral Argument
The appellate court does not hear evidence and bases its decision on records, briefs, and oral arguments
The appellate court issues a decision where they affirm, agree with lower courts, or reverse which is where they disagree.

modify

to make less extreme or severe NEVER GREATER

Appeal to higher court

No Automatic right of appeal to state or US supreme court
Losing party may only appeal to US Supreme Court from state supreme court if a federal question was involved; otherwise, state supreme court decision is final

Enforcing the judgment

The court can order a sheriff to seize property owned by the defendant and hold it until the defendant pays the judgment owed to the plaintiff. If the defendant fails to pay, the property can be sold at an auction and the proceeds given to the plaintiff, or the property can be transferred to the plaintiff in lieu of payment.
WRIT OF EXECUTION