Chapter 4 Litigation LEGAL NOTES

Litigation

Process helps the business community resolve actual disputes. Effective business leaders should develop an understand of the process

Plaintiff

the name of the party that files the lawsuit

Defendant

the name of the party who is sued

Counter claims/ counter suit

when the defendant makes claims against the plaintiff

third party defendant

the name for a defendant who was not named in the complaint but is later joined

Standing to sue:

Someone had the legal right to sue

To establish standing a plaintiff must allege

A case or controversy (legal wrong). A personal stake in the resolution

Personal Jurisdiction

Authority over the parties to the case on the part of the court.

How is personally jurisdiction obtained

Summons (notice that you are required to appear in court). Service of process (delivery of the summons)

How does a state obtain personal jurisdiction over a defendant who is out of state?

Long arms statues

Long arms statues is

Provide for the service of process beyond the boundaries of the state.

Minimum contacts test

Has the defendant committed a tort within the state? Does the defendant own property within the state that is the subject matter of the lawsuit? Has the defendant entered into a contact within the state or transacted the business that is the subject matter of the lawsuit within that state?

Extradition

voluntary turning in of prisoner from one state to another by the presiding governors.

Class action lawsuits

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

To certify a class in a class action suit, the party seeking certification must demonstrate

The class is so numerous that joinder of all members is impracticable. There are questions of law or fact common to the class (commonality). The claims or defense of the representative's parties are typical of the claims or defenses of the class. The representative parties will fairly and adequately protect the interest of the class.

WALMART STORES INC v. DUKES U.S SUPREME COURT

Former employees are bringing class action lawsuits and getting them certified. Walmart violated a law and have been discriminated against women pay vs male employes.

If class certification is denied

the class action lawsuit cannot move forward

can individual members of the failed class later bring their own separate lawsuit to recover potential damages

yes

Pre-trial procedures

1. Plaintiff files complaint

2. Complaints and summons are served on defendant

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

4. Court rules on motions.

5. Plaintiff files reply to answer

6. Attorneys conduct discovery procedure

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

8. Court conducts pretrial conference

Pre-trial conference

meeting between judge and attorney on both sides to evaluate what is necessary to move case to trail and establish dates.

Pleadings

Legal documents that are filed with a court to begin litigation process. Includes issues that are to be resolved.

Complaint

a written statement of the plaintiff's position and allegations

What happens after the complaint has been filed by the plaintiff

the court will issue the summons, and the officer will deliver the summons and a copy of the complaint to the defendant.

Affirmative defenses

defenses that will defeat the plaintiffs' claim.

Statute of limitations

when you want to sue someone, you have to sue them in a timely matter

Discover

Procedures by which one party obtains information relevant to the case from the other party or third persons

Standard for discovery:

Information sought must lead to evidence admissible during trial.

Scope of Discovery:

Discovery procedures are intended to be used freely by parties without court's supervision.

What happens when one side refuses to produce the requested evidence?

You are allowed to file a motion to compelled discovery: when the judge orders the other side to turn over materials, documents, videos, to you.

Abuse of discovery

Discovery imposes a tremendous burden on the judicial system. Must preserve all relevant data from being destroyed, altered, or mutilated

Trail steps:

1. Voir dire – parties and their attorneys select jury

2. Attorneys present opening statements

3. Plaintiff presents evidence through witness

4. Defendant moves for direct verdict/ judgement as a matter of law

5. Defendants present evidence through witness

6. Attorneys present closing arguments

7. Court instructs jury on the law

8. Jury deliberated and make decision (verdict)

9. Judge enters judgements on verdict

10. Losing parties filed posttrial motions