Chapter 3 Litigation

plaintiff

party that begins the lawsuit in a civil case

defendant

alleged wrongdoer; has to defend against plaintiff’s claims

plaintiff’s standing

issue has to be ripe (claim ready for litigation), issue has to be moot (remedy wont help the plaintiff), and personal jurisdiction is court’s jurisdiction over parties

burden of proof

level at which the plaintiff must convince the trier of fact

beyond a reasonable doubt

criminal; highest burden of proof

preponderance of evidence

more probable than not (lowest, this is it most of the time)

clear and convincing

more than a preponderance, but less than beyond a reasonable doubt (medium, only if statute calls for it)

burden of persuasion

this is what the plaintiff has; will never shift; persuading the trier of fact

burden of going forward

this might shift to D, then shift back to P (P brings up a fact and D has to refute the fact)

flow of a court case (typical)

complaint then summons then service of process then answer/ responsive pleadings then motions then discovery then mediation then final resolution

complaint must have

jurisdiction of the court (has it been brought to the right court), facts specific/ basis of claim (usually numbered paragraphs, very specific), and claim for relief/ statement of relief sought (you better state what you want)

summons

order to D to appear and answer complaint

service of process

D is served a copy of the complaint and summons after it’s been filed with the court, sometimes P sends early in hopes of reaching a settlement; must use a neutral process service (ex: sheriff) to serve

answer

D must file written answer to complaint, adressing issues of fact and law; anything filed with the court must be served to all other parties

motions

either party can get some temporary relief; motion for summary judgement (one side, usually D, asks judge to rule based on just pleadings and no other evidence)

discovery

written interrogatories (written questions submitted to other side that they must answer in writing), depositories (bring person in and ask them questions on the record), request for production of documents (can get your hands on almost anything), and physical inspection

pre-trail conference, ADR

settlements can happen at any time; judges encourage this

resolutions

dismiss, settle, or a trial

jury selection