Civil Procedure: Chapter 5
State/Federal
Each state has their own rules.
Each state has their own rules of criminal procedure
Federal Rules of Civil Procedure
Federal/state has different filing cases, deadlines, and rules
The rules determine what claims can be made
How documents must be prepared
notice
Conduct of trials
Before a Civil Trial
Triggering Event
If you are binging a suit to someone, you must be harmed in some ways
What happened?
Whats the damage, injury, fraud?
Consult/hire attorney
Sometimes an attorney will say “i need to look into this”
Litigants pay for their own attorney (American Rule)
Under some circumstances loser pay (English Rule)
When Fee shifting occurs, it can offset frivilous lawsuits
Billing
Many civil attorneys - contingent fee agreement
Only pay a lawyer when they win/lose a case
Civil Cases - clients can often dismiss attorney without cause
Not the case in criminal cases (because there is a 6th amendment right to counsel)
In civil cases, there is no “right to a lawyer”
If this happens in a criminal case, you have to go through proceedings in order to prove that you can get representation
Pleadings
Written documents:
Complaint (plaintiff)
You did this!
Answer (defendant)
I did this, but not that!
Reply (plantiff)
Yes you did!
Complaint
Plantiff alleges jurisdiction
Set forth facts
on such place and time, defendant was driving negligability, and struck me with their car!
Demands relief
As a result of the accident, I was taken to the hospital, total dammages to the vehicle, medical bills,
This is what will make the whole
Answer
Defendant admits or denies
Both vehicles were driving on rout 8 - Admit
The defendant was driving negligably - deny
Places a defense
I was driving the speed limit
Possible Counterclaim
Counterclaim
When the defendant has a cause of action against the plantiff for the same set of events
Method of Service
Complaint is usually served with the writ of summons
AKA process
Action has been taken, and a reply is required
State and federal laws outline timeline requirements
Usually served by process server/sheriff
Personal Service
Physically handing process to the defendant (you’ve been served)
Ideal Method!
Rules and regulation regarding personal service
Proves that the person recieved the paperwork!
Document handing the person the documents.
If it’s not written down it didn’t happen
Substituted Service
Certified mail
Through the mail
Leaving documents at residence with competent occupant
What is a competent resident/occupant?
When suing a coproration?
Serve the designated agent.
Often the Secretary of State (state)
Look up the designated agent on google, and give the document to them
Competent Resident/occupant
Check the statute
Makes sure that procedural due process is followed
You can have a trial that is too far down the years, and a trial that is too quick
Defendants are unable to get evidence, a lawyer
Makes sure that everyone has a fair shot
Generally, the person must live there
Cannot be an adversary in the suit
If you are going through a divorse, don’t give a document meant for a husband to the wife!
Generally: Adult or minor (14-18)
If its a massive case, don’t leave documents with a 14 year old
If the kid doesn’t have a drivers lisence, how do you verify the age?
Wagner prefers giving it to an adult
Cannot have diminished capacity
Cannot be intoxicated, on drugs, mental incapactated
Make sure the person giving the documents document that the person has mental capacity
Constuctive Service
Publishing the notice of summons in the legal section of a newspaper
Statues establish where to publish and how long to publish it
In some cases, the statue require dual publication. If your in PA, and your suing a person in Illinois. You would publish in the county of the forem state (erie county) in an paper of record (erie times). You would also publish it in the paper of record in Illinois
Sometimes you must publish in a national paper (New York Times)
The state has control of property that is within its jurisdiction. If you are seizing a car, then the jurisdiction that the car was in, you would publish the summons in that jurisdiction.
A last resort
Expensive
Default
Defendant does not answer within the specified time
Judge can award the plantiff!
YAY!
If the defendant is in a major accident, medical incident, the judge can provide more time for them to file
Settlement Conference
Attorneys meet to disccuss possible settlement
If agreement cannot be reached, judicial mechanisms start
Kind of like a plea bargin
The clients may or may not be there
Motions
Be able to match cases, title of the case with the holding on the midterm
Be able to match the different motions
When the attorney wants the judge to make a ruling or act, the attorney will file a motion with the court
Always be aware of how judges accept motions (electronically vs in person)
Be aware of what the judges want in the motions
Common Motions
Motion to dismiss
Lack of Jurisdiction
Inadequate service
“we were not served properly”
Failure to state a claim for which relief can be granted
"you cannot sue anyone for anything”
Summary judgement
no factual dispute exists
A need for a trial does not exist
Prejudice v. Without Prejudice
Prejudice
The case cannot be refiled
Res Judicata, It’s done
Done for extreme error
A malicous prosecution that knows the person is innocent, but just doesn’t care
Its really hard to get a fair trial
Without Prejudice
Can be refiled
Parties are placed back into their original places
For techniqualities
“your honor, we would like this case to be dismissed with prejudice”
Motion to make more Definite and Certain
Bill of Particulars
When complaint contains vague allegations
“someone was behaving badly” → What does that mean?
You need more information
Motion to Quash Service of Process
When the plantiff does not follow the rules for serving a summons
They left the summons with a 12 year old
Motion to Inspect
Court grants a party access to private property
Must pertain to aspects of the suit
EX: Vehicle in an accident
inspect the car for paint/damage
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
Do not want this!! If you are practicing law and you recieve this, it harms your reputation
Motion for Sanctions
Used when a party wilfully fails to comply
One party fails to do what is needed (hand documents)
Sanctions can range from contempt to dismissal of the case in favor of the aggrieved
can range from having the party pay for the other’s legal fees to dimissing the case
Motion in Limine
(AKA Motion to Supress, motion to limit, or motion to exclude)
Used to prevent certain evidence from being introudced to jury
If the opposing counsel “opens the barn door” and say something that they are not supposed to, then “the horses come out”
Must be careful about what questions come out. Never ask a question you don’t know the answer to
Motion for Directed Verdict
Submitted after the case was presented before the jury
Assumes there is only one conclusion possible.
Negates the need for a jury
Happens when one side has not done anything, presented anything
Discovery
Court-supervised exchange of information
If you do not turn over discovery and do it properly, you can cost yourself the case, sanctions, pay fees. YOU MUST DO THIS PROPERLY
Idea is to level the playing field
Prevents Surprises at trial
You cannot bury information. It must be in workign order
Must be relevant information (to the case at hand, don’t go fishing for information)
Cannot ask for priviledge information
If you break discovery it will ruin your career
Communly used for discovery
documents
Police reports,
Oral Depositions
If attorneys want to make an objection, they msut make an on-the-stop objection. If there is disagreemnt about that, it will go to a judge.
Written Interrogatoreis
A series of questions, high power CEOs
Request for admissions or denials
We want to verify that the person “admitted or denied that this is their cellphone”
“yeah thats my cellphone”
PreTrial Confrence
Judge and Attorneys
Judge will refine the issues
Determine the number of witness
“Ill need at least 15”
Out - of - court settlement
We don’t want to waste valuable time!
Selection of Jury
Voir Dire - Examination of a juror’s qualifications for jury duty
Challange for cause - 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 Challenge - 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
Not evidence, they are roadmaps
Explains to jury why they are here
Plantiff’s attorneys opens the proceedings
Defendant’s attorney may open at this time
They can also reserve the right to wait
If you are really good at cross examination of witnesses, and your opening staement is not that great, then maybe you should wait closer to when you present your case
Witness and evidence for plaintiff are introduced (Case in chief)
prosecution has a case in chief
Defense does not have to do this
Witnesses
Subpoena - used to compel witness who refuses to appear (Know the difference between these two)
Subpoena Duces Tecum - Commands witness to produce documents
Examining Witnesses
Direct Examination - when the attorney questions a witness that he/she calls
Cross Examination - opposing attorney questions a witness
in 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 wtiness how they should answer
Not permitted on direct examination!
It is permitted on cross
The other side does not have the change to prepare the witness
it is suposed to be a vigerous test of the witness
Rules of Evidence:
Relevancy
Evidence - testimonial, demostrative, or physical must be relevant
Demonstrative - demonstrating
Logically tends to prove or disporove some issue of conseqeunce that is in dispute at the trial
Relevancy = Material (m) + Probative (p)
Governed by state laws or federal rules of evidence
Two Components of Relvancy
Probative - increases or decreases the probability of the existance of a fact
Materiality - is it an issue in the dispute between the parties
SO WHAT???
“The murder wepon was a specific knife, and this guy bought this specific knife on amazon”
Excluding Relevant Evidence
Unfair Prejudice
“You don’t need to show 100 photos of the dead body, that will prejudice the jury”
A really upsetting 911 phone call can only be played once
Needlessly presenting cumulative evidence
“We don’t need 200 soilders to testify the same way”
Competency
Evidence must be legally adeqeuate to be admitted
Non-expert witnesses testify to facts (firsthand information)
Expert Witness - can be used to draw professional conclusion
medical examiners, foresnic psychologists
Best Evidence Rule
Original documents over copy forms of evidence
If the original is not avalible and its not your fault, the copy can be allowed
The copy can be manipulated!
In forensic examination, waht type of pen, paper, used
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
Excited utterances
An Inciting Incident, a little bit of time to pass (30 minutes) “He just said he wanted to kill them!!!”
Present Sense Impression
You are driving down a road and you just blurt out “that’s steve driving a car”
Must be said within a minute of a event happening
Dying Declarations
“It was me and your uncle vinny who robbed a bank” - then die
Communicative Privilege
5th Ammendment - self incrimiantion
Spousal Testimony
Doctor - patient
Attorney - client
Clergy - member
Post-Trial Motions
Judgement not withstanding the Verdict (JNOV)
Judge feels that reasonable people could not have reached that verdict
Something went off of the tracks
Does not happen often
Motion for a new trial
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 trial court or appellate court to add or subtract from the amount of the award
Move from 2.3 million to 1.6 million
45 Questions, 100 points