• The American adversary system of civil procedure is probably better known than any other to both lawyers and nonlawyers across the globe. Depicted in movies and books distributed to audiences worldwide, the drama of attorney confrontation over the evidence is ubiquitous.

• As lawyers from states with civilian and other systems know, the common law trial is an unusual process, which not only gives the judge little or no role in gathering or sifting the evidence but also leaves the verdict entirely to lay jurors, even in complicated commercial lawsuits

• Given the central role of the jury trial as the model for all common law litigation—even litigation before a judge alone—it is not unfair to say that the trial as common lawyers think of it has no counterpart in civilian procedure at all

• The process of litigation between private parties in the United States is lengthy and expensive

  • The more complicated the facts of the dispute, the more people involved in it, or the longer the course of dealings between the parties prior to the dispute, the lengthier and more expensive the litigation is.

    • The greatest source of this delay and cost is rarely the trial itself but rather the preliminary stages, during which parties are identified, evidence is gathered, and legal claims are refined

      • As a result of such a pretrial effort, however, the parties are often able to reach a settlement of their claims prior to trial, and the vast majority of civil suits, even though they have been filed in courts and pursued over several years, end in a settlement negotiated between the parties rather than a judgment decreed by the jury or the judge

• Pretrial settlements, however, depend on the parties being in greater fear of the decree that they might receive from the court than from the compromise they will have to reach, and this balance is not always predictable

  • So even if a case never reaches the courtroom, it is usually treated as if it will, and the entire process is carried out, all according to the law governing civil litigation.

• Civil litigation is regulated by constitutional provisions, statutes, national and local court rules, and judicial decisions, but the bulk of this regulation comes from court rules.

  • The rules of civil procedure govern most questions, although matters of evidence are subject to the rules of evidence.

  • Most states have adopted these rules, modeling them after the federal rules.

    • Both types of rules are—like all codes in the United States— subject to considerable bodies of interpretative judicial precedent.

  • The conduct of the lawyers in carrying out these rules is also subject to regulation by the courts and the bar, according not only to the rules of procedure but also to professional standards of conduct

• The preparation and conduct of a civil trial are thus highly regulated and follow a general pattern, following these steps: Initial Investigation, Drafting and Service of Pleadings, Preliminary Motions, Discovery, Summary Motions, Pretrial Conference, Jury Selection, Trial, Jury Instruction, Verdict and Judgment, Post-trial Motions, Appeal, Execution, Settlements and Alternative Dispute Resolution.

Initial Investigation

• Although formal civil litigation begins with the service of a pleading by the plaintiff upon the defendant, in a manner of speaking the litigation begins much earlier—when the person, which may be a government or corporation, an individual, or a group, first discusses its problems with its lawyers.

  • At that time, the lawyers must listen to the problems described and begin a process of determining whether there is a legal remedy against another party that will alleviate their client’s problem

  • This process then involves careful examination of both the facts and the law involved in the client’s problem.

• The legal research includes researching and considering not only what doctrines of law might have been violated by the other party but also what remedies might be available against that party for those violations

  • The lawyer must research many questions to answer the fundamental query of what remedy can be had

  • The defenses and counterclaims the other party might have must also be considered and researched

Drafting and Service of Pleadings

• The old common law system of writs depended upon the form of the initial pleadings filed in the court.

• In the writ system, a plaintiff was required to choose a form of writ that was both recognized by the law and sufficiently fit the facts for the court to find that the plaintiff was entitled to the relief required by that writ from the defendant.

  • The modern rules of pleading are much more flexible, but they still reflect something of the old pleadings tradition.

• In most civil actions, the initial pleading is the complaint.

  • The plaintiff must state why the court has jurisdiction over its claim, allege sufficient facts to put the defendant on notice of the allegations of fact and claims of law and equity that are being brought, and ask for the relief the plaintiff seeks

  • In federal courts, a complaint arising on a question of federal law is subject to the “well-pleaded complaint” rule, according to which the reliance of the claim on the federal Constitution or a U.S. statute or doctrine must be clearly apparent in the text, or “on the face” of the complaint.

  • The complaint must then be filed in the court and also served upon the defendant (or defendants), which is done usually by a person handing the complaint to the defendant, with a summons to appear before the court in which the complaint was filed.

• The defendant has a short time, usually twenty days, to file an answer, in which the defendant admits or denies the allegations of the plaintiff ’s complaint, and (if the defendant does not want to give the relief sought by the plaintiff) to deny that the plaintiff is entitled to any relief. Instead of filing an answer, the defendant could move to dismiss the complaint.

Preliminary Motions

• After the complaint is filed, each side (but most often the defense) is likely to make a series of motions, seeking to dismiss the case or at least limit the scope of the suit.

  • These motions may take several forms and may be designed to accomplish many ends beyond those that appear on their face.

• The most important form of preliminary motion is the motion to dismiss, which may be based on procedural or substantive grounds.

  • On procedural grounds, the defendant may move to dismiss the case because the court lacks jurisdiction over the subject matter of the plaintiff ’s complaint or lacks jurisdiction over the person of the defendant

• On substantive grounds, the defendant moves to dismiss the complaint, under the well-known subpart, Rule 12(b)(6), for “failure to state a claim upon which relief can be granted.”

  • This is an argument that the terms described in the complaint are just not enough to warrant the relief sought, that even if the plaintiff could prove all it has argued, the plaintiff cannot win what it seeks from the defendant.

Discovery

• Often the longest period of trial preparation is the discovery phase.

• In the common law system, discovery is managed almost entirely by the counsel for the parties.

  • The judge acts only as an arbiter or referee when counsel disagree over some matter, such as the application of a rule to a request for some evidence or a refusal to provide it.

  • The management— and inquiry—by judges in the civilian system at this stage is very rare indeed in the common law.

• As in criminal procedure, the basic purpose of discovery is to ensure that both sides have adequate knowledge of the evidence known to the other.

  • When the rules of discovery are followed, both sides are able to prepare their cases with full knowledge of the other’s case.

Summary Motions

• Following discovery, either party often moves for judgment, either as a judgment on the pleadings, which is rather more like a motion to dismiss but incorporates some information outside the pleadings, or as a motion for summary judgment, which is allowable after discovery if the case can be decided solely on undisputed facts.

  • After such motions, particularly if there are sufficient stipulations of facts between the parties, the court might hear arguments on the law alone, and it can render judgment without a trial.

Pretrial Conference

• Although it is a rather informal affair in many state courts, in federal courts the pretrial conference is a formal discussion of the case prior to trial, between all the attorneys and the judge.

• Prior to the conference, each side prepares draft pretrial orders, placing the arguments, evidence, and results in the light they believe most favors their side of the case.

• During the conference, motions to exclude certain arguments or evidence are often argued and resolved.

• When both sides are well prepared for the conference and both are behaving professionally, considerable amounts of the evidence may be stipulated as appropriate for admission.

Jury Selection

• The process of jury selection, or jury voir dire, begins with the selection of a venire, or jury pool. This is usually a large group of people summoned by the clerk of the court from a list randomly drawn from the rolls of registered voters living in the court’s jurisdiction.

• Members of the venire are then examined. This usually takes the form of a series of questions, asked by the lawyers for both sides, as well as by the judge.

  • Following the answers to these questions, the judge selects jurors from the venire.

• Attorneys for each side may challenge potential jurors prior to selection, either challenging them peremptorily, in which case the challenging attorney need not give a reason, or for cause, such as appearing to have an interest in the case or lacking capacity to serve.

Trial

• After a jury is impaneled, the trial proceeds in four main stages: opening statements, plaintiff ’s evidence, defense evidence, and closing arguments. Each is usually given a particular number of days, half-days, or hours in the pretrial order.

• In the opening statements, each side attempts to explain to the jurors what the case is about

  • Each side argues its theory of who has sued whom, what the evidence is, and why their side is entitled to win under the appropriate standards of law.

  • The plaintiff goes first, summarizing the evidence that shows the plaintiff is entitled to relief, as well as the reasons that relief is possible under the law.

  • The defendant goes second, arguing not only that the plaintiff cannot prove its case but also that there are facts to support any affirmative defenses or counterclaims that are offered.

• The presentation of evidence is managed almost exclusively by counsel.

• Evidence includes the production of documents and tangible evidence, as well as the examination of witnesses.

• The plaintiff may offer witnesses, asking witnesses favorable to its side general questions to tell what they know of the case. The defendant may cross-examine them with more leading questions.

• At the end of the plaintiff ’s case, the defense often moves to dismiss the case by granting a directed verdict.

Jury Instructions

• One of the most important aspects of the common law trial is the instruction of the jury.

• Most instructions are provided by the attorneys to the judge, and the attorneys usually draft instructions that place the law or the evidence in the light most favorable to their side.

• The judge reads through the proposed instructions and may add instructions either drafted in chambers or from pattern books of instructions.

Verdict and Judgment

• In most states and in the federal courts, the jury must reach a verdict that all of the members agree upon.

• Juries usually are asked to bring in general verdicts, such as whether a defendant is liable to the plaintiff, or how many dollars of harm a plaintiff has suffered that must be compensated by the defendant.

• If a verdict is entered for the plaintiff, the court usually enters a judgment, decreeing that the defendant must give to the plaintiff the relief sought.

  • When this is an amount of money in damages, the court usually enters the dollar amount, subject to interest until it is paid. When it is an injunction, the court enters an order specifying what the defendant can or cannot do.

• If the verdict is entered for the defendant, the court enters an order dismissing the case.

Post-Trial Motions

• The end of the trial is hardly the end of the case. Three later phases may well take as much or more time as the preparation and trial itself

  • The first of these is usually expeditious—the filing and resolution of post-trial motions. The other two may be much more difficult—appeal, if one is taken, and execution of judgment, if there is resistance by the defense.

• Post-trial motions are usually made by the losing party.

Appeal

• After the usual post-trial motions, it is quite likely that the losing party will appeal the judgment against it to a higher court.

• The appellant takes the appeal, first by paying a fee and filing a notice of appeal with the trial court clerk and with opposing counsel within thirty days of the entry of judgment or of the resolution of the last post-trial motion.

• Once an appeal has been filed, the clerk transmits the record, which includes the original papers and exhibits filed in the trial court, any transcripts of proceedings, and a certified copy of the docket sheet.

• The court then decides whether to hear the lawyers in oral argument on the appeal. This is common in state courts and rare in federal court.

• The decisions of appeals courts are usually handed down by panels of three, sometimes with the concurrence of other members of that court, even though they only read the opinion and did not consider the evidence or argument.

Execution

• In many cases, winning the judgment is not enough. The plaintiff (or the defendant pursuing a counterclaim) who wins relief usually drafts the judgment that the court enters.

  • The losing party, however, quite frequently attempts to delay or avoid doing what the court has ordered.

• If the court has entered an injunction and the party enjoined violates the injunction, then the winning party moves the court for a hearing to show cause, at which the losing party may be held in contempt of court.

• If the court has entered an order for damages, it is the responsibility of the losing party to pay the damages.

  • If the losing party does not do so in a timely manner, the winning party has to seek formal execution of the order.

Settlements and Alternative Dispute Resolutions

• The most common form of settlement is through direct negotiation of the parties through their lawyers.

  • An agreement reached in this manner must be agreed to by the parties, and it must be approved by the court.

• Two forms of settlement may result from work with a third party— mediation and arbitration.

• Mediation is the use of a neutral third party to assist in negotiation.

• Arbitration is the use of a third party by agreement to decide disputes between the plaintiff and defendant, in lieu of hearing the dispute in courts.