Trials and Appeals. Luciana Carvalho

Transcription

1 V Congresso Internacional da ABRATES Associação Brasileira de Tradutores e Intérpretes Rio de Janeiro Brasil 20 e 21 de setembro de 2014 Trials and Appeals Luciana Carvalho luciana.carvalho@tradjuris.com.br

2 Introduction Nesta palestra serão abordadas as características jurídicas, textuais e culturais de duas fases processuais: a do julgamento de primeira instância, por meio de complaints (petições iniciais) e answers (contestações), e a do julgamento recursal em segunda instância, por meio da análise do processo de appeal no sistema americano comparativamente ao processo civil brasileiro. Hora: 14h00 às 15h30 Local: Sala E 2

3 Important facts about the U.S. Justice System Since we are exploring a foreign legal system the American Legal System, we should have some of its features in mind: There is no unified or uniform civil or criminal process in the United States The Federal System has a court process at the national level, which is governed by the Federal Rules of Civil Procedure and by a number of important constitutional protections and issues The States have their own rules concerning the legal process No two states have identical judicial systems 3

4 Civil Litigation Part I

5 Introduction This pack focuses on civil litigation in the United States We will focus on the features and norms that govern civil procedure across the Federal system because there is uniform legislation on the matter (the FRCP) 5

6 Civil Litigation Defined Civil litigation involves disputes between parties over any matter that is not governed by an administrative body. Civil litigation also differs from criminal litigation, which is governened by the Federal Rules of Criminal Procedure, and also implicate a number of important constitutional protections. In civil litigation, the parties seek: o o money damages [perdas e danos] specific performance [prestação / execução da obrigação] Lawyers specializing in litigation are called trial lawyers or litigators. Since civil litigation is a very broad field involving an enormous range of disputes, lawyers generally specialize in one or two areas of law (e.g. Personal Injury, Environmental Law, Family Law, etc.) Parties representing themselves appear pro se, that is, without a lawyer. 6

7 Who s who in Civil Litigation? Who are these people?

8 Who s who in Civil Litigation? English plaintiff defendant judge court plaintiff s attorney defendant s attorney witness juror jury court reporter bailiff expert witness Portuguese oficial de justiça (aprox.) A court attendant entrusted with duties such as the maintenance of order in a courtroom during a trial. 8

9 Who s who in Civil Litigation? Words that collocate with party. English third-party opposing party losing party winning/prevailing party indispensible party necessary party proper party aggrieved / injured party interested party guilty party innocent party intervening party / intervenor Portuguese 9

10 Issues to consider before Litigating Jurisdiction and Venue [Competência e Foro] The defendant may challenge the plaintiff s choice of jurisdiction Jurisdiction refers to the type of court which will have authority to review the dispute (e.g. federal or state court?) Venue refers to the place in which the case is brought (e.g which federal court? Timing [Tempestividade] The time by which certain actions and events must take place are very important in federal civil litigation Objections not raised by a particular time in the proceeding are deemed to have been waived The Federal Rules of Civil Procedure set forth the timetable by which certain events must take place Dates established by court order also must be respected Rules of Civil Procedure [Lei de Processo Civil] In the US, the Rules of Civil Procedure are also defined by case law, so it is very important counsel researches such case law carefully The Federal Rules of Civil Procedure (FRCP) is the most important body of rules in civil litigation at the national level Other rules: The Federal Rules of Evidence Local rules of the district 10

11 Aspects of Civil Litigation in short These are the main stages of civil litigation in the American System. Below each stage, you will find the highlights of each one. Pleadings Pretrial discovery Trial and Judgment Appeal Eforcement complaint summonsing answer evidence statements waiver of jury trial jury picking bench trial jury trial judgment affirmed judgment denied judgment reversed judgment vacated writ of execution bank account garnishment liens wage garnishment judgment remanded 11

12 Pleadings Complaint Summons / Service Answer / Counterclaim Reply The pleadings are the consecutive statements, allegations, and counterallegations made by plaintiff and defendant, or prosecutor and accused, in a legal proceeding. Therefore, they include: 1. complaint (petição inicial) 2. summons (citação) 3. answer (contestação). A civil action is commenced by filing a complaint with the court. (Rule 3, FRCP). Next, the defendant is summoned. A summons is an order by the court clerk requiring a response by defendant. Complaint and summons must be delivered i.e. serviced to other party or parties to lawsuit. Then, the defendant files an answer to respond to the complaint. The defendant may also file a counterclaim (reconvenção) In the case of a counterclaim, the other party has to file a reply (resposta à reconvenção). 12

13 Pre Trial Discovery Discovery (fase de produção de provas) is the fact-gathering process All parties participate Discovery is carried out through: 1. written interrogatories (depoimentos escritos) 2. requests for production of documents and things (pedido de produção de documentos ou coisas) 3. oral depositions (depoimentos orais) 4. medical examination (perícia médica) upon motion, i.e. request to the court 5. automatic disclosure (compartilhamento obrigatório de provas) required of certain basic information and documents pertaining to the case (i.e. no request to the court needed) In this stage, parties may also: Cultural Note! In the Brazilian System, this stage is done before the court. In other words, it is not pre-trial stage, and the judge oversees the entire discovery phase. 1. reach a settlement (chegar a um acordo), since disovery helps the parties analyze the strength of their case. The judge may be present or even schedule settlement 2. waive their right to a jury trial (renunciar o direito a um julgamento pelo júri) or proceed to the jury picking (escolha dos jurados) phase (or voir dire) The goal of the voir dire is to eliminate all members of the panel who have an obvious reason why they might not render an impartial decision in the case. 13

14 Trial and Judgment During trial, the parties present the evidence to the finder of fact (i.e. the judge or jury) Trial starts with opening statements of plaintiff, followed by opening statements by defendant Evidence includes: testimony, documentary evidence, illustrative evidence, etc. The witnesses are subject to: 1. direct examination by the sponsoring party, and to cross-examination by opposing party 2. re-direct examination by party sponsoring the witness, and re-cross by the opposing party Just as in the criminal procedure, trial ends with the closing arguments of counsel When a trial is heard by a jury, it is called a jury trial, and a verdict is given If the parties waive the right to a jury, the judge will be finder of fact in a bench trial. The judge issues a ruling or passes judgment on the case 14

15 Appeal and Enforcement The appeal system (sistema de recursos) and forms of enforcement (modalidades de execução) of court decisions. Pleadings Pretrial discovery Trial and Judgment Appeal Eforcement complaint summonsing answer evidence statements waiver of jury trial jury picking bench trial jury trial judgment affirmed judgment denied judgment reversed judgment vacated writ of execution bank account garnishment liens wage garnishment judgment remanded 15

16 Complaints Part II

17 Definition of Complaint complaint (n.) 1. The initial pleading that starts a civil action and states the basis for the court s jurisdiction, the basis for the plaintiff s claim, and the demand for relief. In some states, this pleading is called a petition. 2. Criminal law. A formal charge accusing a person of an offense. Please note: The term brief can also be used to refer to a complaint, but it is most used to refer to an appeal brief. brief (n.) 1. A written statement setting out the legal contentions of a party in litigation, especially on apeal; a document prepared by counsel as the bais for arguing a case, consisting of legal and factual arguments and the authorities in support of them. 2. A lawyer s document that abstracts the pleadings and facts to inform another lawyer or client about the case. Fonte: Black s Law Dictionary, 8th Edition. 17

18 Definition of Complaint According to its definition, a civil complaint must state: a) the basis for the court s jurisdiction [fundamentação da competência do órgão julgador] b) the basis for the plaintiff s claim [causa de pedir] c) the demand for relief [pedido] 18

19 Reading & Writing a Complaint (or briefs) The complaint is one of the attorney s most powerful tools. A good complaint can be used, above all, to persuade the court. If the complaint does not persuade, it is unlikely the oral argument [sustentação oral] will. A good complaint shows understanding of: audience (i.e. the court of competent jurisdiction) purpose (i.e. the demand for relief) facts of the case law (case law & statutory law) [jurisprudência & legislação] format 19

20 Steps to Writing (& Reading) a Complaint #1 In many common law jurisdictions, the courts establish standard forms to be completed when filing a complaint. In this pack, we are using the forms of the New York District Court, Southern District of New York*, which is a Federal Court. 1. Civil cover sheet: This document identifies the case to the court, and is required to be submitted together with the complaint. 2. Complaint: This is a general form for writing your complaint. 3. Answer: This is a general form for writing an answer to a complaint. It also includes the Affirmation of Service [Citação] *These documents are also available in the online classroom, just below the link to this pack. 20

21 Steps to Writing (& Reading) a Complaint #2 Second, you will find: 1. Names of the parties: plaintiff/defendant 2. Basis for jurisdiction: in the case of a District Court, the basis usually involves federal laws (i.e. a lot of corporate, commerce, and tax law, but also interstate matters) 3. Statement of claim [causa de pedir] 4. Injuries sustained [danos sofridos] 5. Relief [pedido] 21

22 Steps to Writing (& Reading) a Complaint #2 We will now go through the 5 items listed in the previous slide (and repeated below) to give you an overview of the necessary information and language functions you may come across under each one of them. 1. Names 2. Basis for Jurisdiction 3. Statement of claim 4. Injuries sustained 5. Relief 22

23 2.1 Names Use full names of the parties The names usually appear one below the other plaintiff first, defendant, second, and in between the word against or vs. For example: John Doe against Jane Doe Cultural Note! Unlike what happens in Brazil, when the names of the parties first appear in the complaint, they are not followed by the addresses. In the common law, addresses and contact information are provided in a specific field or even in a separate sheet. 23

24 2.2 Basis for Jurisdiction Rule 8(a) of the Federal Rules of Civil Procedure requires a plaintiff to plead the basis for the court s jurisdiction in his or her complaint. In this section, you must provide statutory or case law-based information on why this court is the court of competent jurisdiction in this case. Language functions you may come across: Under 14 of the Commercial Code... According to the United States Constitution... The basis for federal court jurisction lies in section... Cultural Note! Pursuant to Federal Rule of Civil Procedure 12(b)(1)... Plaintiffs argue that this Court has federal question jurisdiction over its claim under 28 U.S.C and 1331 and that Peacock v. Thomas is not applicable. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. 451, This action is authorized and instituted pursuant to Section 7(b) of the Employement Act of 1967, as amended, 29 U.S.C... This section is not required to be expressly mentioned in the Brazilian system. 24

25 2.3 Statement of Claim (1/2) This section tells a story by briefly stating the facts of the case. It is usually written based on questions such as the ones below: Where did the events giving rise to the claim occur? On what date? What were the facts involved? What happened to your client? Who did what? Was anyone else involved? Who else saw what happened? Cultural Note! Common law legal professionals tend to value objectivity and clarity. Sometimes this section has a maximum number of words set by the court. 25

26 2.3 Statement of Claim (2/2) Language functions : On July 24, 2007 the plaintiff... Since at least October, 2005, Defendant engaged in unlawful employment practices at its Desoto, Missouri facility in violation of Section 4(d) of the ADEA, 29 U.S.C. 623 (d). Defendant discharged Yvonne Loskot from her position as Certified Optician because of her age, 67. * 26

27 2.4 Injury Sustained Describes the injuries sustained by client. Mentions the kind of damages and losses involved Mentions required measures the claimant had to take Language functions : The effect of the practices complained of in paragraph 7 above has been to deprive Yvonne Loskot of equal employment opportunities and otherwise adversely affect her status as an employee because of her age*. * a2599ae_clm6iigah.pdf 27

28 2.5 Relief (1/2) States what client is asking the court do for claimant. Mentions the amount of monetary compensation required Mentions the basis of compensation Language functions: The plaintiff seeks to obtain a judgment the amount of $210, against the defendant for the recovery of liquidated damages, attorney s fees and costs owed to plaintiffs. Claimant further requests an award granting Claimant such other and further relief as the Court deems just and proper. Cultural Note! This last clause is called a Catch all Clause because, according to US Federal Rules of Civil Procedure (Rule 54(c)) even if the party has not demanded such relief in the party s pleadings, the final judgment shall grant the relief to which the party is entitled. 28

29 2.5 Relief (2/2) Example of complete Prayer for relief section Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant, its officers, successors, assigns and all persons in active concert or participation with it, from engaging in the unlawful discharge of employees because of their age and any other employment practice which discriminates on the basis of age against individuals 40 years of age and older. B. Order Defendant to institute and carry out policies, practices and programs which provide equal employment opportunities for individuals 40 years of age and older, and which eradicate the effects of its past and present unlawful employment practices. C. Grant a judgment requiring Defendant to pay appropriate back wages in an amount to be determined at trial, an equal sum as liquidated damages, and prejudgment interest to Yvonne Loskot whose wages are being unlawfully withheld as a result of the acts complained of in Paragraph 7 above. D. Order Defendant to make whole all individuals adversely affected by the unlawful practices described above, by providing the affirmative relief necessary to eradicate the effects of its unlawful practices, including but not limited to rightful-place reinstatement of Yvonne Loskot or front pay in lieu of reinstatement. E. Grant such further relief as the Court deems necessary and proper in the public interest. F. Award the Commission its costs of this action. JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its complaint. Respectfully submitted, General Counsel 29

30 Answers Part III

31 Definition of Answer answer(n.) 1. A defendant s first pleading that addresses the merits of the case, usually by denying the plaintiff s allegations. An answer usually sets forth the defendant s defenses and counterclaims. 2. A person s, especially a witness s response to a question posed. Please note: The term answer can also be used as a verb with several different meanings. answer (v.) 1. To respond to a question, a pleading, or a discovery request <the company failed to answer the interrogatories within 30 days>. 2. To assume the liability of another <a guarantor answers for another person s debt>. 3. To pay (a debt or other liability) <she promised to answer damages out of her own estate>. Fonte: Black s Law Dictionary, 8th Edition. 31

32 Common Responses to a Complaint 1. Motion to Dismiss (or Demurrer) [Exceção de inépcia da petição inicial] A type of motion where the defendant asserts that a response is unnecessary due to a legal defect in the complaint. 2. Motion to Strike [Pedido de exclusão de provas ou declarações impróprias ou irrelevantes] This motion is similar to a demurrer but is used to request the Court to strike (void) an answer due to a defect within it. 3. Motion to Quash [Pedido de anulação] A request for the Court to quash (void) service of the summons and complaint. The motion is usually made on the grounds that the litigant is not under the jurisdiction of the Court. 4. Answer [Contestação] A response from the defendant setting forth the grounds of the defense to the allegations contained within the complaint or the response from the plaintiff setting forth the grounds of the defense to the allegations contained within the cross-complaint. 5. General Denial [Negativa geral, Defesa direta de mérito] A response from the defendant denying all allegations contained within the complaint or the response from the plaintiff denying all allegations within the cross-complaint. If a defendant files any motion or demurrer, hearing date for that motion will be set prior to the trial process. Motions have a minimum 16 court day notice period to allow for the opposing side to prepare for the hearing. If the Defendant files an Answer or a General Denial the case must be set for trial. 32

33 Civil Litigation Breakdown The Complaint, Answer and Reply jointly make the Pleadings. Complaint Answer Reply Discovery Summary Judgment Pretrial/ Settlement Conference Trial Pleadings Persuasion In between the steps indicated above, the parties usuall file motions (requests) to the court. Motions are used to: express the dissatisfaction by a party with regard to certain events ask for something to be done in order to provide relief (satisfaction) 33

34 Complaint v. Answer Complaint Filed by the plaintiff Answer Filed by the defendant Contains the facts of the case Divided in causes of action so if the plaintiff loses one claim (issue) of a case he will not necessarily lose all claims Organized in items denying every fact stated in the complaint Every fact not denied will be admitted by the court May present new matter (affirmative defenses), which will be addressed by the plaintiff in the Reply May present counterclaims [reconvenção] 34

35 Answer Forms & Samples In many common law jurisdictions, the courts offer standard forms to be completed when submitting an answer to a complaint. Here, you can find a 3 examples: 1. Written answer in Action for Money Only from the Civil Court of the City of New York 2. Defendant s Answer/Counter Claim from the North Dakota Supreme Court 3. Answer with defenses from the Kansas Judicial Council And below are two other examples, but this time you will see what authentic answers look like: 1. Shepard Fairey v. The Associated Press Answer, Affirmative Defenses and Courterclaims of Defendant 2. Popular Leasing U.S.A. v. Yizhac Arvilli Answer, Affirmative Defenses and Courterclaims of Defendant *Documents 1 to 3 are also available in the online classroom, just below the link to this pack. 35

36 Reading an Answer We will now start showing the elements of an answer in a civil case in the common law system. In an answer to a civil complaint the defendant can: a) deny all the claims in the complaint (item by item) b) present new matter (or affirmative defenses) c) make counterclaims d) pray for relief 36

37 Steps to Reading (& Writing) an Answer An answer can be generally structured as follows: 1. Names of the parties & general lawsuit information 2. Answer to the complaint General Item by item 3. Affirmative defenses 4. Prayer for relief [pedido] We will take a look at each one of these sections separately in the next slides. 37

38 1. Names of the parties & lawsuit info L i n e Docket number Number of documents filed so far Filing date Number of pages n u m b e r Name of the court Name of the judge P a r t i e s Docket number Content of the Answer 38

39 2.1 Answer to the complaint: General In this section, defendant usually makes general denials after which defendant usually presents specific denials (see next slide). 39

40 2.2 Answer to the complaint: Item by item In this section, defendant answers plaintiff s allegations item by item, identifying the paragraphs or the lines in the complaint. 40

41 3. Affirmative Defenses In this section, Defendant presents justifications or excuses to limit, excuse or avoid defendant s liability. Rule 8 of the Federal Rules of Civil Procedure specifically enumerates the following defenses: "accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense." 41

42 4. Prayer for Relief 42

43 Appeals Part IV

44 Definição de Appeal De acordo com o American Heritage: a) The transfer of a case from a lower to a higher court for a new hearing. (A transferência de uma ação para uma instância superior para novo julgamento) b) A case so transferred. (A ação transferida.) c) A request for a new hearing.(pedido de novo julgamento) 44

45 Quais as partes de um appeal? Um appeal envolve duas partes: a parte apelante ou recorrente (appellant ou plaintiff in error) que procura alterar a decisão proferida por instância inferior (lower court) e a parte apelada ou recorrida, chamada appellee ou respondent. 45

46 Quais os instrumentos da apelação? No sistema da common law, um appeal, em regra, não tem início com o instrumento de apelação (appellate brief). O appellant, em primeiro lugar, deve informar em notice of appeal sua intenção de recorrer. Só depois o appellant entra com a apelação propriamente dita. Em seguida, a parte contrária, submete um responsive brief ao qual o recorrente pode responder com um final brief. 46

47 Notice of appeal Cultural Note! A figura da notice of appeal é interessante, pois a mera manifestação da intenção de recorrer de uma das partes acaba abrindo espaço para acordos. É alto o índice de acordos entre a apresentação da notice of appeal e as sustentações orais (oral arguments), ou até mesmo antes da protocolização do próprio recurso - apesar de a prática de submeter notice of appeal sem a intenção de dar seguimento ao recurso ser considerada pouco ética. 47

48 Appeal = recurso Vale ressaltar que o termo appeal corresponde ao termo recurso em português e não apenas ao recurso de apelação. Assim, um recurso administrativo, por exemplo, também é um tipo de appeal. 48

49 Possíveis desfechos de um appeal a) sustained recurso mantido / julgado procedente b) denied recurso negado / julgado improcedente c) reversed recurso reformado 49

50 Mais desfechos Além dos anteriores, em muitos casos, o desfecho de uma appeal é o de os autos serem devolvidos à instância inferior com determinação para a realização de novos procedimentos ou até mesmo com orientação de julgamento, respectivamente. a) appeal remanded for further proceedings b1) appeal remanded with direction to render judgment b2) appeal remanded with direction to dismiss 50

51 Quem julga? The right to appeal Nos Estados Unidos o direito de recorrer não é absoluto e é concedido de duas formas: a) por questão de direito (matter of right) nos casos em que a lei dispõe que a parte, naquele determinado caso, possui direito de recorrer; b) por discricionaridade da instância superior (discretion) como no caso da Suprema Corte, por exemplo, que é um tribunal com poder discricionário para selecionar, entre as centenas de recursos que recebe ao ano, aquilo que vai julgar. Em outras palavras, os membros da Suprema Corte passam mais tempo decidindo sobre aquilo que vão julgar que, propriamente, julgando. Um dos critérios adotados por este tribunal é a ação objeto da apelação ter reflexo nacional ou em grande parcela da população. Por essa e outras razões, diferentemente do STF, a Suprema Corte não é um tribunal constitucional. 51

52 Obrigada! 52

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