Civil Procedure. The Origin of a Lawsuit. The Resolution of Private Disputes Chapter 2 Part 2 Civil Procedure

Transcription

1 The Resolution of Private Disputes Chapter 2 Part 2 Civil Procedure Civil procedure is the set of legal rules governing the conduct of a trial court case between two private parties. Civil Procedure Adversarial system Burden of proof: plaintiff must prove by a preponderance of the evidence (51%) to prevail at trial (appeals courts, some COA s may have different burden) The Origin of a Lawsuit The Incident The Lawyer Filing the Case 1

2 Service of the Summons The summons notifies the defendant that he is being sued. Names plaintiff and time of appearance. Must be properly served. The Pleadings Documents the parties file with the court wherein they state their respective claims, denials, and defenses. Includes complaint, answer, and reply. The Complaint Gives notice to defendant and states plaintiff s claim. Must contain sufficient facts to show plaintiff is entitled to relief. Most states require "fact" pleading (more detail, specificity) Federal allows "notice" pleading Must include cause(s) of action. Must also state remedy sought by plaintiff. e.g., Monetary damages, specific performance, injunction See: (form complaint) See: (written complaint) 2

3 Causes of Action The grounds (as violation of a right) that entitle a plaintiff to bring a suit Examples: Negligence, assault, defamation, breach of contract, fraud, invasion of privacy, trademark infringement All complaints must have at least one cause of action A complaint may have multiple causes of action The Answer Defendant s Response to a Complaint Some jx s allow general denial. Rare, because some facts in complaint are almost always true More commonly, specific denial Sentence-by-sentence or paragraph-by-paragraph analysis of the complaint, denying only those allegations that defendant intends to contest. Admits, denies, or states defendant has insufficient information to admit or deny plaintiff s allegations. Alternatively may contain an affirmative defense or a counterclaim. Affirmative defense entitles defendant to win case even if of plaintiff s allegations are true. e.g., fraud, lack of capacity, illegality, statute of frauds Counterclaim a new claim by defendant arising from the matters in the complaint. If defendant wins, he is awarded a remedy, unlike with a denial The Reply Plaintiff s response to an affirmative defense or counterclaim. Analogous to an answer, but filed by the plaintiff after a counterclaim or affirmative defense. 3

4 Motion to Dismiss Motion: An application made to a court or judge to obtain an order, ruling, or direction Order: an authoritative command issued by the court MtD: Made by defendant after complaint, but before answer. Federal Rules of Civil Procedure 12(b) (1) lack of jurisdiction over the subject matter (2) lack of jurisdiction over the person (3) improper venue (4) insufficiency of process (5) insufficiency of service of process (6) failure to state a claim upon which relief can be granted Known as demurrer in some state courts Assuming the facts in the complaint are true, plaintiff cannot win as a matter of law. e.g., Suing Graceland because Elvis is haunting you. (7) failure to join a party If successful, case dismissed, but Plaintiff may re-file in most cases. Unless dismissed with prejudice by judge Motion for Judgment on the Pleadings Federal Rules of Civil Procedure 12(c) After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. A judgment on the pleadings is based exclusively on the pleadings in a case (complaint, answer, reply to the answer, if any), i.e. without consideration of any discovery or exhibits. If a moving party wins motion, he wins case (as opposed to motion to dismiss/demurrer) Discovery Discovery is the process for both parties to discover relevant facts of a case before trial. Allows parties to narrow and clarify issues for trial. Limits of discovery are set by the judge. Many jurisdictions have liberal discovery rules to give parties freer access to all relevant facts. Much wider standards for discovery than for admissibility in court. i.e., Just because something is discoverable doesn t mean it will later be admitted as evidence. 4

5 Discovery Depositions Verbal examinations of a party or a party s witness by the other party s attorney, under oath Interrogatories Written questions directed to a party, answered in writing, signed under oath. Requests for admissions One party s written demand that the other party agree to certain statements of fact or law. Requests for documents and other evidence Physical and mental examinations Requires court order Discovery process can take months or even years Summary Judgment Typically made by either party during or after discovery, but before trial. Usually includes exhibits from discovery or other outside matters Note: Exhibits not called evidence since evidence only applies to trial If moving party successful, wins case; partial summary judgment also possible. e.g., in complaints with multiple causes of action Granted when there is no genuine issue of material fact so that the moving party is entitled to judgment as a matter of law. material fact : a fact that affects decision making; : a fact upon which the outcome of all or part of a lawsuit depends Summary Judgment Compare/Contrast Motion to Dismiss for Failure to State a Claim Upon Which Relief Can be Granted vs. MSJ Timing Effect Law vs. Fact Which party uses 5

6 Pretrial Conferences Either statutory or at discretion of trial judge. Usually several pretrial conferences in most civil cases Parties are encouraged (read: pressured) to avoid trial by settling. Attorneys may stipulate to issues to simplify the trial. The Trial If the case is not settled, is through discovery, and has survived pretrial motions, it is set for trial. May be tried to a jury or by judge if jury trial is waived Voir dire is the pretrial jury screening process. Jurors interviewed about general and case-specific questions Biased jurors may be removed through peremptory challenges by lawyers, or for cause by judge Trial: The Basic Scenario Opening statements by the attorneys. Plaintiff presents her case. Direct examination of her witnesses Defense may cross examine Redirect, recross allowed Presentation of exhibits Defendant presents her case. Direct examination of her witnesses Plaintiff may cross examine Redirect, recross allowed Presentation of exhibits Attorneys make closing arguments. 6

7 Jury Trials In jury trials, the judge issues a charge or instructions to the jury at the end of trial. Defines the law to be used Very common basis of appeal Jury finds the facts of case and then applies them to the law (as defined by the judge) The jury renders a verdict upon which the court s judgment is based. Judge renders verdict and judgment in nonjury trials. Directed Verdict Motions Motion brought by either party after other party has presented evidence at trial. Motion made prior to jury verdict Takes decision out of jury s hands and asks judge to decide case. Same standard as summary judgment If successful, the moving party wins case. Judgment Notwithstanding the Verdict Motion brought by losing party after adverse jury verdict. Asks judge to overrule jury s verdict. Uses same test the jurisdiction uses for directed verdict. Most jurisdictions require directed verdict motion to have been filed first. If successful, the moving party wins case. Motion for New Trial Brought by losing party after adverse judgment or jury verdict. Wide range of possible grounds. If successful, a new trial ordered. In many jurisdictions, required to preserve right to appeal. Enforcing a Judgment Plaintiff may have to enforce judgment after winning a case. Court orders that require the judgment debtor to appear in court to answer detailed questions about his or her income, bank accounts and property (Orders to Appear for Examination); Court orders requiring the judgment debtor to provide specific documents, such as bank account records or other financial statements (Subpoenas Duces Tecum); Court orders requiring the judgment debtor to surrender cash to the judgment creditor or valuables and other personal property in his or her possession to a levying officer (turnover orders); and Court orders (Writs of Execution) authorizing a sheriff or marshal to obtain money directly from a judgment debtor's bank or other financial account (bank levies), from regular salary or wages (wage garnishments) or from a business's cash register or safe (keeper levies). 7

8 Alternative Dispute Resolution Quicker resolution of disputes. Lower costs in time, money, and aggravation of the parties. Reduced strain on the judicial system. Often use decision-makers with specialized expertise. Promote compromise decisions reflecting the consensus of the parties. ADR: Settlement An important means of avoiding protracted litigation. Often a sensible compromise for the parties. Plaintiff is at least guaranteed something, as opposed to possible zero at trial. Defendant can control payout, versus uncertainty of a jury award. Strongly encouraged by all judges. The basis of a settlement is a contract Often with confidentiality clause, aka, non-disclosure agreement (NDA). May occur before, during, or even after trial ADR: Arbitration Submission of a dispute to a neutral, nonjudicial third party. Parties may agree to arbitration or it may be compulsory (court-annexed). May be binding or non-binding Binding: Parties set minimum and maximum award (e.g., between $15K and $45K) Binding arbitration is rarely if ever compulsory must be consented to by all parties Non-binding merely gives the parties and the trial judge an idea what case is worth Can be arbitration clause in contract/license. e.g., Unless otherwise agreed in writing, all disputes relating to this Agreement shall be subject to final and binding arbitration in Santa Clara County, California, under the auspices of JAMS/EndDispute, with the losing party paying all costs of arbitration. Or parties may agree to arbitration after claim arises or during a lawsuit Usually less formal than regular court proceedings. 8