Civil Litigation And Procedure

It is an adversarial proceeding in which a party, the plaintiff, may sue another party, the defendant, to obtain redress for a wrong committed by the defendant.

Civil litigation is primarily compensatory and awards monetary judgments for losses caused by injury to legally recognized interests. A criminal proceeding is undertaken mainly for punishment or deterrence.

Contract and tort.

Either to act or refrain from acting in a specific manner or to pay monetary damages as a result of a prior act or omission.

A party alleges that another party breached an enforceable agreement.

A party alleges that another party breaches a legal duty arising from society’s expectations of acceptable conduct and the breach caused injury to the person or property of the complaining party.

Civil litigation.

It is a claim sufficient in law and fact to require judicial attention.

The right belongs to a particular person or class of persons and is said to accrue or to exist at the moment when the injury occurs.

The plaintiff.

A complaint.

The complaint will be dismissed.

It must contain sufficient facts to inform the court and the defendant of the nature of the plaintiff’s case.

The plaintiff.

The defendant will prevail.

In civil cases, the burden of proof meets if a preponderance of the evidence supports an assertion. In contrast, in criminal cases, the prosecution’s burden of proof is to establish guilt beyond a reasonable doubt.

Five years to bring an action on a breach of contract.

Jurisdiction is the power of a court to hear a case and render an enforceable decision.

Personal jurisdiction.

In rem jurisdiction.

Quasi in rem jurisdiction.

It is the power of a court to render a binding decision affecting the interest of specific parties in a case.

It is obtained when the plaintiff files the complaint.

It is obtained by service of process, that is, by serving the defendant with a copy of the complaint and summons.

Procedural statutes.

In rem jurisdiction is a state’s jurisdiction over property located in the state.

Note: The legal proceeding is directed against the property itself.

It is based on a defendant’s interest in property located in a state, and the action is directed against a person (defendant) and is unrelated to the property.

Most states have enacted long-arm statutes that local courts apply when the cause of action is generated locally or affects local plaintiffs.

The contacts.

1. The class is so numerous that joinder of all members is impracticable;
2. There are questions of law or fact common to the class;
3. The claims or defenses of the representative parties are typical of the claims or defenses of the class; and
4. The representative parties will fairly and adequately protect the interests of the class.

The filing of a pleading.

In logical and legal form, pleadings are statements of the law and facts that constitute the plaintiff’s causes of action and the defendant’s grounds for defense.

1. Complaint;
2. Answer;
3. Crossclaim; and
4. Reply

The complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief and grounds for the court’s jurisdiction.

Note: It also should contain a demand for relief.

The defendant must file a response with the court to avoid a judgment by default.

In short and plain terms, the responsive pleading must state the party’s defense to claims and admit or deny allegations.

• A general denial or specific denials of the allegations contained in the complaint.
• Counterclaim asserts against the plaintiff.
• A crossclaim may be asserted against a co-party (a fellow defendant or plaintiff).

Note: Under federal rules, the answer must contain one or more affirmative defenses if they apply.

The response ordinarily is an answer or a motion.

A counterclaim asserts an independent cause of the defendant’s action against the plaintiff.

The purpose of a counterclaim is either to oppose or to offset the plaintiff’s claim.

The plaintiff files a reply, a pleading similar to an answer. 

An answer.

Only if ordered by the court.

A motion is an application to the court requesting an order or a ruling in favor of the applicant.

Pretrial motions are used to determine issues in a case and to gain strategic advantages.

• Challenge the existence of subject matter or personal jurisdiction.
• Challenge venue.
• Challenge service of the complaint.
• Seek a more definite statement.
• Move to strike an insufficient defense or inappropriate matter.
• Assert a failure to join a required part.
• Allege failure to state a claim upon which relief may be granted.
• Move for judgment on the pleadings.
• Request additional discovery.
• Request summary judgment.

During the pleadings and at any time before the verdict.

In a motion for summary judgment, a party argues that, based on the pleadings and discovery, the moving party is entitled to a judgment under the law

• Assists the parties in determining the extent and content of evidence, who potential witnesses are, and what specific issues may be relevant.
• Helps preserve relevant evidence that might otherwise be lost and prevent surprise at trial.
• Assists in preparing for trial and encouraging early settlement.
• Narrows the issue to be resolved.

The scope of discovery in civil litigation is broad but less extensive discovery is undertaken in criminal cases.

Statute and overseen by the trial judge.

Lawyers.

• Interrogatories are written answers made under oath to written questions.
• Requests for admissions are used to ascertain the authenticity of a document or the truth of an assertion.
• Requesting for production involves the inspection of documents, electronically stored information, and property.
• Depositions consist of out-of-court testimony made orally under oath by the opposing party or their witnesses.
• Requests for mental and physical examinations.

In the federal system and most states.

It is a meeting of the judge and all attorneys.

1. To shorten the trial by refining or narrowing the issues.
2. To encourage settlement.

The judge will set a date for the trial.

In the absence of a settlement, the judge will enter a pretrial order containing all of the amendments to the pleadings, stipulations regarding the facts, and other matters agreed to in the pretrial conference.

To settle disputes.

They preside over the trial to ensure that only proper legal arguments and evidence are presented.

They maintain order in the adversarial process and provide authoritative decisions on issues of law.

The Seventh Amendment.

The jury is to resolve factual disputes, and when a jury trial is unavailable or has been waived, the judge assumes this function.

A verdict.

The court then pronounces judgment, usually following the verdict.

To select the jury.

A voir dire.

It is allowed each party an opportunity to challenge the selection of any prospective jury if that juror cannot evaluate the evidence impartially.

An unlimited number of challengers for cases and a limited number of peremptory challenges.

A peremptory challenge permits a party to dismiss a prospective juror without cause.

Note: The process in the federal court differs because the judge selects the jury.

Each attorney makes an opening statement.

The purpose of the opening statement is to describe the case and indicate the type of evidence to be offered.

Note: Opening statements are not evidence.

The plaintiff has the initial burden of proof and must introduce evidence to support the allegations outlined in the complaint.

The defendant can move for the judge to dismiss the case even if the defendant has not yet presented evidence at trial.

Testimony of a witness and physical evidence.

The witness offers testimony upon direct examination.

Direct examination is the initial questioning of a witness by the party who called the witness.

Cross-examination is the questioning of a witness by a party other than the one who called the witness.

Note: Cross-examination is limited to the scope of the direct examination.

The judge.

The trial record.

Note: The trial record may refer to evidence not heard by the jury that the judge has ruled inadmissible as a result of an objection and an offer of proof.

It indicates to the court that it may be making a mistake by allowing or disallowing particular activity in the trial.

The client loses the right to raise that issue on appeal.

The plaintiff announces that they have finished presenting evidence.

During the plaintiff rests in a jury trial.

After considering all the evidence with all reasonable inferences drawn most favorably to the plaintiff, the judge must be convinced that the evidence is so clearly in the defendant’s favor that reasonable minds could not differ.

The defendant’s motion is granted.

At any time before submission of the case to the jury and after another party has been fully heard on an issue.

Either party may move for a directed verdict. If the directed verdict is denied, the attorneys make closing arguments.

The attorney will review the evidence produced by their sides and emphasize its adequacy and credibility. They will also point out the weaknesses in the other side’s case.

The judge.

The jury will determine the case’s facts, apply the law as instructed by the judge, and reach a decision or verdict for the plaintiff or the defendant.

A general verdict declares which party prevails and does not include any particular findings of fact.

A special verdict consists of answers to specific factual questions posed by the judge without attempting to reach a decision for either party.

Rendering of the judgment.

1. An award may be made to the prevailing party of cost, damage, or property restoration.
2. The defendant may be ordered to act or refrain from acting.

A motion for a new trial argues that a serious legal error was made by the judge during the first trial.

If the motion for a new trial is granted, the case is again put on the trial calendar. If the motion is dismissed, the moving party may appeal.

The judgment notwithstanding the verdict.

A judge will grant the motion and enter the judgment for the losing party only when no substantial evidence supports the decision by the jury.

Within 10 days after entry of judgment.

Writ of execution.

Appellant.

Appellee.

The appellate process.

• Reviews the trial record to determine whether any errors of law or procedure were made.
• Listens to oral arguments.

• Admitting or excluding the testimony.
• Ruling on motions.
• Misstating the law during jury instructions.
• Interpreting state or federal statutes.

Res judicata.

Note: Res judicata means “The matter is decided.”

Article IV of the U.S. Constitution.

The full faith and credit clause.

Alternative dispute resolution (ADR).

Regular courts are overcrowded, civil litigation is costly, or public and economic concerns favor ADR over litigation.

Arbitration, mediation, minitrials, and conciliation.

Both involve third-party intervention. Arbitrators are empowered to make binding decisions, whereas mediators make suggestions to persuade those interested in settling the dispute themselves but do not make decisions.

Minitrials.

Conciliation.

The conciliation itself or through subsequent formal mediation.

It is used in highly volatile conflicts.

The conciliator does not make suggestions for solving the problems causing the dispute.

Early neutral case evaluation.