1. 4-1 Chapter 4— Litigation REED SHEDD PAGNATTARO MOREHEAD F I F T E E N T H E D I T I O N McGraw-Hill/Irwin Copyright © 2010 by The McGraw-Hill Companies, Inc. All rights reserved.

2. 4-2 An impartial enforcement and dispute resolution process is essential to any system An impartial enforcement and dispute resolution process is essential to any system that preserves private that preserves private property interests. To property interests. To conduct business and enforce rights, we need a process to resolve disputes. conduct business and enforce rights, we need a process to resolve disputes. Introduction

3. 4-3  To understand the litigation process and the parties to a case.  To learn how issues can impact litigation;  To understand the steps and costs associated with discovery.  To learn about the pretrial and trial procedures in litigation.  To appreciate how cases are decided and the process for appeal and enforcement of judgments. Learning Objectives

4. 4-4 Parties  Plaintiff v. Defendant  Counterclaim- Counterplaintiff v. Counterdefendant  Appellant v. Appellee  Petitioner v. Respondent  Third-Party Defendant

5. 4-5 Getting Into Court Standing to Sue Subject Matter Jurisdiction Personal Jurisdiction Need all three to get into court

6. 4-6 Getting Into Court Must involve actual case or controversy Plaintiff must have personal stake in resolution Standing

7. 4-7 Getting Into Court Subject Matter Jurisdiction Power to hear type of case General or limited jurisdiction E.g. probate court, traffic court, federal courts.

8. 4-8 Getting Into Court Personal Jurisdiction Court’s authority over parties to case Summons/service of process Long arm statutes – minimum contacts Extradition

9. 4-9 Class-Action Suits  Filed On Behalf Of All With Similar Claim  Notice Given To All Members Of Class  Plaintiffs Pay Court Costs  Settlement Benefits Class Release All Claims

10. 4-10 Procedural Rules Pleadings Discovery Pretrial Conference Trial Post trial Motions Appeal PretrialMotions

11. 4-11 Pre-Trial Procedures  Pleadings Complaint Answer- Counterclaims  Default Order – court may order if no answer filed.

12. 4-12 pop QUIZ pop QUIZ pop QUIZ For any court to exercise authority in any given case, which of the following must happen: a. Court has jurisdiction of subject matter b. Court can exercise personal jurisdiction of the defendant the defendant c. Plaintiff has standing to bring the case before the court the court d. All the above

13. 4-13  Purpose Lawsuit Based On Merits Of Case Lawsuit Based On Merits Of Case Assist In Trial Preparation Assist In Trial Preparation Narrow Issues Narrow Issues Interrogatories Request for Production of Documents Deposition Request for Admissions Discovery Types:

14. 4-14 Scope of Discovery Evidence Admissible At Trial Discoverable Information Allowable if it will lead to evidence admissible during trial High Cost of Discovery caused by time searching for information preparing depositions copying and shipping costs attorneys fees interpreting requests

15. 4-15 Discovery Abuse  Parties become aggressive  Damage to litigation process  Key is to act reasonably and prudently  Avoid extreme positions

16. 4-16 Motions Pretrial Determination of  Question of Law  Statute of Limitations  Judgment on Pleadings or Summary Judgment (concludes litigation prior to trial)  Frivolous Cases (Fed. Rule 11)

17. 4-17 Trial – Jury Selection  Voire Dire – to speak the truth  Challenges For cause Peremptory  Constitutional violations  Elimination of peremptory challenges?

18. 4-18 Opening Statement – Overview of Essential Facts Trial Jury Selection – Voir Dire Presentation of Evidence Directed Verdict Closing Arguments Instruction to Jury Instruction to Jury Jury Verdict

19. 4-19 Burden of Proof  Burden/responsibility of evidence  Criminal cases- beyond a reasonable doubt  Civil cases Preponderance of evidence Clear & convincing proof

20. 4-20 Civil Case Decision  Judgment- in favor of party that won jury’s verdict  Judgment notwithstanding the verdict- post trial motion. Judge may enter judgment counter to jury’s verdict

21. 4-21 Post-Trial  Appeals procedure Brief Oral argument Judge/Justice’s opinion  Deference to trial courts  Enforcement Execution Garnishment  Doctrine of Res Judicata

22. 4-22 pop QUIZ pop QUIZ pop QUIZ “Directed verdict” refers to the a. Power of court over parties involved. b. Power granted to litigant to reject jurors. c. Power of court to order sworn questioning of witnesses outside of court. of witnesses outside of court. d. Power of court to grant a decision in favor of defendant when insufficient evidence is presented at trial.