The Process of Litigation

What is the first stage in a civil lawsuit ?  Service of Process (the summons)

What is the purpose of serving a summons?  The summons performs the dual functions of :  (1) notifying the defendant that a lawsuit has been started against her and,  (2) bringing the defendant under the power of the court in which the case is to be tried. The power of a court to adjudicate is called its jurisdiction.

Pleadings  The lawsuit continues in the form of pleadings, which are documents submitted by the parties to outline the most critical facts that they intend to prove at trial F.R.C.P. 7(a)  The first pleading is the...  Complaint- The plaintiff must allege facts that, taken together, constitute a cause of action. The complaint is usually served at the same time as the summons.

Assuming the complaint was served with the summons, what is the next stage in a civil lawsuit ?  The Pleadings  The Complaint  Motion to Dismiss/Answer

Pleadings  The defendant can respond to the summons and complaint with either or both of two steps. The defendant may file a motion to dismiss or an answer or both.  Motions made in the pleading stages are governed by F.R.C.P. Rule  12(b)  The defendant may also include a motion to dismiss in the answer in the form of an affirmative defense. Such motions made in the pleading stages are governed by F.R.C.P. Rule  8(c)

Pleadings  The most frequent is the defendant's assertion that the plaintiff’s complaint should be dismissed because it does not allege facts that constitute a cause of action. This is called a  Motion to dismiss for failure to state a claim upon which relief can be granted. (12b6)  If the defendant does not file a motion to dismiss or if that motion is denied, the defendant must file an answer to the complaint.

What stage is next? Discovery (Discovery motions)

Discovery  If the action has not been dismissed in the pleading phase, the attorneys will conduct Discovery.  What are five basic types of discovery?

5 Types of Discovery  1) Depositions  2) Interrogatories  3) Production of documents  4) Physical and mental examination of persons and  5) Requests for admissions.

Discovery  After some discovery has been done, the attorneys might also negotiate or make what kind of discovery motion?  Summary Judgment.  What are the standards for proving summary judgment?

Summary Judgment  When one of the parties believes that the case lacks issues of fact or, in other words, believes that the evidence is not in conflict about what happened before the suit began  (No genuine issue of material fact)  -- that party can move for summary judgment, asking a court to decide the case without a trial by resolving the issues of law alone.  (Entitled to judgment as a matter of law).

The next stage is Pretrial  The Complaint Discovery  Answer  Pretrial (Jury Selection)

Pretrial  The jury is selected from a random pool of jurors (the venire) by a process known as  voir dire.  In order to insure impartiality, each party may excuse or challenge some jurors.  Most trial courts also now hold a pretrial conference to deal with pre-trial motions.

The Trial  In a trial with a jury, the jury's role is to decide, in the form of a verdict, issues of...  fact, while the role of the judge is to decide issues of...  law.  The first event in a trial is an opening statement, in which the attorneys outline the case they hope to prove.

Trial  Then, during the evidence-taking phase of the trial, the attorneys present their case in the form of witnesses and exhibits.  One of the motions attorneys make at trial is one that tests the sufficiency of an opponent's evidence and that, if granted, results directly in judgment for the party making the motion. This is called a motion for a directed verdict.

The Trial  The Complaint Discovery Trial (Motions for Directed Verdict) Answer  Pretrial (Jury Selection/Charge)

Trial  Next attorneys make closing arguments.  Then, in the charge or jury instructions the judge instructs the jury on how to apply the law to whatever facts the jury might find.  Finally, the judge signs the jury’s verdict into a judgment which provides or denies the remedy asked for by the plaintiff.

Post Trial Motions AAttorneys may make post trial motions such as a mmotion to set aside the verdict and grant a new trial or a mmotion for judgment notwithstanding the verdict. TThey are made to the trial court, and both challenge the sufficiency of the evidence on which the verdict is based.

Trial  The Complaint Discovery Trial-Directed Verdict Verdict (Motions-  Answer J.N.O.V./New trial)  Pretrial (Jury Selection/Charge)

The Appellate Process

Appeal  The Complaint Discovery Trial-Directed Verdict Appeal Verdict(motions)  Answer (J.N.O.V./New trial)  Pretrial (Jury Selection/Charge)

Appeal  An appeal is a request by the losing party for a higher court to reverse or alter one or more rulings by the trial court. The party making the appeal becomes  The Appellant  while the other party becomes  The Appellee

Developing a Theory of the Case  What was the last major decision you made? The “selling point”  Judges have selling points Persuasive theory

Appeal  Appellate courts do not retry cases.  They accept the factual record from the trial court and deal with legal issues.  Arguments are made by means of written documents called appellate briefs that the attorneys submit to the court. The attorneys may also argue orally before the judges.

The Record on Appeal  Since the appellate court does not “try” the case, its only source of information about what has gone on in the lower courts is the “record.”  The record contains various documents filed with the court during the litigation such as the pleadings, the motions, the trial transcript, the verdict, the judgment, and so forth.

Preserving the Record  The appellate court does not review the entire record in search of mistakes. The court will look only to the issues raised on appeal in the “Notice of Appeal” and the Briefs.  Thus, the party appealing should preserve error at trial by raising objections and making motions at trial to contest the error.

Appeal  Review at the appellate level is also limited to issues of law that have been decided in a final order. (e.g. Granting Summary Judgment)  The idea is that an appellate level court should not step in to correct a lower level court while the issue is still pending before that court.

Standard of Review  Finally review at the appellate level is limited by the “ standard of review ”.  The standard of review differs depending on what type of issue is being raised before the court.Some example standards of review are:  De Novo Clearly Erroneous Abuse of Discretion Substantial Evidence

Standard of Review  Case law, state rules and statutes address appropriate standards for various issues.  Do standards of review (except de novo) gives deference to the winner or loser at the trial level?  The winner-which is why so few appeals are successful.

The Decision to Appeal Factors to Consider:  Jurisdiction  Grounds for Appeal  Probability of Success  Economic and other costs