INTRODUCTION TO CIVIL LITIGATION Chapter One LEGL 261

Objectives Today we will look at  The differences between civil litigation and other types of litigation  Where civil litigation law comes from  How the California Court system is structured  How a case moves through the process  What the paralegal’s role is in the litigation process.

A lawyer joke… The rich, greedy, old man who wanted to take his money with him when he died… his doctor, priest and lawyer….. My check is good for every penny! Legally Blond?

What we call ourselves tells the story…. Lawyer Counselor Attorney Barrister Solicitor Advocate “liar”?

Attorney Champion “at the tournament” Professional fighters, not with swords anymore…. Now we fight with words.

How are lawyers paid? By the hour… By the case… On contingency…  %33 and 1/3 percent  %40 if trial  %0 if lost

What is “Litigation”? Definition: a legal proceeding in a court; a judicial contest to determine and enforce legal rights. This may include: Interviews of clients and witnesses Gathering of physical or documentary evidence Correspondence with opposing parties Preparation pleadings and court filings Mediation proceedings Trials and hearings Collections or post-trial actions 

Litigation is an Adversarial System Texas style?

EXAMPLES OF CIVIL CASES AUTO ACCIDENT SLIP AND FALL MEDICAL MALPRACTICE BREACH OF CONTRACT FRAUD NON-DISCLOSURE OF DEFECTS IN REAL PROPERY LIBEL OR SLANDER CIVIL RIGHTS VIOLATIONS PRODUCTS LIABILITY EMPLOYMENT DISCRIMINATION SEXUAL HARRASSMENT INVASION OF PRIVACY ASSAULT AND BATTERY

Is the purpose of litigation to get to the “truth”? I wish! The purpose of the law is to settle arguments and disputes peacefully and quickly, if possible. So what is the Law of the United States? Impossible question!!!

The Common Law System Roots in English law custom and precedent cases - decisions by judges A wall of books…. Supplemented by codes, statutes and regulations. Can be “over-ruled”

Sources of American Laws So who writes the law? Lawyers? The Balance of Powers The President (the Executive) The Congress(Senate and House) The Judiciary (Supreme Court)

Jurisdictions From Latin… Juris = law Diction = speak Local, city, county, state, federal…. So, how many jurisdictions are there?

Jurisdictions states… plus the territories, like Puerto Rico, Guam.. plus the military… plus the Indian Reservations plus the Federal! So what is the law of the United States? I am a California Lawyer...

The Legal Team Partners Associates Managing Partner Supervising Attorney Paralegal Legal Secretary Law Clerk Intern Investigator (usually a contractor)

Role Of The Paralegal in Litigation  Client intake and filtering  Pre-litigation investigation  Trial Preparation  Conducting Trial  Post Trial motions or appeals

Ethical Considerations  Paralegal must work under supervision of an attorney. Why?  Paralegals cannot give legal advice or represent a client in court. Why not?  Paralegals must be competent in performing tasks for clients. Duh!... ?  Paralegals have a duty to maintain client information confidential. What does that mean?

Ethical Considerations  Communication between an attorney (or paralegal) and a client is privileged (cannot be revealed to third parties without client’s permission). Rule  Paralegal cannot communicate directly with an adverse party who is represented by counsel. Rule  Must make sure that there are no conflicts of interest between your firm and the client. Rule

Paralegal Representing Parties?? Maybe… Social Security Administration Patent Office Federal Disability Claims “Hearing Representative”…Employee of a Corporation acting in that capacity for employer, and no one else.

Types of Litigation Civil – resolution of disputes between private parties through the court system. Criminal - government prosecutes an action against an individual who has committed a crime against society. Administrative – process by which administrative agencies resolve disputes.

Sources of Law for Civil Litigation  Statutes - legislative law California Code of Civil Procedure  Court Cases - judicial law common law or case law  Constitution U.S. and California

The Federal Court System  Trial Courts – U.S. District Courts or special courts  Intermediate Appeals - U.S. Courts of Appeal – 13 Circuit  Final Appeal - U.S. Supreme Court

The State Court System  Trial Court – Superior Court For the State of California, County of San Diego  Court of Intermediate Appeals – CA Courts of Appeal – 6 Districts  Final Appeals - CA Supreme Court – highest court in the state

From low to high… Small Claims Court Municipal Court Superior Court (may be joined with Muni) State Supreme (highest court) United States Supreme Court

Other “courts” Tax court Military Courts... Administrative courts  worker injury  unemployment  public labor  more…. Specialty courts

Alternatives to court... Negotiation Mediation Arbitration  binding  non-binding

Lawsuit… soot, suite, suut? suit (n.)  c.1300, "attendance at court, the company attending," also their livery or uniform, via Anglo- French siwte, from Old French suitte "attendance, act of following," from Gallo-Romance *sequita, fem. of *sequitus, from Latinsecutus, past participle of sequi "to attend, follow" (see sequel). sequel

Stages of Litigation  Information gathering  Pleading  Discovery and motions  Trial  Post-trial proceedings  Enforcement

Stages of a Lawsuit Injury or disagreement Demand Complaint Answer Motions and Discovery Trial Appeal Enforcement

Parties To A Civil Lawsuit The person or persons who initiate a lawsuit are called the “plaintiffs.” The person or persons being sued are called the “defendants.” Legally the word “person” can mean a corporation, business, governmental entity, or an organization, as well as an individual.

Pleading Is that “begging”?  Well, kind of…  The King and his court Asking the authorities for help  pleading (n.) pleading (n.) late 13c., "the carrying on of a suit at court," verbal noun from plead (v.). Meaning "supplication, intercession" is from early 15c.plead

PLEADINGS The first document filed in a civil lawsuit is called the complaint. The complaint is filed by the plaintiff(s). The court will issue a Summons to be served with the complaint on the defendant(s). The first documents filed by the parties to a lawsuit are called the pleadings.

Burden of Proof Civil Case  Preponderance of evidence Criminal Case  Beyond Reasonable Doubt

Defendant’s Pleadings Answer To Complaint Motion To Strike Demurrer Cross-complaint If the defendant does not respond to the complaint, a default judgment can be entered against the defendant at plaintiff’s request.

LEGAL REMEDIES Remedies are what the plaintiff wants the court to order the defendant to do. Legal remedies are called money damages. Compensatory Damages  General Damages Pain & suffering Can’t put a specific amount to it  Special Damages Reimbursement for medical or other expenses.

LEGAL REMEDIES  Punitive Damages  Sometimes called exemplary damages  purpose is to punish the defendant

EQUITABLE REMEDIES An equitable remedy is a remedy that does not involve money. Examples of equitable remedies:  Injunction  Specific performance  Declaratory relief  Replevin  Rescission of a contract

Lady Justice … why?

While you’re on break… Legally Blond?