Court Procedures Chapter 3

Introduction American and English court systems follow the adversarial system of justice. Each client is represented by an attorney although a client is allowed to represent herself (called “pro-se”).

Pretrial Consulting an Attorney. Generally, the first step. Types of Attorneys’ Fees (hourly vs. contingent fee). Settlement Considerations.

Stages of a Lawsuit: Pleadings Written documents that inform each of the parties of one another’s claims and defenses and specify the issues involved in the lawsuit.

Stages of a Lawsuit: Pleadings Plaintiff’s Complaint or Petition - sets forth the claims asserted by the plaintiff—the party seeking affirmative relief.

Stages of a Lawsuit: Pleadings Service of Process Plaintiff serves Defendant with Complaint and Summons. Default Judgment for Plaintiff, if Defendant does not Answer.

Stages of a Lawsuit: Pleadings Method of Service Usually by Sheriff or private process server. Copy of Complaint and Summons personally delivered. Corporate Defendants served via Registered Agent. If the Defendant is out-of-state, Court can acquire jurisdiction by “long-arm” statutes. Waiver of Service.

Stages of a Lawsuit: Pleadings Defendant’s Answer Responds to the claims set forth in the Complaint or Petition Asserts affirmative defenses Asserts counterclaims

Stages of a Lawsuit: Pleadings Motion to Dismiss: either party (normally defendant) can ask the court to dismiss the case if the pleadings fail to show a legal claim.

Stages of a Lawsuit: Discovery Discovery is the process of obtaining factual information from the opposing party or parties by means of written responses to interrogatories and requests for admission, requests for production of documents, and depositions.

Stages of a Lawsuit: Discovery Requests for Production - written requests for documents relevant to the lawsuit (materials can be both hard copy and electronic compilations)

Stages of a Lawsuit: Discovery Requests for Admissions - questions phrased in an “admit” or “deny” format, giving no opportunity for explanation, and binding the responding party to its admissions.

Stages of a Lawsuit: Discovery Interrogatories - written questions related to the subject matter of the lawsuit which must be answered under oath.

Stages of a Lawsuit: Discovery Depositions - testimony, under oath, recorded by a court reporter and often by videotape taken prior to trial.

Stages of a Lawsuit: Motions Motion for Summary Judgment - a motion requesting the court to enter judgment, based on the pleadings and discovery to date. Granted only if there are no material fact issues in dispute or “questions of fact”.

Stages of a Lawsuit: Trial Trial may be with or without a jury. In a bench trial, the trial judge decides all questions of fact and questions of law. In a jury trial, the trial judge decides all questions of law, but the jury decides all questions of fact.

The Stages of a Lawsuit: Trial Jury Selection - “Voir Dire” the process in which attorneys question prospective jurors to determine whether they are biased or have any connection with a party or the action or with a prospective witness.

The Stages of a Lawsuit: Trial Opening Statements The Plaintiff gets to begin The Defendant may proceed next or wait until prior to the Defendant’s case.

The Stages of a Lawsuit: Trial Plaintiff’s Case Presentation Plaintiff gets to begin its case first Plaintiff conducts direct examination of each witness Defendant may cross examine each witness Plaintiff “rests”

The Stages of a Lawsuit: Trial Defendant’s Case Presentation Defendant calls its first witness after completion of the Plaintiff’s case Defendant conducts direct examination of each witness Plaintiff may cross examine each witness Defense “rests”

The Stages of a Lawsuit: Trial Motion for Directed Verdict - In a jury trial, a motion for the judge to take the decision out of the jury’s hands and directs a verdict for the moving party because the other party has failed to provide sufficient evidence to prevail on its claims.

The Stages of a Lawsuit: Trial Closing Arguments Plaintiff has right to open and close Equal time allotted each party

The Stages of a Lawsuit: Trial Verdict by the Jury (if a jury trial) The verdict specifies the jury’s findings and liability. Jury can award money damages in a civil case, or prison in criminal case. Jury is dismissed after verdict.

The Stages of a Lawsuit: Trial Judgment In a jury trial, the judge will grant judgment based upon the jury’s verdict. In the absence of a jury, the judge simply grants the judgment on its own.

The Stages of a Lawsuit: Post-trial Motions After jury reaches a verdict, either party can make a post-trial motion. Motion for New Trial: after looking at all the evidence, judge will grant the motion IF the jury was in error.

The Stages of a Lawsuit: Post-trial Motions Judgment Notwithstanding the Verdict known as a “(J.N.O.V.” for Judgment non obstante verdicto). a motion for the court to enter judgment contradictory to the jury’s verdict. based on “reasonable minds could not differ” concept

The Stages of a Lawsuit: Appeal An appeal asks an appellate court with jurisdiction over the trial court to review and set-aside the trial court’s judgment.

The Stages of a Lawsuit: Appeal What is filed with the appellate court? A transcript of the pleadings, motions, hearings, and trial before the trial court, and A brief outline of the legal arguments supporting the appellant’s request to set aside the judgment.

The Stages of a Lawsuit: Appeal Possible Appellate Rulings: Affirm the trial court’s judgment Reverse the trial court’s judgment based on “reversible error” and remand the case for further proceedings in the trial court Reverse the trial court’s judgment based on “reversible error” and render a new judgment without any need for further proceedings by the trial court.

Enforcing the Judgment Requesting Court Assistance in Collecting the Judgment. Writ of Execution: directs sheriff to seize defendant’s non-exempt property and sell them to pay for judgment

Enforcing the Judgment Availability of Assets. Usually a plaintiff looks to see if the defendant has sufficient assets before the suit is filed

Court Procedures Chapter 3