Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Legal Terminology Fifth Edition by Gordon W. Brown PowerPoints prepared by Kimberly Lundy

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Chapter 3 Civil Trial Procedure

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Civil Action  Civil action – non-criminal lawsuit (litigation) to settle a dispute between two or more people.  Parties to lawsuit are called litigants: Plaintiff – person who brings the suit. Defendant – person being sued.

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Class Action  Class action – a civil action brought, with court’s permission, by one or more persons on behalf of a large group.

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Civil Action (Cont’d.) Ripeness doctrine – court will only hear an actual, present controversy. Justiciable – case must be appropriate for court resolution. Rules of civil procedure – rules of the presiding court (federal or state) govern civil cases.

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Beginning a Civil Action  Plaintiff’s attorney determines legal issues (questions of law) involved in case and whether plaintiff has standing to sue (tangible, legally protected interest at stake in lawsuit).

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Selecting the Court  If case cannot be settled, plaintiff’s attorney selects court in which to file suit. Court must have jurisdiction (power or authority of court to hear a case) over both the person being sued and the subject matter of the case.

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Pleadings  Pleadings – written statements of claims and defenses used to begin and defend a civil suit. Lawsuit begins when complaint (plaintiff’s first pleading) is filed with clerk of courts. In some states, plaintiff files petition (written application for court order).

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Pleadings – Complaint  Complaint (declaration at common law). Sets forth plaintiff’s cause of action (grounds for lawsuit) – contains allegations (claims plaintiff expects to prove) and ad damnum (clause stating plaintiff’s damages).  Gist of complaint known as gravamen of lawsuit.  Some states require signed verification (plaintiff statement confirming truth of pleading).

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Pleadings (Cont’d.) Clerk keeps docket (record of cases filed) and assigns a docket number to each case. When case is ready for trial, it is placed on trial docket, or trial list.

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Process  Process – method by which defendant is notified of suit and compelled to appear in court.

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Process  Summons – formal notice to defendant of lawsuit and time limit to answer or lose by default judgment (court decision against party who fails to plead or defend lawsuit). Unknown defendants are referred to as doe defendants in summons and complaints.

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Service of Process  Summons and complaint are delivered to defendant by service of process. Person carrying out process is a process server. Personal service – delivery of summons and complaint to defendant personally. Constructive service – documents left at defendant’s last and usual place of abode. Substituted service – delivered to defendant’s agent, mailed, or published in a newspaper.

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Attachment  Attachment – act of taking a person’s property and bringing it into custody of the law so it can be applied to defendant’s debt if plaintiff wins suit.

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Attachment (Cont’d.) Plaintiff files affidavit (written statement under oath) stating facts that would warrant a judgment.  Person signing affidavit is affiant (or deponent). Ex parte hearing (attended by one party only) – when plaintiff does not want defendant to have advance notice of attachment.

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Attachment (Cont’d.)  Attachment is ordered if: Defendant is outside jurisdiction but property is within jurisdiction; Danger exists that defendant will conceal, sell or remove property from state; or Danger exists that defendant will damage or destroy property.

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Writ of Attachment  Writ of attachment – written order of court commanding sheriff to attach defendant’s real or personal property. Real property: attachment filed with register of deeds becomes a lien, or encumbrance (a claim against the property). Personal property: sheriff takes possession, places a keeper over it, or sells it.

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Attachment (Cont’d.)  Trust process (or garnishment) – procedure for attachment if property of defendant is being held by another. Writ of garnishment is served on trustee or garnishee (one holding defendant’s property).

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Burden of Proof  Plaintiff must prove civil case by a preponderance of evidence (degree of proof that is more probable than not).  Writ of execution – process used to enforce a money judgment. Orders sheriff to enforce the judgment.

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Summary Proceedings  Summary proceeding – short and simple trial, such as those of small- claims court.

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Differences Between Civil and Criminal Actions Criminal ActionCivil Action Action Brought byGovernmentInjured party Plaintiff’s Burden of Proof Guilt beyond reasonable doubt Preponderance of evidence Result of Losing for Defendant Prison, fine, or both; restitution Pay money to winning party; do or refrain from doing particular act.