Civil Litigation Process

Civil Litigation Process
Civil Litigation Process A presentation by: Kenneth Joe Galloway CEO - Knowledge, Growth & Support, Ltd. Civil Litigation Process

Civil Litigation Process Civil Litigation Process
Lawsuits Simplified: The Four-Step Civil Litigation Process A civil lawsuit is a result of a conflict between individuals, businesses, legal entities (including private and government offices), and so on. This option is taken when two parties cannot find a mutually beneficial resolution to a problem. Litigation may sound like a technical term, but actually, it is a simple process involving four steps: pleadings, discovery, trial, and appeal. legal entities: Where the law allows a group of people to act as if they were a single person. mutually beneficial resolution : It benefits both parties or everyone profits. Civil Litigation Process

Step 1. Pleadings Litigation begins when the complainant (plaintiff) files a complaint with the court and officially delivers a copy to the one being sued (the defendant). Once the complaint is filed, the defendant is given time to answer. This document contains point-by-point answers explaining the defendant's side. In this document, the defendant may also file counter-claims against the plaintiff. counter-claim: a claim (complaint) filed against the plaintiff) who had already filed a complaint against you. Civil Litigation Process

Step 1. Pleadings The plaintiff can respond in three ways: (1) file a reply, (2) request for a clarification to correct errors in the allegations, or (3) ask the court to dismiss part of or all of the lawsuit. Whatever option is taken, this can lead to amended complaints or answers. This entire process—complaint, answer, reply, amendments—results in the clear definition of the issues that the court must resolve. Civil Litigation Process

Step 2. Discovery A successful outcome can only be achieved with proper preparation. Lawyers handling the case conduct research of the law and document review and organization. They can also hold interviews with witnesses who can help lawyers assess the merits of the case. Discovery may be the longest part of the case—it begins when a lawsuit is filed and may continue until shortly before trial. During this step, both parties ask each other (and third parties) for information related to the case. Civil Litigation Process

Step 2. Discovery One key method in obtaining information during discovery is through a deposition. Here, witnesses are placed under oath and then questioned by the lawyers, with the process being documented by a court-appointed reporter. Deposition: The testimony of a party or witness in a civil or criminal proceeding taken before trial, usually in an attorney's office. Depositions are used to gain more details about the case and may be included in the trial to either show inconsistencies or to question the credibility of a witness. The recorded testimony can also be used if a witness is physically unable to attend trial. Civil Litigation Process

Step 3. The Trial Each party presents an opening statement that presents the outline of their case The parties present evidence. Each party can call witnesses, introduce supporting documents and exhibits. Once each witness is called and questioned, the other party can cross-examine the witness. The plaintiff presents evidence first, followed by the defendant. The plaintiff may present additional evidence (rebuttal evidence) after the defendant has finished presenting its case. Once all evidence has been presented, the parties give their closing arguments. Finally, the court instructs the jury on the law to be applied to the evidence. The jury then deliberates and reaches a verdict. Civil Litigation Process

Step 4. Appeal Apart from filing motions, the losing party still has the option to reverse a judgment with an appeal, which lasts for a year or longer. During an appeal, the petitioner asks the appellate court to review the court proceedings in the lower court. The parties present arguments to the court along with the record of evidence. The former then reviews the case, but only for legal errors. The appellate court presents its decision through a document called an “opinion.” In this document, the court will either affirm the verdict (if it found no legal errors) or reverse the verdict or order a retrial (if it found errors). Civil Litigation Process

Alternatives to Litigation Lawsuits are known to be costly and time consuming for both parties so, at any point during this process, either party may decide to voluntarily settle, and in fact, most cases are settled before reaching trial. Prior to or during litigation, two parties have other options available to help them resolve their issues. The three options discussed here can save time and money for both parties, and may lead to a desirable solution for both. A settlement can be discussed before or during a trial. Although the courts do not require parties to settle, many courts have procedures through which either party can seek its assistance during the settlement. Civil Litigation Process

Alternatives to Litigation Mediation is actually a type of settlement that involves a third party or mediator. The mediator, who is chosen by each party, facilitates the procedure by meeting with them privately and discussing the strengths and weaknesses of each side's case. Depending on the mediator’s skills, they can help the parties identify risks that may affect the outcome. The mediator, however, cannot force the parties to agree on a settlement. Civil Litigation Process

Alternatives to Litigation Arbitration, similar to mediation, involves a third party to help both parties settle. It is different from mediation in that, once the parties argue their respective cases, the arbitrator has the final power to decide which one wins. Its advantages are its cost-effectiveness and less formal procedures; however, its disadvantage is that the final ruling cannot be appealed. Civil Litigation Process

How does teamwork figure in all of these? A successful outcome is the product of teamwork. Through a team approach, the client and the legal counsel work together by adopting a unified strategy that suits the clients. Within this “team,” clients contribute by providing business expertise and knowledge of the facts, while the legal counsel can provide expertise on legal issues, the trial process, options for resolution, and potential risks and rewards of each. Civil Litigation Process

affidavit A written statement of facts sworn to or made under oath before someone authorized to administer an oath. I need to prepare an affidavit which includes a number of attachments. A copy of the sworn affidavit was obtained at the federal high court. Civil Litigation Process

beyond a reasonable doubt The level of proof required to convict a person of a crime. It does not mean “convinced 100%,” but does mean there are no reasonable doubts as to guilt. The requirement of proof beyond a reasonable doubt is not so stringent as to preclude the possibility of error, as is, “beyond the shadow of a doubt. Proof beyond a reasonable doubt is a heavy burden that the prosecution has to bear throughout the entire case. Civil Litigation Process

breach The violation of a law, duty, or other form of obligation, including obligations formed through contracts or warranties, either by engaging in an action or failing to act. This amount is awarded for damages due to breach of contract. There had clearly been a serious breach in their security. Civil Litigation Process

causation That which produces the harm to someone or something. He is investigating the role of bad habits in the causation of cancer Civil Litigation Process

causation That which produces the harm to someone or something. A cause without which the events or results that follow could not occur. The basic test for establishing causation is the "but-for" test in which the defendant will be liable only if the claimant’s damage would not have occurred "but for" his negligence. Civil Litigation Process

charge The formal accusation of a crime. 1) in a criminal case, the specific statement of what crime the party is accused (charged with) contained in the indictment or criminal complaint. 2) in jury trials, the oral instructions by the judge to the jurors just before the jury begins deliberations. This charge is based on jury instructions submitted by attorneys on both sides and agreed upon by the trial judge. 3) a fee for services. Civil Litigation Process

civil case A non-criminal lawsuit, brought to enforce a right or redress a wrong. In civil trials, the burden of proof is usually the much weaker preponderance of the evidence, meaning that a normal person weighing all of the relevant evidence would consider the charges more likely true than not. Civil Litigation Process

comparative negligence In a civil suit, a finding that the plaintiff was partly at fault and, therefore, does not deserve full compensation for his or her injuries. For example, if an accident was 40 percent the plaintiff’s fault, the plaintiff’s damages are reduced by 40 percent. Civil Litigation Process

comparative negligence The comparative negligence system allocates fault between the parties. Under the comparative negligence system, adopted by most states, a defendant can raise a partial defense, saying that the plaintiff was partially at fault for the accident too. Here's an example of how this works. Say that Dan is making a left turn and hits Ann who is driving over the speed limit through the intersection. Ann sustains injuries and sues Dan for negligence. Under a comparative negligence system, Dan may be found to be 80% at fault for hitting someone while making a left turn and Ann may be found to be 20% at fault because she was speeding. If the total available compensation is $100,000, Ann will receive $80,000 instead of the total amount -- her amount is reduced according to her degree of fault (20%). Civil Litigation Process

complaint The first legal document filed in a civil lawsuit. It includes a statement of the wrong or harm done to the plaintiff by the defendant and a request for a specific remedy from the court. (2) A complaint in a criminal case is a sworn statement regarding the defendant’s actions that constitute the crime charged. A complaint is the first pleading filed by a plaintiff which initiates a lawsuit. A complaint sets forth the relevant allegations of fact that give rise to one or more legal causes of action along with a prayer for relief and sometimes a statement of damages claimed Civil Litigation Process

complaint The party filing the complaint is called the plaintiff and the party against whom the complaint is filed is called the defendant or defendants. When the complaint is filed, the court clerk will issue a summons. Civil Litigation Process

contributory negligence A legal defense in which it is determined that the plaintiff and defendant share the fault for a negligence civil case. If proven, the plaintiff cannot recover damages. A good example to start with is a car driver or passenger who does not wear a seat belt. Not wearing the seat belt does not cause the accident, but it contributes to the damage (the injury in this example). Another example is where an employee has failed to wear safety equipment. An accident occurs for other reasons, but the failure to wear safety equipment contributes to the injury, not the accident.

criminal case A lawsuit brought by a prosecutor employed by the federal, state or local government that charges a person with the commission of a crime. Criminal cases will have jail time as a potential punishment, whereas civil cases generally only result in monetary damages or orders to do or not do something. Civil Litigation Process

damages The injuries or losses suffered by one person due to the fault of another. (2) Money asked for or paid by court order to a plaintiff for injuries or losses suffered. Special damages are those which actually were caused by the injury and include medical and hospital bills, among others. Damages attempt to measure in financial terms the extent of harm a plaintiff has suffered because of a defendant's actions. Civil Litigation Process

due process The idea that every person involved in a legal dispute is entitled to a fair hearing or trial. The requirements of due process vary with the situation, but they basically require notice of the charges and an opportunity to be heard. A fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's life, liberty, or property. Civil Litigation Process

duty A legal obligation. He has duties to perform towards others. He is bound to do to others the same justice which he would have a right to expect them to do to him. 1) a legal obligation, the breach of which can result in liability. In a lawsuit a plaintiff must claim and prove that there was a duty by defendant to plaintiff. This can be a duty of care in a negligence case or a duty to perform in a contract case. 2) a tax on imports. A duty is something that one is expected or required to do by moral or legal obligation. Civil Litigation Process

evidence Proof; Witnesses’ statements or physical objects presented at a trial to prove something is true or happened. “There is no making brick without straw. There is no calling witnesses without facts. There is no making a defense without innocence. There is no answering evidence which is true. “ Lord Mansfield (1746). Evidence is the ways and means used to persuade the judge or jury of your. Civil Litigation Process

examination The questioning of a witness by a lawyer at a trial or deposition. When the lawyer who called the witness to the stand questions the witness, the examination is direct. When the opposing lawyer is questioning, it is cross examination. an examining or being examined; investigation; inspection; checkup; scrutiny; inquiry; testing means or method of examining a set of questions asked in testing or interrogating; test

fact Something that really exists, a known event or thing. The definition of a fact is something that is true or something that has occurred or has been proven correct. He had become an accessory after the fact. Something actual as opposed to invented. In this story, the Gettysburg Address is a fact, but the rest is fiction. The promise of television became a fact in the 1920s. Civil Litigation Process

hearsay Evidence that a witness has heard from someone else. Hearsay evidence is "an out-of-court statement introduced to prove the truth of the matter asserted therein." In court hearsay evidence is unless an exception to the Hearsay Rule applies. Sweden allows hearsay evidence. This has to be trustworthy. For example a police officer can testify what another person said. Civil Litigation Process

jury In a legal proceeding, a body of men and women selected to hear and examine certain facts and determine the truth. A group of persons sworn to render a verdict or true answer on a question or questions officially submitted to them. Idiom The jury is (still) out, a decision, determination, or opinion has yet to be rendered. The jury is still out on the president's performance. Civil Litigation Process

liability Legal responsibility; The obligation to do or not do something. The defendant in a tort case incurs liability for failing to use reasonable care, resulting in harm to the plaintiff. the state of being legally responsible for something : the state of being liable for something The company is trying to limit its liability in this case. Civil Litigation Process

negligence The failure to exercise a reasonable amount of care in either doing or not doing something, resulting in harm or injury to another person. Conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances. A person has acted negligently if he has departed from the conduct expected of a reasonably prudent person acting under similar circumstances. Civil Litigation Process

negligence There are lots of examples of negligence that can lead to a civil lawsuit. For example: A restaurant owner who mops the slippery floor and doesn't put up a "Wet Floor" sign could be considered negligent. A doctor who operates on the wrong patient or on the wrong body part because he misreads the chart could be considered negligent. A company that releases a dangerous drug without fully testing the medication and identifying all of the side effects can be considered negligent. A driver who runs a stop sign and who drives well over the legal speed limit can be considered negligent. A person who owns a dog that he knows is dangerous and who takes the dog to the park where the dog bites a small child could be considered negligent. A lawyer who doesn't really know how to defend a defendant in court, but who takes the case anyway and doesn't adequately represent the client, can be considered to be liable for professional negligence.

not guilty The decision in a criminal case that the prosecution has not been able to prove the defendant is guilty. 1) plea of a person who claims not to have committed the crime of which they are accused. The choices of what one can plea are: guilty, not guilty, no contest, not guilty by reason of insanity, or incompetent to stand trial. 2) verdict after trial by a judge sitting without a jury, or by a jury, stating that the prosecution has not proved the defendant guilty of crime, or that it believes the accused person was insane at the time the crime was committed. The accused cannot be tried for again for the crime charged. Civil Litigation Process

plaintiff In a civil case, the injured party who brings legal action against the alleged wrongdoer. The party who sues in a civil action; a complainant; the prosecution—that is, a state or the United States representing the people—in a criminal case. The judge ruled that the plaintiff's lawsuit was groundless, and he dismissed it. Civil Litigation Process

prosecution The attorney who files a lawsuit on behalf of the state against a defendant in a criminal trial. 1)in criminal law, the government attorney charging and trying the case against a person accused of a crime. 2) a common term for the government's side in a criminal case, as in "the prosecution will present five witnesses" or "the prosecution rests" Civil Litigation Process

testimony Evidence given by a witness under oath. Jurors look at testimony and judge whether a defendant is guilty or not guilty. His parade of witnesses has failed to develop any testimony. The jury heard 10 days of testimony. There were contradictions in her testimony. Civil Litigation Process

Civil Litigation Process

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