1. Q UINCY COLLEGE Paralegal Studies Program Paralegal Studies Program Legal Research & Writing LAW-215 Litigation Roadmaps

2. Civil Litigation Roadmap

3. Civil Litigation

4. Steps in Beginning Litigation Pleadings: Papers that begin a lawsuit Pleadings: Papers that begin a lawsuit 1. Complaint Short, plain statement of the allegations and the legal claims. This is “served” or delivered with a summons. 2. Answer A brief reply to the allegations. 3. Counter Claim Sometimes the accused party will initiate a second suit in response to the first. 4. Reply A brief reply to the counter-claim.

5. Possible Variations on Pleadings Class Actions Class Actions If the plaintiff has evidence that the wrong in question has affected a large number of unrelated persons, the suit may become a class-action suit, with the plaintiff representing an entire class of plaintiffs. If the plaintiff has evidence that the wrong in question has affected a large number of unrelated persons, the suit may become a class-action suit, with the plaintiff representing an entire class of plaintiffs. Default Judgment Default Judgment If the defendant fails to answer in time, the plaintiff will ask for a default judgment, meaning an automatic win without a trial. If the defendant fails to answer in time, the plaintiff will ask for a default judgment, meaning an automatic win without a trial.

6. Discovery -- next step after pleadings Interrogatories -- written questions that the other party must answer, under oath Interrogatories -- written questions that the other party must answer, under oath Depositions -- interview (under oath) of other party or potential witnesses; done by opposing lawyer Depositions -- interview (under oath) of other party or potential witnesses; done by opposing lawyer Production of Evidence -- each side may request to see the other side’s evidence Production of Evidence -- each side may request to see the other side’s evidence Physical or Mental Exams -- one party may request the court to order an examination of the other party if relevant Physical or Mental Exams -- one party may request the court to order an examination of the other party if relevant Allows both sides to uncover evidence, encouraging a settlement or ensuring few surprises during a trial.

7. Discovery (cont’d) Sometimes the results from interrogatories and depositions will cause one side or the other to file a motion in response. Sometimes the results from interrogatories and depositions will cause one side or the other to file a motion in response. Motion to compel answers to interrogatories – may be made if one side thinks the other has not adequately answered interrogatories Motion to compel answers to interrogatories – may be made if one side thinks the other has not adequately answered interrogatories Motion for protective order – is a request to the court that the other side be made to reduce the number of depositions. Motion for protective order – is a request to the court that the other side be made to reduce the number of depositions.

8. Other Steps Before Trial Summary Judgment -- a ruling by the court that no trial is necessary because there are no essential facts in dispute; may be requested by either side. Summary Judgment -- a ruling by the court that no trial is necessary because there are no essential facts in dispute; may be requested by either side. Final Preparation -- if the case is to proceed to trial, both sides make a list of witnesses and rehearse questions with their own witnesses. Preparation is allowed, but telling the witnesses how to answer is not legal or ethical. Final Preparation -- if the case is to proceed to trial, both sides make a list of witnesses and rehearse questions with their own witnesses. Preparation is allowed, but telling the witnesses how to answer is not legal or ethical.

9. The adversary system presumes that the truth will be found if lawyers are allowed to question witnesses for both sides. The adversary system presumes that the truth will be found if lawyers are allowed to question witnesses for both sides. Both the plaintiff and the defendant have the right to request a jury trial, but only in those criminal cases which may result in the death penalty or incarceration for a period of greater than six months is there an absolute right to a jury trial. Both the plaintiff and the defendant have the right to request a jury trial, but only in those criminal cases which may result in the death penalty or incarceration for a period of greater than six months is there an absolute right to a jury trial. Adversary System

10. Procedural Rules for a Trial Burden of Proof Burden of Proof The plaintiff must convince the jury that its version of the case is correct. The plaintiff must convince the jury that its version of the case is correct. In a civil case, the proof needs to be by a preponderance of evidence (meaning at least slightly more likely to be true). In a civil case, the proof needs to be by a preponderance of evidence (meaning at least slightly more likely to be true). In a criminal case, the proof required is higher; it must be beyond a reasonable doubt. In a criminal case, the proof required is higher; it must be beyond a reasonable doubt.

11. The Plaintiff’s Case Opening Arguments Opening Arguments This is a brief summary, given by each side, of the facts they hope to demonstrate. This is a brief summary, given by each side, of the facts they hope to demonstrate. Plaintiff Calls Witnesses Plaintiff Calls Witnesses Questions to own witnesses is direct examination. Questions to own witnesses is direct examination. Lawyer only asks questions with helpful answers. Lawyer only asks questions with helpful answers. Defendant Questions Witnesses Defendant Questions Witnesses Questions to opposing witnesses is cross examination. Questions to opposing witnesses is cross examination. Again, lawyer asks questions with helpful answers. Again, lawyer asks questions with helpful answers. Defendant Moves for Directed Verdict Defendant Moves for Directed Verdict This is asking the judge to decide that the plaintiff has no case worth proceeding with. This is asking the judge to decide that the plaintiff has no case worth proceeding with.

12. The Defendant’s Case Opening Arguments Opening Arguments Defendant’s opening arguments were presented earlier, before the plaintiff presented its case. Defendant’s opening arguments were presented earlier, before the plaintiff presented its case. Defendant Calls Witnesses Defendant Calls Witnesses Questions to own witnesses is direct examination. Questions to own witnesses is direct examination. Lawyer only asks questions with helpful answers. Lawyer only asks questions with helpful answers. Plaintiff Questions Witnesses Plaintiff Questions Witnesses Questions to opposing witnesses is cross examination. Questions to opposing witnesses is cross examination. Again, lawyer asks questions with helpful answers. Again, lawyer asks questions with helpful answers. Closing Arguments Closing Arguments Brief summary, by both sides, urging the jury to believe their side of the case. Brief summary, by both sides, urging the jury to believe their side of the case.

13. Jury Instructions Jury Instructions The judge instructs the jury to evaluate the case solely on the facts of the evidence presented. The judge instructs the jury to evaluate the case solely on the facts of the evidence presented. If the case is influenced by a certain legal presumption, the judge will summarize that for the jury. If the case is influenced by a certain legal presumption, the judge will summarize that for the jury. Deliberation and Verdict Deliberation and Verdict The jury discusses the case for as long as needed (anywhere from less than an hour to several weeks). The jury discusses the case for as long as needed (anywhere from less than an hour to several weeks). Sometimes the jury must be unanimous; other times only a majority (at least 7) or a 10-2 vote is required. Sometimes the jury must be unanimous; other times only a majority (at least 7) or a 10-2 vote is required. After Both Sides Rest (Finish)

14. Motions after the Verdict Motions after the Verdict The loser might request the judge to overturn the verdict on a legal technicality or on a claim that the jury ignored the evidence. The loser might request the judge to overturn the verdict on a legal technicality or on a claim that the jury ignored the evidence. Appeal Appeal The recourse for the loser is to file an appeal, a request for a higher court to examine the facts. The recourse for the loser is to file an appeal, a request for a higher court to examine the facts. The appeals court may affirm the verdict, modify the award, reverse and remand (send it back to trial) or simply reverse (overturn) the lower court’s verdict. The appeals court may affirm the verdict, modify the award, reverse and remand (send it back to trial) or simply reverse (overturn) the lower court’s verdict. Settlement Settlement At any point, either side may offer to settle the case, even between the verdict and the beginning of an appeal. At any point, either side may offer to settle the case, even between the verdict and the beginning of an appeal. The Trial is Over… or is it?

15. Criminal Litigation Roadmap

16. Civil Law vs. Criminal Law Procedure for criminal trial -- government decides whether to prosecute; defendant has the right to a jury trial. Procedure for criminal trial -- government decides whether to prosecute; defendant has the right to a jury trial. In a criminal suit, the court determines guilt, so that a punishment can be given. In a criminal suit, the court determines guilt, so that a punishment can be given. A felony is a serious crime, with a sentence of one year or more in prison. A misdemeanor is less serious, often with a sentence of less than a year. A felony is a serious crime, with a sentence of one year or more in prison. A misdemeanor is less serious, often with a sentence of less than a year. Civil law concerns the rights and liabilities between private parties; criminal law concerns those activities that society has outlawed.

17. The Prosecution’s Case Conduct Outlawed Conduct Outlawed The prosecution must show that the defendant’s alleged activity is indeed illegal. The prosecution must show that the defendant’s alleged activity is indeed illegal. Burden of Proof Burden of Proof The jury must believe beyond a reasonable doubt in order to convict. This is to protect innocent defendants from undeserved punishment. The jury must believe beyond a reasonable doubt in order to convict. This is to protect innocent defendants from undeserved punishment. Actus Reus (means “the guilty act”) Actus Reus (means “the guilty act”) The prosecution must show that the defendant committed the act (not just talked about doing it). The prosecution must show that the defendant committed the act (not just talked about doing it). Mens Rea (means “guilty state of mind”) Mens Rea (means “guilty state of mind”)

18. Mens Rea The defendant must have had a “guilty state of mind.” General Intent General Intent Required by most crimes; the defendant intended to do the illegal act they are accused of doing. Required by most crimes; the defendant intended to do the illegal act they are accused of doing. Specific Intent Specific Intent Some cases require that the defendant intended to do something beyond the act they are accused of. Some cases require that the defendant intended to do something beyond the act they are accused of.

19. DefensesDefenses Insanity Insanity A defendant who can prove he was insane at the time of the crime will be declared not guilty. A defendant who can prove he was insane at the time of the crime will be declared not guilty. Most common test used to determine sanity: Most common test used to determine sanity: M’Naughten Rule: must show a serious, identifiable mental illness and that he didn’t understand the nature of his act. M’Naughten Rule: must show a serious, identifiable mental illness and that he didn’t understand the nature of his act. A very small percentage of defendants plead insanity and a very small percentage of those are acquitted. Those who are acquitted often spend longer in mental institutions than they would have spent in prison. A very small percentage of defendants plead insanity and a very small percentage of those are acquitted. Those who are acquitted often spend longer in mental institutions than they would have spent in prison.

20. The Criminal Process

21. Notification to Police -- the police find out about a suspect, sometimes by an informant. Notification to Police -- the police find out about a suspect, sometimes by an informant. Warrant -- if a search is needed, police take an affidavit (sworn written statement from an informant) to a judge, who issues a warrant, giving permission to search a particular place, looking for particular evidence. (Fourth Amendment) Warrant -- if a search is needed, police take an affidavit (sworn written statement from an informant) to a judge, who issues a warrant, giving permission to search a particular place, looking for particular evidence. (Fourth Amendment) Probable Cause -- based on the information given, it is likely that the specified evidence will be found. Probable Cause -- based on the information given, it is likely that the specified evidence will be found. Search and Seizure -- police may search and seize only what is specified by the warrant. Search and Seizure -- police may search and seize only what is specified by the warrant.

22. The Criminal Process (cont’d) Arrest Warrant -- based on information found in the search, the judge may issue an arrest warrant. Arrest Warrant -- based on information found in the search, the judge may issue an arrest warrant. Arrest -- when a suspect is arrested, he is informed of his rights (Miranda warning) and booked (name, photograph and fingerprints are recorded, along with the charges). Arrest -- when a suspect is arrested, he is informed of his rights (Miranda warning) and booked (name, photograph and fingerprints are recorded, along with the charges). Self-incrimination -- the prosecution may not use coercion to force a confession from a suspect. The suspect may refuse to answer any questions that could be used to convict him. (Fifth Amendment) Self-incrimination -- the prosecution may not use coercion to force a confession from a suspect. The suspect may refuse to answer any questions that could be used to convict him. (Fifth Amendment)

23. The Criminal Process (cont’d) Indictment -- if a grand jury (ordinary citizens) determines that there is probable cause to proceed to trial, the suspect is indicted (charged with the crime). Indictment -- if a grand jury (ordinary citizens) determines that there is probable cause to proceed to trial, the suspect is indicted (charged with the crime). Arraignment -- the indictment is read to the suspect, who then pleads guilty or not guilty to the charges. Arraignment -- the indictment is read to the suspect, who then pleads guilty or not guilty to the charges. Plea Bargaining -- in many cases, the prosecution will offer to end the case with reduced charges if the defendant will plead guilty. Plea Bargaining -- in many cases, the prosecution will offer to end the case with reduced charges if the defendant will plead guilty.

24. The Criminal Process (cont’d) Trial and Appeal -- if no plea bargain is reached, the case goes to trial. The prosecution must convince the jury beyond a reasonable doubt in order to convict. Convicted defendants may appeal. Trial and Appeal -- if no plea bargain is reached, the case goes to trial. The prosecution must convince the jury beyond a reasonable doubt in order to convict. Convicted defendants may appeal. The Patriot Act of 2001 – passed in response to the terrorist acts of September 11, 2001; designed to give law enforcement officials greater power to investigate and prevent potential terrorist assaults. The Patriot Act of 2001 – passed in response to the terrorist acts of September 11, 2001; designed to give law enforcement officials greater power to investigate and prevent potential terrorist assaults.

25. Criminal Procedural Protection Description Common Identification Amendment 1. Illegally gained evidence cannot be used in criminal prosecutions. Exclusionary rule Fourth 2. Warrants for search or arrest cannot be issued without probable cause. Probable cause requirement Fourth 3. Acquitted defendants cannot be tried twice for the same crime. Double jeopardy Fifth 4. Defendants in criminal cases have the right to remain silent and cannot be compelled to testify against themselves. Miranda warning Fifth

26. Description Common Identification Amendment 5. Persons taken into custody must be informed of right to remain silent, right to counsel, and that anything they say may be used against them – confessions made without warnings cannot be used to convict a person. Miranda warning Fifth 6. Persons charged with a crime have a right to be represented by effective counsel. Miranda warning Sixth 7. Accused persons have a right to a speedy public trial by a jury of their peers. Trial by jury Sixth Criminal Procedural Protection (cont’d)

27. Description Common Identification Amendmen t 8. Accused persons have the right to confront and cross-examine their accusers. Right of confrontation Sixth 9. Excessive bail or fines, and cruel and unusual punishment are prohibited. No cruel and unusual punishment Eighth Criminal Procedural Protection (cont’d)

28. A Criminal Case Conviction Yes Did the Defendant have the requisite criminal intent? Yes Did the Prosecution prove each of these elements beyond a reasonable doubt? Yes Was the statute constitutionally valid? Yes No criminal conviction No Did the Defendant violate a statute?

29. End of Litigation Roadmaps End of Litigation Roadmaps