Chapter 3 Outline
Court Procedures
1. Procedural Rules
a. Stages of litigation
i. Pretrial ii. Trial iii. Post-trial
2. First Step: Consult with Attorney
a. Attorney tells a client about a lawsuit, including the probability of success, and the procedure, money, and time involved. The time and expense of litigation are important to consider when deciding what course to pursue. Attorney fees can be fixed, accrue on an hourly or contingency basis, or may be set by judge.
3. Pretrial Procedures
a. The Pleadings
i. The Plaintiff’s Complaint
1. Filed by the plaintiff with the clerk of the trial court. It contains (1) a statement alleging the facts necessary for the court to take jurisdiction, (2) a short statement of the facts necessary to show that the plaintiff is entitled to remedy, and (3) a statement of the remedy sought.
a. Service of Process
i. The complaint is delivered to the defendant, with a summons. The summons tells the defendant to answer the complaint and file an answer with the court and plaintiff within a specified time.
b. Method of Service
i. Corporations receive service through their officers or registered agents.
c. Waiver of Service
i. In federal cases, service can be waived ii. The Defendant’s Response
1. Answer
a. Admits the allegations in the complaint or denies them
i. Affirmative Defense
This exists when the defendant admits the truth of the complaint but raises new facts to dismiss action ii. Counterclaim
The defendant’s claim against the plaintiff, who will have to answer with a reply.
2. Motion to Dismiss
Alleges that even if the facts in the complaint are true, their legal consequences present no reason to continue with the suit.
a. Denial of the Motion
If the court denies the motion, and the defendant doesn’t file a further pleading, a judgment will be entered for the plaintiff
b. Grant of the Motion
If motion is granted, the defendant is not required to answer the complaint.
3. No response
Results in a default judgment for the plaintiff
b. Dismissals and Judgments Before Trial
i. Motion to Dismiss
Either party may file a motion to dismiss if they have agreed to settle the case ii. Motion for Judgment on the Pleadings
Any party can file this motion when no facts are disputed and only questions of law are at issue iii. Motion for Summary Judgment
Any party can file this motion if there is no disagreement about the facts and the only question is which laws apply.
c. Discovery
The process of obtaining information from the opposing party or from witnesses
i. Discovery Rules
Discovery is allowed concerning any info that is relevant to any party’s claim or defense ii. Depositions
Sworn testimony, recorded by a court official iii. Interrogatories
A series of written questions for which written answers are prepared and signed under oath iv. Request for Admissions
Written request to a party for an admission of the truth related to trial
v. Request for Documents, Objects, and Entry on Land
Written request to examine documents and other items not in the party’s possession vi. Request for Examinations
Granted when a party’s physical or mental condition is in question vii. Electronic Discovery
Relevant info stored electronically can be the subject of a discovery request
d. Pretrial Conference
Attorneys may meet with the judge to discuss resolving the case or at least to clarify the issues and agree on some things
e. The Right to a Jury Trial
The seventh Amendment to the U.S. Constitution guarantees the right to a jury trial for cases at law in federal courts when the amount in controversy exceeds$20
f. Jury Selection
Most civil matters can be heard by six-person juries. Some trials must be heard by twelve persons
i. Voir Dire
The process by which a jury is selected ii. Challenges
1. Peremptory Challenge
Asking, without providing a reason, for an individual not to be sworn in as a juror
2. Challenge for a Cause
Asking, for a specific reason, for an individual not to be sworn in as a juror
4. The Trial
a. Opening