Chapter Seven: Chapter Seven:

Civil LitigationCivil Litigation

Involves legal action to resolve disputes between parties. In civil litigation, the plaintiff sues a defendant to recover money damages or other remedy for the alleged harm the defendant caused the plaintiff.

Initiate the lawsuit Provides the Due Process notice Can consist of

◦ Complaint◦ Petition◦ Cross-complaint◦ Reply◦ Answer◦ Counterclaim

The plaintiff, the party who is suing, files a complaint containing the basis of the lawsuit. ◦ Filed with the court and◦ Served with a summons on the defendant

The complaint must either:◦ Provide a general allegation of the wrongful

conduct alleged (notice pleading) or◦ Plead specific facts alleged, called fact pleading.

Time: Individual court rules provide a time within the initial complaint or petition must be served;

Responsive pleading must be filed to avoid dismissal of the action or a default judgment. ◦ The responding party must file a responsive

pleading (Answer) with the time limit allowed by the court.

Answer: An answer is filed by the defendant with the court and served on the plaintiff. It usually denies most allegations of the complaint.

Cross-Complaint: A cross-complaint is filed and served by the defendant if he or she countersues the plaintiff. ◦ The defendant is the cross-complainant and the

plaintiff is the cross-defendant. The cross-defendant must file an Answer.

Intervention: A person not named in a lawsuit may have an interest, and seek to become involved by way of an intervention

Consolidation: If there are several suits that duplicate facts & legal issues, they may be consolidated in the interests of judicial economy

Statute of Limitations: The period of time within which a suit must be brought

Varies by jurisdiction, and by the nature of the claim

Will begin to “run” when the plaintiff knows or should have known of the injury◦ Date of the accident, breach◦ Date of majority of the plaintiff

Paralegals are at the forefront of e-litigation where many of the documents filed in court are done electronically. The technology currently is available for implementing electronic filing—e-filing—of pleadings, briefs, and other documents related to a lawsuit.

Concept searching ◦ Compares word patterns, incorporated with

Boolean searches Paper reviews (converted into hard copy &

reviewed) Electronic reviews

◦ Look at “loose” electronic files in their “native” format

◦ Use a local litigation database◦ Work with an online document review repository

hosted by an e-discovery service provider

Discovery is a step in the litigation process where the plaintiff and the defendant share information relevant to their dispute.

The purpose of Discovery is to:◦ Evaluate the client’s case◦ Understand strengths/weaknesses of the

opponent’s case◦ Preserve testimony◦ Potentially facilitate settlement◦ Learn information to impeach a witness

Depositions: Oral testimony given under oath to either a party or a witness. Purpose: Preserves evidence Helps prepare for trial Creates a sworn body of testimony

which can be used to impeach the witness on the stand if testimony changes

Interrogatories:◦ Written questions◦ May be highly detailed◦ Propounded only to parties to the suit◦ Must be answered in writing, unless an objection

is made to the question◦ Answered under oath

Production of Documents: documents under the control of one party may be requested by the other side

Used in preparing the case Usually provided by the party in

control, but the work may shift to the requesting party to examine them on-site if their production would◦ Be too voluminous◦ Disrupt ordinary business activities◦ In permanent storage

Physical exams are used to determine the extent of injuries when that is the basis for the claim (personal injury, workers’ compensation)

Mental exams may be ordered if mental trauma is the basis for damages (infliction of emotional distress) or if competency is an issue

Requests for Admission: Written requests issued by one party to the lawsuit to the other asking that certain facts or legal issues be admitted as true.

E-Discovery: Much evidence is in digital form. A case can hinge on a party’s ability to conduct electronic discovery.

Motion to dismiss◦ Demurrer (12(b)(6) motion) – there is no legal

claim◦ Made before the defendant answers

If granted, Δ need not answer If denied, Δ is given additional time to answer

◦ If granted, plaintiff may be given time to amend the complaint Failure to do so will result in a dismissal of the suit

Motion for Judgment of the Pleadings◦ If all the facts alleged in the pleadings are true,

movant would win Summary Judgment motion

◦ If there are no factual issues, there is no need for the trier of fact (usually jury), and the judge, as the trier of law, can make a decision without a trial

◦ Additional affidavits of fact may be considered, but they cannot give rise to a dispute, since that would defeat the motion

Pretrial hearing◦ Facilitates settlement◦ Identifies the trial issues◦ Establishes timelines for motions & discovery◦ May result in diversion into ADR

A Right guaranteed by the Seventh Amendment to the U.S. Constitution

Jury trial

Judge – trier of law

Jury – trier of fact

Bench trial

Judge – trier of law

Judge – trier of fact

Jury selection (voir dire) Opening statements Plaintiff’s case Defendant’s case Rebuttal & rejoinder Closing arguments Jury instructions (charge to the jury) Jury deliberations Judgment

The array (jury pool) is called Prospective jurors fill out a questionnaire Examined by lawyers and/or judge as to

possible bias in the case May be excused “for cause” (potential or

actual bias) or by a peremptory challenge (based on case strategy)

Jurors may be isolated from outside influences (sequestered) if the judge feels it’s necessary

Opening Statements – summary of the issues that will be presented

Plaintiff’s case -- attorney calls witnesses to give testimony & introduce evidence◦ Defendant’s attorney has an opportunity to

cross-examine within the scope of the direct exam

◦ Plaintiff’s attorney can ask questions about matters that fall within the scope of the cross-examination

◦ Plaintiff must meet the burden of proof

Defendant’s case◦ Rebut plaintiff’s evidence◦ Prove any affirmative defenses asserted◦ Prove any allegation made in the cross-

complaint or counterclaim Rebuttal witnesses are called by the

plaintiff to answer defendant’s claims Rejoinder witnesses are called by the

defendant to answer plaintiff’s rebuttal

Closing Arguments are made at the end of the presentation of evidence◦ Each attorney makes an argument to convince

the jurors to accept his or her side of the story◦ This is persuasive argument, not evidence

Jury Instructions are tendered by each side, chosen by the judge, who reads them to the jury, explaining the law to be applied to the facts

Jury deliberations are conducted outside of the courtroom, and continue until the jury has reached a verdict or they decide they are unable to do so

The judge hears the verdict & enters a judgment◦ Based upon the jury verdict, or◦ N.O.V., notwithstanding the verdict (which cannot, as

a matter of law, be upheld), or◦ Remittitur (or additur), having to do with the amount

of damages determined by the jury

Once there is a final judgment, the losing party can appeal if◦ He or she is the defendant in a criminal case◦ There is a timely notice of appeal filed◦ There are grounds for appeal (errors of law)

The appeal usually consists of written briefs of law & possibly oral arguments

Usually heard by three judges

The court can affirm the lower court’s decision, rejecting the claim made by the appellant

The court can determine that the appellant’s claim was valid, and that errors occurred. They can reverse the outcome and send the matter back to the trial court (remand) for retrial

The appellate can only review the law, not the factual findings of the lower court