INTRODUCTION TO CIVIL LITIGATION

Chapter OneLEGL 261

Objectives Today we will look at

The differences between civil litigation and other types of litigation

Where civil litigation law comes from How the California Court system is

structured How a case moves through the process What the paralegal’s role is in the litigation

process.

A lawyer joke…

The rich, greedy, old man who wanted to take his money with him when he died…

his doctor, priest and lawyer….. My check is good for every penny!

Legally Blond?

http://www.youtube.com/watch?v=_I_GYgGjxFM

What we call ourselves tells the story….

Lawyer Counselor Attorney Barrister Solicitor Advocate “liar”?

Attorney

Champion “at the tournament” Professional fighters, not with swords

anymore…. Now we fight with words.

How are lawyers paid?

By the hour… By the case… On contingency…

%33 and 1/3 percent %40 if trial %0 if lost

What is “Litigation”?

Definition: a legal proceeding in a court; a judicial contest to determine and enforce legal rights. This may include:

Interviews of clients and witnesses Gathering of physical or documentary evidence Correspondence with opposing parties Preparation pleadings and court filings Mediation proceedings Trials and hearings Collections or post-trial actions

Litigation is an Adversarial System Texas style?

EXAMPLES OF CIVIL CASES AUTO ACCIDENT SLIP AND FALL MEDICAL MALPRACTICE BREACH OF CONTRACT FRAUD NON-DISCLOSURE OF DEFECTS IN REAL PROPERY LIBEL OR SLANDER CIVIL RIGHTS VIOLATIONS PRODUCTS LIABILITY EMPLOYMENT DISCRIMINATION SEXUAL HARRASSMENT INVASION OF PRIVACY ASSAULT AND BATTERY

Is the purpose of litigation to get to the “truth”?

I wish! The purpose of the law is to settle arguments

and disputes peacefully and quickly, if possible.

So what is the Law of the United States? Impossible question!!!

The Common Law System

Roots in English law custom and precedent cases - decisions by judges A wall of books…. Supplemented by codes, statutes and

regulations. Can be “over-ruled”

Sources of American Laws

So who writes the law? Lawyers? The Balance of Powers The President (the Executive) The Congress(Senate and House) The Judiciary (Supreme Court)

Jurisdictions

From Latin… Juris = law Diction = speak Local, city, county,

state, federal…. So, how many

jurisdictions are there?

Jurisdictions...

50 states… plus the territories, like Puerto Rico, Guam.. plus the military… plus the Indian Reservations plus the Federal! So what is the law of the United States? I am a California Lawyer...

The Legal Team

Partners Associates Managing Partner Supervising Attorney Paralegal Legal Secretary Law Clerk Intern Investigator (usually a contractor)

Role Of The Paralegal in Litigation

Client intake and filtering Pre-litigation investigation Trial Preparation Conducting Trial Post Trial motions or appeals

Ethical Considerations

Paralegal must work under supervision of an attorney. Why?

Paralegals cannot give legal advice or represent a client in court. Why not?

Paralegals must be competent in performing tasks for clients. Duh! ... ?

Paralegals have a duty to maintain client information confidential. What does that mean?

Ethical Considerations

Communication between an attorney (or paralegal) and a client is privileged (cannot be revealed to third parties without client’s permission). Rule 3-100

Paralegal cannot communicate directly with an adverse party who is represented by counsel. Rule 3-320

Must make sure that there are no conflicts of interest between your firm and the client. Rule 3-310

http://ethics.calbar.ca.gov/Ethics.aspx

Paralegal Representing Parties??Maybe… Social Security Administration Patent Office Federal Disability Claims “Hearing Representative”…Employee of a

Corporation acting in that capacity for employer, and no one else.

Types of Litigation

Civil – resolution of disputes between private parties through the court system.

Criminal - government prosecutes an action against an individual who has committed a crime against society.

Administrative – process by which administrative agencies resolve disputes.

Sources of Law for Civil Litigation

Statutes - legislative law California Code of Civil Procedure

Court Cases - judicial law common law or case law

Constitution U.S. and California

The Federal Court System

Trial Courts – U.S. District Courts or special courts

Intermediate Appeals - U.S. Courts of Appeal – 13 Circuit

Final Appeal - U.S. Supreme Court

The State Court System

Trial Court – Superior Court For the State of California, County of San Diego

Court of Intermediate Appeals – CA Courts of Appeal – 6 Districts

Final Appeals - CA Supreme Court – highest court in the state

From low to high…

Small Claims Court Municipal Court Superior Court (may be joined with Muni) State Supreme (highest court) United States Supreme Court

Other “courts”

Tax court Military Courts... Administrative courts

worker injury unemployment public labor more…. Specialty courts

Alternatives to court...

Negotiation Mediation Arbitration

binding non-binding

Lawsuit… soot, suite, suut?

suit (n.)  c.1300, "attendance at court, the company

attending," also their livery or uniform, via Anglo-French siwte, from Old French suitte "attendance, act of following," from Gallo-Romance *sequita, fem. of *sequitus, from Latinsecutus, past participle of sequi "to attend, follow" (see sequel). 

Stages of Litigation

Information gatheringPleadingDiscovery and motionsTrial Post-trial proceedingsEnforcement

Stages of a Lawsuit

Injury or disagreement Demand Complaint Answer Motions and Discovery Trial Appeal Enforcement

Parties To A Civil Lawsuit

The person or persons who initiate a lawsuit are called the “plaintiffs.”

The person or persons being sued are called the “defendants.”

Legally the word “person” can mean a corporation, business, governmental entity, or an organization, as well as an individual.

Pleading

Is that “begging”? Well, kind of… The King and his court

Asking the authorities for help pleading (n.) 

late 13c., "the carrying on of a suit at court," verbal noun from plead (v.). Meaning "supplication, intercession" is from early 15c.

PLEADINGS

The first document filed in a civil lawsuit is called the complaint.

The complaint is filed by the plaintiff(s). The court will issue a Summons to be served

with the complaint on the defendant(s). The first documents filed by the parties to a

lawsuit are called the pleadings.

Burden of Proof

Civil Case Preponderance of

evidence Criminal Case

Beyond Reasonable Doubt

Defendant’s Pleadings

Answer To Complaint Motion To Strike Demurrer Cross-complaint If the defendant does not respond to the

complaint, a default judgment can be entered against the defendant at plaintiff’s request.

LEGAL REMEDIES

Remedies are what the plaintiff wants the court to order the defendant to do.

Legal remedies are called money damages. Compensatory Damages

General Damages Pain & suffering Can’t put a specific amount to it

Special Damages Reimbursement for medical or other expenses.

LEGAL REMEDIES

Punitive Damages Sometimes called exemplary

damages purpose is to punish the

defendant

EQUITABLE REMEDIES

An equitable remedy is a remedy that does not involve money.

Examples of equitable remedies: Injunction Specific performance Declaratory relief Replevin Rescission of a contract

Lady Justice … why?

While you’re on break…

Legally Blond?

http://www.youtube.com/watch?v=_I_GYgGjxFM