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Chapter 3: Court Procedures Procedural Rules  Provide a framework for every dispute o Specify what must be done at each age of litigation process  Procedural rules are complex  Rules vary from court to court and state to state  Procedures depend on whether case is civil or criminal  Trials involve “due process” o Requires adequate notice and fair and impartial hearing o Example: Civil trials in federal district courts are governed by Federal Rules of Civil Procedure (FRCP) Stages of Litigation  Three phases o Pre-trial o Trial o Post-trial Consulting with Attorney  Generally the first step of process  Types of Attorneys’ Fees o Fixed fees  Charged for performance of services as drafting and simple will o Hourly fees  Charged for matters that involve an intermediate period of time o Contingency fees  Fixed as percentage (between 25% and 40%) of client’s recovery in certain types of lawsuits  Personal injury lawsuit  If lawsuit is unsuccessful attorney receives no fee  Client must reimburse attorney for all out-of-pocket costs incurred  Settlement considerations o Once attorney is retained, he/she is required to pursue resolution of the matter on client’s behalf Pre-Trial Procedures  Involves o Filing of pleadings o Gathering of evidence (Discovery) o Possible pretrial conference/jury selection  Pleadings o The complaint and answer taken together o Pleadings inform each party of other’s claims and specify issues involved in case o Plaintiff’s complaint  Contains statement alleging:  Facts showing that court has subject-matter and personal jurisdiction  Facts establishing plaintiff’s basis for reliefs  The remedy the plaintiff is seeking  Can be lengthy or brief  Depends on complexity of case and rules of jurisdiction o Service of Process  Court must have proof that defendant was notified lawsuit  Plaintiff must deliver copy of complaint  Summons  A notice requiring defendant to appear in court and answer complaint  Default judgement  If other party fails to respond to allegations o Method of Service  Depends on rules of court or jurisdiction in which lawsuit is brought  Server hands summons and complaint to defendant or leaves is at defendant’s residence/place of business o Waiver of Formal Service  When defendant is willing to waive (give up) her/his rights to be served personally  Defendant receives additional time to respond to complaint  (60 days instead of 20) o Defendant’s response  The form of an answer  Defendant either admits or denies allegations in plaintiff’s complaint  Any allegations not denied by defendant is deemed by court to have been admitted  Affirmative defenses  To raise new facts to show that other party should not be held liable for damages  Defendants in both civil/criminal cases can raise affirmative defenses  Counterclaims  Denying party’s allegations and set forth own claim that the accident occurred  Dismissals and Pre-Trial Judgement o Motion  A procedural request submitted to court by attorney on behalf of her/his client  Filing party must send opposing party a notice of motion  Informs opposing party that motion has been filed  Pretrial motions  Include motion to dismiss, motion for judgement on pleadings, and motion for summer judgement o Motion to Dismiss  Asks court to dismiss case for reasons stated in motion  Normally the defendant requests dismissal  If judge grants motion to dismiss, plaintiff is given time to file amended complaint o Motion for Judgement on Pleadings  Asks court to decide the issue solely on pleadings without proceeding trial o Motion for Summary Judgement  Asks court to grant judgement in party’s favor without trial  Motion can be made before or during trial  Party can submit evidence obtained at any point before trial that refutes other party’s factual claim  Affidavits: copies of documents (contracts, email, letters) obtained through course of discovery Discovery  The process of obtaining information from the opposing party or from witnesses prior to trial  Includes gaining access to: o witnesses o documents o records o other types of evidence  Prevents surprises at trial by giving both parties access to evidence that might be hidden  Serves to narrow issues so trial time is spent productively  Discovery Rules o FRCP/similar state rules set guidelines for discovery activity o Discovery is allowed regarding any matter relevant to claim or defense of any party o Rules attempt to protect witnesses/parties from undue harassment and material disclosure o Court may deny request if it involves privileged or confidential business information o Court can limit scope of discovery in a number of ways  Depositions o Sworn testimony recorded by authorized court official (court reporter) o Impeach  Challenge the credibility of something o Deposition can be used as testimony if witness is not available at trial  Interrogatories o Written questions directed towards the party (under oath)  Not to a witness (difference from depositions)  Requests for Admissions o Written request of truth of matter relation to trial  Requests for documents, objects, and entry upon land  Requests for Examinations o If physical or mental condition of one party is in question  Electronic Discovery o Information stored electronically o E-evidence  Electronic evidence consisting of computer-generated or electronically recorded information (email, voicemail, tweets, spreadsheets, etc.) o Metadata  Electronics that record certain information about files on their hard drives  Can only be obtained from the file in its electronic format  No print-outs Pre-Trial Conference  A hearing  After discovery has taken place and before trial begins attorneys meet with judge Right to a Jury Trial  7 Amendment guarantees right to jury trial o For cases at law in federal courts when amount in controversy exceeds $20  Does not need to be exercised  Jury Selection o Voir Dire (to tell the truth) o Party may challenge certain number of prospective jurors peremptorily  Ask an individual not to be sworn in as juror without reasoning o Alternatively, party may challenge prospective juror “for cause”  Provide reason why individual should not be sworn in as juror The Trial  Opening statements o The facts that both attorneys prove during trial o Provides opportunity for each lawyer to give a brief version of facts and supporting evidence being used during trial  Rules of evidence o A series of rules the courts have created to ensure that any evidence presented during trial is fair/reliable o Evidence Must Be Relevant to Issues  Evidence that proves/disproves a fact in questions or establish degree of probability of fact or action o Hearsay Evidence Not Admissible  Testimony someone gives in court about a statement made by someone else who was not under oath at time of statement  Examination of Witnesses and Potential Motions o Direct examination  Calling first witness for plaintiff, and examining, or questioning, witness o Cross-examination  The interrogation of a witness by one’s opponent o Two types of witnesses  Expert  Fact (average person) o Expert Witnesses  A person who has specialized knowledge in a particular area beyond an average person  When witnesses are qualified as experts they can offer their opinions and conclusions about evidence in that field o Potential Motion and Judgement  Motion for judgement as a matter of law  When the defendant’s attorney may ask judge to direct the verdict for defendant on the ground that plaintiff has presented no evidence to support her/his claim o Defendant’s Evidence  Defendant’s attorney presents evidence and witnesses for defendant’s case  Rebuttal  Offering additional evidence that refutes defendant’s case  Rejoinder  Refute evidence o Closing Arguments, Jury Instructions, and Verdict  Closing Argument  Each attorney summarizes facts and evidence presented to trial  Indicates why facts and evidence support his/her client’s claim  Jury instructions  Instructions often called charges  In civil trial, standard of proof is a preponderance of evidence  In criminal trial, standard proof must prove its case beyond a reasonable doubt  Verdict  Specifies jury’s factual findings Post-trial Motions  Motion for new trial o Only if she/he believes the jury was in error and it is not appropriate to grant judgement for other side  Motion for Judgement N.O.V. (notwithstanding the verdict o If the defendant’s attorney moved earlier for directed verdict The Appeal  Either party may appeal verdict during trial o Appellants must have legitimate grounds  Filing Appeal o Contains all pleadings, motions, and other documents filed with court o Contains complete written transcript of proceedings, including:  Testimony  Arguments  Jury instructions  Judicial rulings o Brief  A formal legal document outlining facts and issues of case, judge’s rulings, or jury’s findings that should be reversed or modified  Appellate Review o Court has following options after reviewing case:  Affirm trial court’s decision  Reverse trial court’s judgement if trial court erred  Remand (send back) case to trial court for further proceedings  Affirm or reverse decision in part  Modify a lower court’s decision  Higher Appellate Courts o Losing party does not have right to have case heard by higher appellate court Enforcing the Judgement  Requesting court assistance in collecting judgement o Writ of execution  An order directing the sheriff to seize and sell the defendant’s nonexempt assets, or property  Availability of Assets o Plaintiff checks if defendant has sufficient assets before suit is filed