Chapter 04 – Litigation

  1. Litigation – An Overview
    1. Parties

i.      The party who files a civil action is called the plaintiff.

ii.      The party sued is known as the defendant, also used to describe the person against whom a criminal charge is filed by the prosecuting state or federal government.

iii.      When a defendant wants to sue the plaintiff, the defendant files a counterclaim.

iv.      Most jurisdictions use the terms counterplaintiff and counterdefendant to describe the parties to the counterclaim. Thus, the defendant becomes a counterplaintiff and the plaintiff becomes a counterdefendant when a counterclaim is filed.

v.      In most state jurisdictions and federal courts, the law allows all persons to join in one lawsuit as plaintiffs if the causes of action arise out of the same transaction or series of actions and involve common questions of law or fact.

  1. Plaintiffs may also join as defendants all persons who are to a complete determination or resolution of the questions involved.

vi.      In addition, if a defendant alleges that there cannot be a complete determination of a controversy without the presence of other parties, he or she may bring in new third parties as third-party defendants.

  1. This procedure usually is followed when there is someone who may have liability to a defendant if the defendant has liability to the plaintiff.
  2. Standing to Sue

i.      A court’s power to resolve a controversy is limited by the subject matter involved in the case.

  1. The plaintiff must show the court that it has subjective matter jurisdiction to hear the case.
  2. The plaintiff must establish that he or she is entitled to have the court decide the dispute, that is, he or she has standing to sue.

ii.      To establish the required standing, a plaintiff must allege two things.

  1. The plaintiff must allege that the litigation involves a case or controversy.
    1. Courts are not free to litigate matters that have no connection to the law.
    2. The plaintiff must allege a personal stake in the resolution of the controversy.
      1. This element of standing prevents any individual from asserting the rights of the general public or of a group of which he or she is not a member.

iii.      Without the requirements of standing, courts would be faced with abstract legal questions of potentially wide public significance, questions generally best left to legislative bodies or administrative agencies.

  1. Personal Jurisdiction

i.      Power to hear a case means a court must have authority not only over the subject matter of the case but also over the parties to the case.

  1. This latter authority is called personal jurisdiction.
  2. Personal jurisdiction over the plaintiff is obtained when the plaintiff files the suit.

ii.      Personal jurisdiction over the defendant usually is obtained by the service of a summons, or notice to appear in court, although in some cases it is obtained by the publication of notice and mailing a summons to the last known address.

  1. This delivery of notice is referred to as service of process.
  2. Service of a summons on the defendant usually is valid if it is served upon any member of the household above a specified age and if another copy addressed to the defendant is mailed to the home.

iii.      Previously, a summons could not be properly served beyond the borders of a state in which it was issued.

  1. Now states have what are called long-arm statutes, which provide for the service of process beyond their boundaries.
  2. The typical long-arm statute allows a court to obtain jurisdiction over a defendant even though the process is served beyond its borders if the defendant:
    1. Has committed a tort within the state.
    2. Owns property within the state that is the subject matter of the lawsuit.
    3. Has entered into a contract within the state or transacted the business that is the subject matter of the lawsuit within the state.
    4. Long-arm statutes do not authorize out-of-state service of process in all cases.
      1. Personal jurisdiction is obtained under long-arm statutes only when requiring an out-of-state defendant to appear and defend does not violate due process.

iv.      In criminal suits, the crime must have been committed within the state for the court to have jurisdiction over the case.

  1. Jurisdiction over the person of the defendant is obtained by arrest.
  2. In the event of arrest in a state other than that in which the crime was committed, the prisoner must be transported back to the state where the crime occurred.
  3. The process of requesting and transporting the prisoner from one state to another is called extradition.

v.      Regardless of the type of case, a defendant may decide not to object to a court’s exercise of personal jurisdiction.

  1. Class-Action Suits

i.      A class-action suit is one in which one or more plaintiffs file suit on their own behalf and on behalf of all other persons who may have a similar claim.

  1. Class-action suits may also be filed on behalf of all shareholders of a named corporation.
  2. Often involve matters in which no one member of the class would have a sufficient financial interest to warrant litigation.
  3. Avoids a multiplicity of suits involving the same issue, especially when the issues are complex and the cost of preparation and defense is very substantial.

ii.      At the federal level, the Supreme Court discourages class-action suits.

  1. Federal cases require that members of the class be given notice of the lawsuit.
    1. Notice given to all members of the class whose names and addresses can be found through reasonable efforts.
    2. Those plaintiffs seeking to bring the class-action suit must pay all court costs of the action, including the cost of compiling the names and addresses of those in the class.
    3. If the trial court denies the plaintiff a right to represent the class, that decision cannot be appealed until there is a final decision in the lawsuit itself.
    4. Denial of a class-action status making it impractical to continue the litigation does not give grounds for an immediate appeal.
    5. Litigation Overview Summary

i.      The party who files a civil action is called the plaintiff and the party sued is known as the defendant.

ii.      To establish a standing to sue, a plaintiff must establish that a case or controversy exists and that he or she has a personal stake in the resolution of the case.

iii.      Long-arm statutes are constrained or limited by the requirement the defendant has sufficient minimum contacts with the state.

iv.      Many requirements must be met to bring a class-action suit, particularly in a federal court.

 

  1. Pretrial Procedures
    1. Pretrial Procedure:

i.      Plaintiff files complaint

ii.      Complaints and summons served on defendant

iii.      Defendant files motion or answer with possible counterclaim and defenses

iv.      Court rules on motions

v.      Plaintiff files reply to answer

vi.      Attorneys conduct discovery procedures

vii.      Parties may file motions for summary judgment or judgment on pleadings

viii.      Court conducts pretrial conference

  1. Pleadings

i.      The legal documents that are filed with a court to begin the litigation process are called pleadings.

  1. Through the contents of the pleadings, the issues to be resolved are brought into sharper focus.

ii.      Lawsuits begin by a plaintiff filing a pleading called a complaint, with the court clerk.

  1. The complaint contains allegations by the plaintiff and a statement or request of the relief sought.
  2. The clerk issues the summons, and a court official (usually a sheriff or marshal) delivers the summons and a copy of the complaint to the defendant.

iii.      The summons provide the date by which the defendant must respond to the complaint.

  1. The response usually takes the form of a written pleading, called an answer.
  2. The answer will either admit or deny each allegation of the complaint and may contain affirmative defenses that will defeat the plaintiff’s claim.
  3. The answer may also contain causes of action the defendant has against the plaintiff, called counterclaims.
  4. If the defendant does not respond in any way, the court may enter an order of default and grant the plaintiff the relief sought by the complaint.

iv.      After receiving an answer that contains one or more counterclaims, the plaintiff files a reply that specifically admits or denies each allegation of the defendant’s counterclaims.

  1. The factual issues of a lawsuit are thus formed by one party making an allegation and the other party either admitting it or denying it.
  2. In this way, pleadings give notice of each party’s contentions and serve to set the boundary lines of the litigation.

 

  1. Steps in Discovery

i.      Discovery is the procedures by which one party to a lawsuit may obtain information relevant to the case from the other party or from third persons.

ii.      Purpose

  1. Discovery procedures are designed to take the sporting aspect out of litigation and ensure that the results of lawsuits are based on the merits of the controversy and not on the ability, skill, or cunning of counsel.
  2. Discovery practice is designed to ensure that each side if sully aware of all the facts involved in the case and of the intentions of the parties.
    1. Aids trial preparation by permitting the parties to learn how a witness will answer questions prior to actual questioning in the trial
    2. Provides “dress rehearsal” for the trial.
    3. Narrows the issues disputed by the parties.

i.      Discovery encourages the settlement of the lawsuit, thereby avoiding the actual trial.

iii.      Methods

  1. Only through aid of a client that a lawyer can gain the confidence that the discovery is complete and that the case is ready to go to trial.
  2. The least expensive method of discovery is to present a series of written questions to the opposing parties. The questions, called interrogatories, must be answered by the party receiving them.
    1. Commonly plaintiff and defendant attach a series of interrogatories to their respective pleadings.
    2. After answers to the interrogatories are received, either party might ask the other to produce specific documents, called request for production of documents, that are important to the lawsuit’s outcome.
    3. In a personal injury action, the defendant can require the plaintiff to submit to a physical examination by the defendant’s expert physician.
      1. Objection to the specific doctor is allowed, objection to the physical exam is not permissible.
      2. The most expensive method of discovery is also the most revealing with regard to preparing for the trial.
        1. To conduct discover to the greatest extent possible, the lawyers will wan t to take depositions of all potential witnesses.
        2. All spoken words are recorded by a court reporter, and a written transcript is prepared.
      3. After some or all of these methods of discovery are used, either party may request the other to admit that certain issues presented in the pleadings are no longer in dispute. The request for an admission narrows some issues and makes settlement more likely.
    4. Scope of Discovery

i.      The discovery procedures are intended to be used freely by the parties to litigation without the court’s direct supervision.

  1. At times, a question about the scope of what is discoverable arises, and the party objecting to discovery seeks the judge’s opinion.
  2. A ruling must be given.
  3. The usual rule is that as long as the information sought in discovery will lead to evidence admissible during the trial, the information is discoverable and an objection is overruled.
  4. If a party fails to produce relevant, requested evidence, the party seeking the information may file a motion to compel discovery, asking the court to order production of the material.

ii.      Discovery imposes a tremendous burden on the judicial system because judges must be diverted from other important matters, such as hearing criminal cases or conducting trials, to resolve heated discovery disputes.

  1. Motions

i.      Typical Pretrial Motions

  1. Motion to dismiss, including for Statute of Limitations
  2. Motion for judgment on the Pleadings
  3. Motion for Summary Judgment
  4. Motion: Frivolous Litigation/Rule 11
  5. Motion to Compel Discovery
  6. Motion in Limine (excluding evidence from trail).

ii.      During the pretrial phase of litigation, either plaintiff or defendant or both may attempt to convince the court that there are no questions about the factual setting of the dispute.

  1. An argument is presented that there are only questions of law for the judge to resolve.

iii.      When a question of law is at issue, the parties can seek a pretrial determination of their rights by filing a motion with the court.

  1. Motions can be made at any point in the litigation process.
  2. The defendant may instead of filing an answer, file a motion to dismiss for failure to state a cause of action: even if everything the plaintiff says in his complaint is true, he is not entitled to the relief he seeks.

iv.      The defendant may also move to dismiss a suit for reasons that as a matter of law prevent the plaintiff from winning his or her suit.

  1. Such matters as a lack of jurisdiction of the court to hear the suit, or expiration of the time limit during which the defendant is subject to suit, may be raised by such a motion.
    1. Usually this argument is referred to as the statute of limitations.
    2. Each state has a prescribed time limit after which a suit cannot be filed.

v.      The rules of procedure in the federal court system and in most of the state systems provide for motions for a judgment on the pleadings, which asks the judge to decide the case based solely on the complaint and the answer.

vi.      A motion for summary judgment seeks a similar conclusion to the litigation prior to a trial.

  1. The party filing this motion is asking the judge to base a decision not only on the pleadings but also on other evidence.
  2. Such evidence usually is presented in the form of sworn statements called affidavits.
  3. The judge may also conduct a hearing and allow the lawyers to argue the merits of the motion for summary judgment.
    1. If there are no material disputed issues of fact, the judge will decide the legal issues raised by the case and enter a judgment in favor of one party over the other.
    2. Even if the motion for summary judgment is not granted in full, its use often narrows the issues for trial.
    3. Frivolous Cases

i.      Either on a motion by a party or on their own initiative, judges may terminate the litigation process if there is a finding that the lawsuit is frivolous, that is, totally lacking in merit

  1. What initially may appear to be a frivolous complaint may upon the presentation of evidence become a legitimate case.

ii.      Fines assessed against lawyers who file frivolous cases.

iii.      Rule 11 states: The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law, and that it is not interposed for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

  1. Most states have a rule similar to Federal Rule 11.
  2. Pretrial Procedures Summary

i.      Lawsuits typically are won and lost at the discovery stage of litigation.

ii.      Interrogatories are a series of written questions that must be answered by the opposing party.

iii.      Substantial penalties can be imposed by courts for abusing the discovery process.

iv.      Abusive discovery is one of the primary reasons for the high cost of litigation.

v.      A motion for summary judgment seeks to resolve the case without a trial.

vi.      Frivolous cases are not a significant problem and can be redressed.

  1. The Trial
    1. Trial Steps

i.      Voir dire – Parties and their attorneys select jury

ii.      Attorneys present opening statements

iii.      Plaintiff presents evidence through witnesses

iv.      Defendant moves for direct verdict/judgment as a matter of law

v.      Defendant presents evidence through witnesses

vi.      Attorneys present closing arguments

vii.      Court instructs jury on the law

viii.      Jury deliberates and makes decision (verdict)

ix.      Judge enters judgment on verdict

x.      Losing party files posttrial motion

  1. If efforts to resolve a case through pretrial motions or negotiations have been unsuccessful, the case will proceed to trial. Trial involves the presentation of evidence to a jury to determine the actual facts in dispute, the judge explains the applicable law to the jury, the jury is asked to deliberate and render a verdict and the trial court must then decide whether to enter a judgment based on the jury’s verdict.
  2. Jury Selection

i.      Prior to the calling of  the case, the court clerk will have summoned prospective jurors whose names are drawn at random from lists of eligible citizens, and the number of jurors required is selected or called into the jury box to conduct the voir dire examinations (literally: to speak the truth).

  1. This examination allows the court and often the attorneys for each party to examine each potential juror as to his or her qualifications and ability to be fair and impartial jurors in both civil and criminal cases.

ii.      Either party in the lawsuit may challenge or excuse a prospective juror for a specific reason or cause.

  1. The plaintiff and defendant are given a certain number of challenges, known as peremptory challenges, for which no cause or reason need be given to excuse a prospective juror.

iii.      Baston v. Kentucky – outlaw racial discrimination in jury selection.

iv.      J.E.B. v. Alabama Ex Rel. T.B. – banned gender discrimination in jury selection

  1. Other Steps During a Trial

i.      After selecting jurors to hear the case, the attorneys make their opening statements.

  1. An opening statement is not evidence; it familiarizes the jury with the essential facts that each ide expects to prove.

ii.      After the opening statements, the trial continues with the plaintiff introducing evidence to establish the truth of the allegations made in the complaint.

  1. Evidence is normally presented in open court by the examination of witnesses and production of documents and other exhibits.
  2. After the plaintiff has presented his or her evidence, the defendant may make a motion for a direct verdict.
    1. Under rule 50 of the Federal Rules, this motion is called a Judgment as a Matter of Law.
    2. The court can only direct a verdict for one party if the evidence, taken in the light most favorable to the other party, establishes as a matter of law that the party making the motion is entitled to a verdict.
    3. Just as the plaintiff must allege certain facts of have the complaint dismissed by motion to dismiss, he or she must have some proof of each essential allegation or lose the case on a motion for a direct verdict.
    4. After the parties have completed the presentation of all the evidence, the lawyers have an opportunity to summarize the evidence.
      1. The lawyers in closing arguments try to convince the jury (or judge if no jury is used) of what the case’s outcome should be.
      2. Following the closing arguments, the judge acquaints the jury with the law applicable to the case, called jury instructions.
        1. As the function of the jury is to find the facts and the function of the court is to determine the applicable law, the purpose of jury instructions is to bring the facts and the law together in an orderly manner that will result in a decision.
    5. Burden of Proof

i.      The burden of proof has two meanings depending on the context in which it is used.

  1. It may describe the burden or responsibility that a person has to come forward with evidence on a particular issue.
    1. The party alleging the existence of certain facts usually has the burden of coming forward with evidence to establish those facts.
    2. It may also describe the responsibility a person has to be persuasive as to a specific fact (burden of persuasion).
      1. The party with this burden must convince the trier of fact on the issue involved.
      2. If a party with the burden of persuasion fails to meet this burden, that party loses the lawsuit.
      3. The burden of persuasion is a legal device used to help determine the rights of the litigating parties.

ii.      Criminal Cases

  1. The extent of proof required to satisfy the burden of persuasion varies, depending upon the issue and the type of case.
    1. For criminal cases, the burden of proof is described as beyond a reasonable doubt.

iii.      Civil Cases

  1. In civil cases, the party with the burden of proof is subject to one of two standards: the preponderance of evidence standard or the clear and convincing proofstandard.
    1. The preponderance of evidence standard is used most frequently and requires that a party convince the jury by a preponderance of evidence that the facts are as he or she contends.

i.      Preponderance of evidence is achieved when there is a greater weight of evidence in support of the proposition than there is against it.

  1. The clear and convincing proof standard is used in situations where the law requires more than a simple preponderance of the evidence but less than proof beyond a reasonable doubt.
  2. Deciding the Case

i.      The principal job of the jury is to determine what the facts are and to apply the law, as instructed by the judge, to these facts.

  1. The jury’s’ decision is called a verdict, and it is announced in the courtroom when the jury’s deliberations are completed.

ii.      The judge must decide whether to accept the verdict. If the judge agrees with the verdict, a judgment is entered in favor of the party what won the jury’s verdict.

iii.      The party who is dissatisfied with the jury’s verdict may file a posttrial motion with the judge seeking either a judgment notwithstanding the verdict, (state court) or for judgment as a matter of law (federal court).

  1. The judge may enter a judgment opposite to that of the jury’s verdict if the judge finds that the verdict is erroneous as a matter of law.

iv.      The party who receives the adverse judgment may file a motion for a new trial.

  1. This motion may be granted if the judge is convinced that a legal mistake was made during the trial.
  2. It is from the ruling on this motion that the losing party appeals.
  3. The Trial Summary

i.      Peremptory challenges may not be based upon race or gender discrimination.

ii.      A direct verdict or judgment as a matter of law may be granted when the evidence establishes, as a matter of law, that the moving party is entitled to a verdict.

iii.      Jury instructions are used to acquaint the jury with the law applicable to the case.

iv.      In most civil cases, the preponderance standard is used to evaluate the case.

v.      A judgment notwithstanding the verdict may be entered if the verdict is erroneous as a matter of law.

  1. Posttrial Issues
    1. When the result at the trial court level is appealed, the party appealing is referred to as the appellant, and the successful party in the trail court is called the appellee.
    2. When a petition for a certiorari is filed to the Supreme Court, the party initiating the petition is the petitioner and the other party is known as the respondent.
    3. Appeals

i.      Appellate review

  1. Party receiving adverse judgment files notice of appeal
  2. Parties file briefs in reviewing court
  3. Oral argument made in reviewing court
  4. Reviewing court announces decision
  5. Further review may be requested by petition to higher court
  6. Higher court allows or denies further review
  7. Final decision (successful party may require judicial assistance in enforcing  the final decision)

ii.      Appellate Procedures

  1. Courts of appeal deal with the record of the proceedings in lower court.
    1. All the pleadings, testimony, and motions are reduced to written record, which is filed with the court of review.
    2. The court of appeal studies these records to determine whether prejudicial errors occurred or whether the lower court reached and erroneous result.
    3. In addition to the record from the trial, each party files a brief.

i.      The briefs contain a short description of the case; a factual summary; legal points and authorities; and arguments for reversing or affirming the lower court decision.

  1. In addition to the brief, the reviewing court is often given the benefit of oral argument in deciding the case.
  2. After oral argument, an initial vote of the judges’ or justices’ impressions is taken.
  3. The case is assigned to one judge or justice to prepare an opinion.
  4. After the opinion is prepared, if the majority approve the opinion, it is adopted.
  5. If the review is conducted by an intermediate appellate court, the losing party may petition the highest court in the system for a writ of certiorari.

iii.      Deference to Trial Courts

  1. Courts of appeal are essential concerned with questions of law.
  2. A reviewing court may also be asked to grant a new trial on the ground that the decision in the lower court is contrary to the manifest weight of the evidence found in court.
  3. Determining the weight and credibility of the evidence is the special function of the trial court.
  4. Enforcement of Judgments and Decrees

i.      After a judgment in a court has become final, either because of the decision on appeal or because the losing party has failed to appeal within the proper time, it may become necessary for the successful party to obtain judicial assistance in enforcing the court decision.

ii.      The primary enforcement mechanism is for the judgment creditor to request the court’s assistance to have the execution of the judgment or decree.

  1. An execution of a judgment occurs when a court official seizes some property of the debtor, sells it at public auction, and applies the proceedings to the credit’s claim.

iii.      Another form of execution is garnishment.

  1. A portion of the debtor’s wages are paid to the court, which in turn pays the creditor.
  2. Res Judicata

i.      Once a decision of the court has become final, it is said to be res jucicata (the thing has been decided), meaning that a final decision is conclusive on all issues between the parties, whether raised in the litigation or not.

  1. Res judicata prevents successive suits involving the same factual setting between the same parties and brings disputes to a conclusion.
  2. A matter once litigated and legally determined is conclusive between the parties in all subsequent proceedings.

 

Litigating Parties

Action Filed Party Filing the Action Part against Whom the Action is Filed
Civil Case Plaintiff Defendant
Criminal Case State or federal government as represented by a prosecutor Defendant
Appeal Appellant Appellee
Petition for a writ of certiorari Petitioner Respondent

 

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