Court systems developed around the common law concept of “due process” which requires adequate notice and a fair and impartial hearing.
For example: All federal trials are governed by the Federal Rules of Civil Procedure and Federal Rules of Evidence.
Consulting an Attorney
Generally, the first step in litigation is contacting any attorney to seek qualified legal advice.
- Legal Fees (hourly vs. contingent fee).
- Settlement Considerations.
First Stage Pleadings-Complaint
- Prepare Pleadings
- File Petition/Complaint.
- Facts: what happened?
- Prayer: Court relief.
Court acquires jurisdiction over subject matter and Plaintiff.
Defendant served with Complaint and Summons.
Court acquires Personal Jurisdiction over Defendant (person or corporation).
Corporate Defendants served via Registered Agent. If the Defendant is out-of state, Court can acquire jurisdiction by “long-arm” statutes.
The Answer is the Defendant’s response to the allegations stated in the Plaintiff’s Complaint.
In the Answer, the Defendant must specifically admit or deny each allegation in the Complaint.
- States General Denial.
- Move for Change of Venue.
- Allege Affirmative Defenses.
- Counter Claim against Plaintiff.
Defenses in which the defendant essentially claims that even if all of the plaintiff’s allegations are true, the plaintiff cannot win because there is a more powerful law on the defendant’s side that will allow the defendant to win.
Fraud is an example of an affirmative defense that might be asserted in a breach of contract case.
Burden of proof is on the Defendant to show fraud actually took place.
Answer-Counter or Cross Claims
A counterclaim is a lawsuit filed by the Defendant against the Plaintiff, in response to the original complaint. A cross-claim is against a co-Plaintiff or co-Defendant.
Answer-Motion to Dismiss
Defendant can move the Court to dismiss the Action for various reasons, such as:
- The Court lacks jurisdiction.
- The Plaintiff has failed to make all of the allegations, in his Complaint, that the law requires (i.e. the plaintiff has failed to state a cause of action).
- Move to Dismiss.
- Motion for Judgment on Pleadings.
- Motion for Summary Judgment.
Second Stage Discovery
Discovery is the process by which parties obtain information from the opposing party prior to trial.
- Depositions & Interrogatories.
- Requests for Admissions.
- Requests for Production Of Documents, Object and Entry.
Third Stage Litigation-Pretrial
- Disposition without Trial.
- Default Judgments.
- Dismissals (With/Without Prejudice).
- Summary Judgment.
- Pre-Trial Orders.
Trial is fundamentally an evidence presentation and authentication procedure. To prevail in a civil trial, Plaintiff must introduce a preponderance of competent evidence with respect to each disputed allegation in order to prove it.
The Defendant will “object” to Plaintiff’s evidence and the judge will rule on each objection. If the judge “overrules” the objection, the evidence is admitted for the jury to consider. If the judge “sustains” the objection, the evidence is not admitted into the trial.
Bench Trial (no jury).
- Voire Dire.
- Challenges/Pick the Jury.
- Impanel Jury.
- Alternate Jurors.
- Opening Statements.
Witnesses- Direct examination vs. Cross X.
Admissibility of evidence decided by judge. Parties object to admission of evidence and judge decides, as a matter of law, whether evidence may be admitted into the trial.
Party may impeach the testimony or credibility of opposing witness by showing prior inconsistent statements and/or Perjury. Defendant’s Case.
- Closing Arguments.
- Jury Instructions and Deliberations.
Verdict in Criminal case
Burden of proof is “beyond a reasonable doubt” and the verdict (for guilty or acquittal) must be unanimous. If not, mistrial/hung jury.
Verdict in Civil Cases
Generally, burden of proof is by “preponderance” of the evidence and a majority of jurors must agree on verdict. If not, then mistrial/ hung jury.
Judgment is the Court’s acceptance and recording of the jury’s verdict.
Post Trial Motions
Once the trial is concluded, a dissatisfied party may: File a Motion for a New Trial.
Case 3.3: LeBlanc v. American Honda Motor Co (1997).
Ask that the judge enter a judgment contrary to the verdict (JNOV) rendered by the jury.
A party may appeal the jury’s verdict or any legal issue, motion or court ruling during the trial.
The party filing the appeal (Appellant) files a brief that contains a short statement of the facts, issues, rulings by the trial court, grounds to reverse the judgment, applicable law and arguments on Appellant’s behalf.
Appeals court can affirm (agree with) or reverse (disagree with) the lower court’s decision.
Enforcing the Judgment
Once a judgment becomes final (i.e., subject to no further judicial review) the defendant is legally required to comply with its terms.
Defendants who will not voluntarily comply with a judgment can be compelled to do so by seizure and sale of the Defendant’s assets.