Chapter 6The Civil Litigation Process

Chapter 6The Civil Litigation Process

Chapter Overview

1. Introduction
2. Civil Litigation—A Bird’s-Eye View
3. The Preliminaries
4. The Pleadings
5. Pretrial Motions
6. Discovery
7. Preparing for Trial
8. The Trial
9. Posttrial Motions and Procedures

Chapter Objectives

After completing this chapter, you will know:

• The basic steps involved in the civil litigation process and the types of tasks that may be required of paralegals during each step of the pretrial phase.
• How a lawsuit is initiated and what documents are filed during the pleadings stage of the civil litigation process.
• What discovery is and what kind of information attorneys and their paralegals obtain from parties to the lawsuit and from witnesses when preparing for trial.

• How attorneys prepare for trial and how paralegals assist in this task.
• The various phases of a trial and the kinds of trial-related tasks that paralegals often perform.
• The optionsavailable to the losing party after the verdict is rendered.

Chapter Outline

I. INTRODUCTION

A. The paralegal plays an important role in helping the trial attorney prepare for and conduct a civil trial.

B. Many paralegals assist the attorney at trial, in the courtroom.

II. CIVIL LITIGATION―A BIRD’S-EYE VIEW

A. Pretrial Settlements

1. In most cases, the parties reach a settlement before the case goes to trial.

2. Because lawsuits are costly in terms of time and money, it is usually in the interest of both parties to settle the case out of court.

3. To be prepared for trial, both the attorney and paralegal must assume that the case will go to trial while, at the same time, attempting to reach a settlement.

B. Procedural Requirements

1. The procedural rules of the court in which the lawsuit is brought must be followed.

2. All federal civil trials are governed by the Federal Rules of Civil Procedure (FRCP).

III. THE PRELIMINARIES

A. The Initial Client Interview

1. Only an attorney can accept a case, set a fee, and give legal advice. Therefore, the initial client interview should be conducted by the attorney.

2. Because the paralegal will be working with the attorney on the case, the paralegal should attend the initial client interview.

IV. THE PLEADINGS

A. Drafting the Complaint—The complaint is a document that states the claims the plaintiff is making against the defendant. The complaint includes the following sections:

1. The Caption—The heading that identifies the name of the court, the title of the case, the parties involved and the court’s file number

2. Jurisdictional Allegations—Statement that alleges that the court has jurisdiction over the case and the parties

3. General Allegations (The Body of the Complaint)—Factual allegations that establish the cause of action

a. Advocate Plaintiff’s Position

b. Be Clear and Concise

c. Outline the Harms Suffered and the Remedy Sought

4. Prayer for Relief and Signature—Statement at the end of the complaint where the plaintiff asks for the appropriate remedy

5. Demand for a Jury Trial

B. Filing the Complaint

1. Traditional Method of Filing—Traditionally, a person filing a complaint personally delivers the complaint to the clerk of the appropriate court.

2. Electronic Filing Methods

a. The FRCP provides that federal courts may permit filing by electronic means that are consistent with any technical standards established by the Judicial Conference.

b. Today, most district courts have e-filing.The e-filing system for the federal appellate courts began in late 2004.

c. State and local courts are also setting up electronic filing systems.

C. Service of Process

1. The Summons—The summons is a legal document that identifies the parties to the lawsuit and the court in which the case will be heard, and directs the defendant to respond to the complaint within a specified time period.

2. Serving the Complaint and Summons

a. How service occurs depends upon the rules of the court or jurisdiction in which the lawsuit is brought.

b. Many law firms contract with independent companies that provide process service.

c. Alternative Service Methods—Substituted service is any method of service allowed by law in place of personal service.

d. Proof of Service—A return-of-service form is submitted to the court as evidence that service has been made.

e. Jurisdictions may vary—A paralegal must be careful to comply with the service requirements of the court in which the lawsuit is brought.

3. Serving Corporate Defendants

a. The summons and complaint are served on an officer or a registered agent (representative) of the corporation.

b. The name of the corporation’s registered agent can be obtained from the secretary of state’s office.

4. The Defendant Can Waive Service

a. If the defendant is aware the lawsuit is being filed, he or she may waive (give up) the right to be formally served with a summons.

b. Defendants who agree to waive formal service of process receive additional time to respond to the complaint under the FRCP.

D. The Defendant’s Response

1. If the defendant fails to respond to the complaint within the appropriate time period, a default judgment is entered by the court against the defendant.

2. The Answer

a. A defendant’s answer must respond to each allegation set out in the plaintiff’s complaint.The defendant must admit or deny each allegation.

b. Any allegations that are not denied by the defendant are deemed to have been admitted.

c. Answer and Affirmative Defenses—An affirmative defense is when the defendant, in the answer, indicates why he or she should not be held liable for the plaintiff’s injuries (even where the facts, as alleged by the plaintiff, are true).

3. Motion to Dismiss

a.A motion is a procedural request submitted to the court.

b. A notice of motion must also be served on the opposing party.

c. The motion to dismiss requests the court to dismiss the case for reasons provided in the motion.

d. Supporting affidavits (sworn statements) can be attached to the motion in its support.

e. A memorandum of law (sometimes called a brief) may also be submitted along with the motion to dismiss.

E. The Scheduling Conference

1. After the complaint and answer are filed, the court will typically schedule a conference to consult with the attorneys for both sides.

2. At this conference, the judge will enter a scheduling order that sets out time limits for the case.

3. Rule FRCP 16(b) governs the scheduling order.

F. Amending the Pleadings—Because no attorney can anticipate how a case will evolve, the complaint or answer may have to be amended.

V. PRETRIAL MOTIONS

A. Motion for Judgment on the Pleadings—A motion for judgment on the pleadings indicates that no facts are in dispute, and the only question is how the law applies to a set of undisputed facts.

B. Motion for Summary Judgment

1. A motion for summary judgment asks the court to grant a judgment (without a trial) on behalf of the party filing the motion.

2. The court will grant this motion if it determines that no facts are in dispute and that the only question is how the law applies to a set of facts agreed on by both parties.

3. When the court considers this motion, it can take into account evidence outside the pleadings.

VI. DISCOVERY

A. Discovery is the process of obtaining information from the opposing party or from other witnesses.

B. The discovery rules are designed to make sure that a witness or a party is not unduly harassed, that privileged information (communications that ordinarily may not be disclosed in court) is safeguarded, and that only relevant matters are discoverable.

C. Interrogatories

1. Drafting Interrogatories—FRCP 33 limits the number of interrogatories in federal court cases to twenty-five.

2. Answering Interrogatories—The party receiving the interrogatories must answer them within a specified time period (thirty days under FRCP 33), in writing, and under oath.

D. Depositions

1. Depositions are oral questions, given under oath.

2. Depositions may be taken of witnesses as well as parties.

3. The person being deposed is the deponent.

E. Requests for Production and Physical Examination

1. FRCP 34 authorizes each party to request documents and other forms of evidence from any other party.

2. If the mental or physical condition of a party is in controversy, the court (upon request) may order the party to submit to a physical or mental examination by a licensed examiner.

F. Requests for Admission

1. FRCP 36 permits one party to request that the opposing party admit the truth of matters relating to the case.

2. Any matter admitted under this request is conclusively established as true for the trial.

G. The Duty to Disclose under FRCP 26

1. Under the FRCP, each party to a lawsuit has a duty to disclose to the other party specified types of information prior to the discovery stage of litigation.

2. Initial Disclosures

a. Under FRCP 26(a)(1), each party must disclose specified information at the initial meeting or within ten days following the meeting.

b. The following information is to be disclosed:

i. Name, address, and telephone number of anyone who is likely to have discoverable information.

ii. Copies of all documents and data that are relevant to the dispute.

iii. Computation of the damages claimed—How was this figure determined?

iv. Copies of any insurance policies that covered the harm.

3. Subsequent Disclosures

a.Subsequent disclosures must be in writing and signed by the attorneys and filed with the court.

b.Subsequent disclosures include information relating to expert witnesses and other witnesses and exhibits that will or may be used at trial.

H. Discovery of Electronic Evidence

1. The Advantages of Electronic Evidence

a. A great deal of data, or metadata (the hidden data kept by the computer about a document), can be obtained from a computer’s hard drive.

b. This data can only be obtained from the file in its electronic format, not from printed versions.

c. E-mail communications

d. E-mails may be the “smoking guns” of the future.

e. E-mails are very believable and compelling evidence.

f. Deleted files can be retrieved

2. The Sources of Electronic Evidence

a. Backup data—e-mail messages, word processing documents, voice mail, video, electronic calendars, Palm Pilots, laptops, blackberries, cell phones

3. The Special Requirements of Electronic Evidence

a. To ensure that e-evidence is admissible as evidence in court, two things are required:

i. Make sure an exact image copy of the e-evidence is obtained.

ii.Make sure that you can prove nothing has been altered or changed from the time the image copy was made.

b. Acquiring an image copyis best left to an expert in computer forensics.

c. Make sure you can prove that nothing has been altered or changed since the copywas made.

i. The phrase chain of custody refers to the movement and location of evidence from the time it is obtained to the time it is presented in court.

ii. Chain of custody is particularly crucial when dealing with e-evidence, because e-evidence is particularly prone to addition, change, or deletion.

V. PREPARING FOR TRIAL

A. Contacting and Preparing Witnesses

1. Typically, litigation paralegals are responsible for ensuring that witnesses are available and in court on the day of trial.

2. Contacting witnesses and issuing subpoenas

a. Paralegals often assist in contacting and issuing subpoenas to witnesses to secure their attendance at trial.

b. A subpoena is a court order directing a person to appear in court.

c. The paralegal should comply with the court’s requirements regarding witness fees and subpoenas.

3. Preparing witnesses for trial

a. The paralegal may be asked to prepare witnesses for trial by asking them questions and role-playing.

b. Tell Witnesses What to Expect

i. Discuss types of questions that may be asked.

ii. Have the witness review witness statements he or she previously made.

c. Role-Playing

i. This type of rehearsal is often valuable in helping the witness understand more fully how questioning will proceed.

ii. The paralegal may also take the witness to the courtroom to familiarize the witness with the trial setting.

d. Other Details

i. Paralegals may recommend appropriate clothing and grooming for trial.

B. Exhibits and Displays

1.Paralegals are frequently asked to prepare exhibits or displays that will be presented at trial.

2. If any exhibits require special equipment, such as an easel, VCR, or laptop computer, the paralegal will need to make such arrangements.

C. The Trial Notebook

1. Many paralegals assume responsibility for preparing the trial notebook for the attorney.

2. The paralegal should consult with the attorney to see how he or she wishes the trial notebook to be categorized.

3. The documents in the notebook should not be the original documents, but rather copies of them.

4. The notebook should include:

a. An index of what is in the notebook;this is in the front of the notebook.

b. Copies of the pleadings

c. Interrogatories

d. Deposition transcripts and summaries

e. Pretrial motions

f. A list of exhibits and a case outline indicating when they will be used

g. A witness list and the questions that will be asked of each witness

h. Relevant cases or statutes

i. Any additional documents or information needed

D. Pretrial Conference

1. Prior to trial, the attorneys for both sides usually meet with the trial judge in a pretrial conference.

2. At the pretrial conference, the attorneys and judge decide whether a settlement is possible.

3. If settlement is not possible, the attorneys and judge decide how the trial will be conducted and what types of evidence will be admissible.

4. A motion in limine (to limit evidence) may be made by one or both of the attorneys at the pretrial conference.

E. Jury Selection

F. Voir Dire

1. The jury-selection process is called voir dire.

2. During voir dire, attorneys for both sides question jurors to determine whether bias exists or whether, for other reasons, certain jurors should be excluded from the jury.

3. Challenges during Voir Dire

a. Attorneys can exclude prospective jurors from sitting on the jury through the exercise of challenges for cause and a limited number of peremptory challenges.

b. Challenge for Cause

i. A challenge for cause is exercised when a particular prospective juror is biased for some reason.The reason given for excluding the juror must be accepted by the court.

ii. Each side has an unlimited number of challenges for cause.

c. Peremptory Challenge

i. No reason need be given for excluding a juror based on a peremptory challenge. However, such challenge cannot be discriminatory.

ii. Each side has a limited number of these challenges.

VI. THE TRIAL

A. Opening Statements

1. The trial begins with opening statements.

2. During opening statements, the attorneys give a brief version of the facts and the supporting evidence that they will use during the trial.

B. The Plaintiff’s Case—After opening statements, the plaintiff’s attorney presents evidence supporting the plaintiff’s claim.

C. Motion for a Directed Verdict

1. After the plaintiff’s attorney has presented his client’s case and both attorneys have examined the witnesses, the defendant’s attorney may make a motion for a directed verdict.

2. A motion for a directed verdict is also called a motion for judgment as a matter of law.

3. The motion asserts that the plaintiff has not offered enough evidence to support the validity of the plaintiff’s claim against the defendant.

4. If the judge grants the motion, the case will be dismissed.

D. The Defendant’s Case

1. After the plaintiff’s attorney has presented the plaintiff’s case, the defendant’s attorney presents evidence and testimony to refute the plaintiff’s claims.

2. Any witness called to the stand by the defendant’s attorney will be subject to direct examination, cross-examination, redirect examination, and recross-examination.

E. Closing Arguments

1. After the defendant’s attorney has finished his or her presentation, both attorneys give their closing arguments.

2. Each attorney summarizes the major points that were made during the trial and attempts to show how the evidence presented favors a verdict in his or her client’s favor.

F. The Verdict

1. Following the attorneys’ closing arguments, the judge instructs the jurors.

2. The judge instructs the jurors in a charge (also called jury instruction).

3. A charge is a document that includes statements of the applicable laws and a review of the facts as they were presented during the trial.

4. After the jury instructions, the jury then begins its deliberations.

5. When the jury has reached a decision, it issues a verdict in favor of one party or another.

VII. POSTTRIAL MOTIONS AND PROCEDURES

A. After the verdict is pronounced and the trial concluded, the losing party’s attorney may make one or several posttrial motions.

B. Motion for judgment notwithstanding the verdict

1. A motion for judgment notwithstanding the verdict is also called a motion for judgment as a matter of law in federal courts.

2. This motion alleges that the judge should enter a judgment in favor of the losing party in spite of the verdict actually reached.

3. The basis for this motion is that the verdict was not substantiated by the evidence or was otherwise erroneous.

C. Motion for a new trial

1. This motion asserts that the trial was so flawed that a new trial should be held.

2. The basis for this motion is judge or juror misconduct or other pervasive errors in the first trial.

D. Appealing the verdict

1. An attorney may appeal the decision to an appellate court for further review and decision.

2. Notice of appeal

a. The appellant (the party appealing the decision) must file a notice of appeal with the court that rendered the judgment.

b. The clerk of that court then notifies the appellee (the party against whom the appeal is taken).

3. The appellate brief and oral arguments

a. When a case is appealed, both sides submit written briefs that present their positions regarding the issues to be reviewed by the appellate court.

b. The appellate court decides the matter and then issues a formal written opinion, which may be published in the relevant reporter.