The law's made to take care o' raskills. -- George Eliot


PREMIUM LEGAL RESOURCES LEGAL FORMS ASK A LAWYER

I. An Overview of Procedure

A. Practice and Procedure

1. Procedure - the rules and principles that govern the behavior of courts and lawyers in dealing with disputes that turn into lawsuits

2. Choice between state and federal courts

a. all federal judges are appointed for life

b. in most districts federal courts have smaller case loads and therefore may bring a case to trial faster

c. sometimes the belief that the opponent will be unfamiliar with the greater formality or faster pace of federal courts will lead a lawyer to seek that forum

B. Where can the suit be brought?

1. Subject Matter - whether a court can hear a particular type of dispute

a. General jurisdiction - courts can hear any kind of claim between any persons, unless there is a legal authority saying that they cannot hear a particular kind of case

b. Limited jurisdiction - courts can only hear cases specifically authorized by the statutes that set up the particular court (federal courts)

- certain claims may be brought in the federal courts because of the nature of the claim - "arising under" the Constitution, laws, or treaties of the United States

- others may be brought in federal courts b/c of the citizenship of the parties to the suit

c. Congress decides the precise subject matter jurisdiction of the federal courts - limitation: Congress cannot grant more subject matter than is permitted by the Constitution -- most important statute 28 U.S.C. sections 1331 and 1332

2. Personal Jurisdiction - the state or the federal court in that state must have the power to render a judgment against this particular defendant

- a person who was a domiciliary of a state was subject to jurisdiction in that state, even if served outside of its borders

- persons engaged in certain types of activities in a state were subject to jurisdiction for claims arising from those activities

3. Venue -- place of trial

a. venue rules are an attempt to allocate business among those courts that have subject matter and personal jurisdiction

b. a suit lies open to D's challenge - unless the court has subject matter, personal jurisdiction, and venue

4. Service of Process

a. A complaint must first be drafted and filed with the court

b. Waiver of Service -- involves mailing the defendant the complaint, if D mails back a signed copy, the suit can proceed

c. Summons - if D refuses to cooperate, the lawyer will draft a summons, take it to the clerk of the court who will sign and seal it - the summons and complaint will be served/delivered to the defendant in one of the ways authorized by Rule 4 - private process servers, or a federal Marshal

C. Stating the Case

1. The Lawyer's Responsibility

a. the lawyer will draft the complaint

b. Rule 11 will govern the lawyer's actions - Rule 11(b) by presenting to the court a pleading, written motion, or other paper, an attorney is certifying that to the best of that person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances -it is not (a) harassing the other party (b) it is warranted by existing law (c) the allegations are likely to have evidentiary support (d) the denials of factual conditions are reasonably based on lack of information or belief

2. The Complaint

a. the complaint asks the form legal system to use governmental power to grant plaintiff relief

b. what needs to go into the complaint - for our case of Peters and Dodge see form 9 - complaint for negligence

3. The Response

a. Once the D has been notified of the claim the case turns to the defense of the action

1. Motion or Answer - attacking the summons and complaint in some way or a responsive pleading - Six types of responses are available to D

a. Reasons having nothing to do with the claim itself - i.e. -- subject matter jurisdiction (Gordon v Steel), personal jurisdiction, improper venue, summons was defective or improperly served [Rule 12(b) (1) -(5)], or that the P has failed to join a party whose presence is vital to the case [Rule 12(b)(7)]

b. the complaint fails to state a claim upon which relief can be granted [Rule 12(b)(6)]

c. D wants a "more definite statement" [Rule 12(e)] (Bell v Novick Transfer)

d. D has an affirmative defense: i.e. statute of limitations has run, or P has released her claim

e. Deny the allegations - if D does not know whether an allegation is true he may deny the allegation until he finds out - Rule 8(b)

f. D may want to assert his own claims - counterclaims, cross-claims, & third party claims -- Rules 13(a), (b), (g), and 14 - discussed later

2. The Rules permit the D to make the first three kinds of responses in a pre-answer motion [Rule 12(a)] -- the remaining may be made only in an answer

a. distinction matters b/c in an answer the defendant must take a position as to the truth of the P's allegations

b. in a pre-answer the D does not have to take such a position - an attractive position for the D

4. Amendment of Pleadings

a. the Federal Rule reject the position that the rules are set in stone

b. Discovery Rules would mean little if the new information could not be reflected in the amended pleadings

1. Rule 15(a) - sets forth the basic amendment rules and states that "leave to amend shall be freely given when justice so requires"

2. Rule 15(b) - deals with the amendments interposed during the course of the trial to reflect the introduction of evidence that is not within the scope of the pleadings - a variance

3. Rule 15(c) - deals with amendments that are imposed after the statute of limitations on the "new" claim has run

D. Parties to the Lawsuit

1. Permissive Joinder - Rule 20 -- who may join the suit

a. P has a choice of whom to join as a coplaintiff as well as who to join as a codefendant

b. D may claim that co-D was not properly joined - Rule 21 or that the suits should be severed - Rule 42 -- otherwise D must accept P's choice of Ds

2. Compulsory Joinder - who must join the suit

a. Brings a party into a lawsuit by order of the court, even though the opposing party may not want him there

b. Difficulty of compulsory joinder

1. the principle of autonomy - idea that parties in the lawsuit should control their own claims & litigative strategy

2. the principle that courts should seek to decide the claims of the parties now before them

3. Intervention

a. if the P does not want a party and D is unable to convince the court or does not wish to have the party joined, the absent party can still seek to come into the suit - intervention

b. Rule 24 - divides it - intervention as a matter of right & permissive intervention

c. a party has a right to intervene when a lawsuit conducted w/o him has the potential to inflict real hardship on him

4. Class Actions

a. if there is a large number of parties to the suit - a class action will allow some parties to stand for the entire group

b. Rule 23

E. Factual Development -- Discovery

1. discovery rules compel the parties & others involved to cooperate in the unearthing of factual background

2. 5 primary means of discovery

a. unless court otherwise orders the parties must reveal to each other certain basic information about the case - names of witnesses, the existence of documents, bases for damage calculations, ect. [Rule 26(a)(1)] (Rule 26 generally applies to all discovery methods)

b. oral depositions - (Rules 30, 45) - questioning a witness under oath in the absence of a judge

c. written interrogatories (Rule 33) - can only be used against a party -- written questions to be answered in writing - lawyer plays a big role - not as good as oral depositions

d. inspection of documents - (Rule 34) requesting party demands the production of "specified" documents and opposing party must produce them - under rule 34 only against a party, but under rule 45 documents can be obtained from other witness by subpoena

e. physical & mental examinations- (Rule 35) - differs form the others in that a motion first must be made to obtain the desired examination - i.e. physical exam when seeking damages for personal injury

F. Pretrial Disposition

1. the Federal Rules have adopted the device of summary judgment to provide a mechanism for deciding cases for which a trial is not necessary & would serve no purpose -- Rule 56

2. Rule 56 (f) a motion for summary judgment will be delayed if an opposing party has not been able to complete discovery

3. Rule 56(c) requires that there be "no genuine issue as to any material fact" - the court reasons that a summary judgment is not for weighing the evidence but for determining whether there is any evidence to weigh

4. Other methods of pre-trial disposition

a. default judgment - D fails to answer the complaint entirely or will fail to defend - Rule 55

b. dismissal - if P does not obey an order of the court during the proceedings, i.e. failure to comply with discovery orders, failure to prosecute the case, failure to appear, -- Rule 41(b)

c. P may seek a voluntary dismissal - would be better starting over - - Rule 41(a)

5. Two devices for streamlining the trial

a. request for admission -- Rule 36 used to seek either admission of known facts or acknowledgment of the genuineness of the documents

b. pretrial conference - Rule 16 may provide a party w/an opportunity to discuss settlement w/o giving the appearance of having initiated the conversation (- a sign of weakness)

G. Trial

1. Trial date is set, select jury - allowed a number of peremptory challenges (no reason) & a number of challenge for cause (legal reason)

2. P opening statement, then D (may wait), P case- in-chief - witnesses are examined, x-examined by D, redirect by P, re-x by D

3. D may make a motion for a judgment as a matter of law - directed verdict -- Rule 50(a) -- if all the evidence that P has offered is true, & all legitimate inferences from such evidence are made there is no right to relief - P has failed to prove a prima facie case

4. If not granted D presents case - after both parties rest

5. Either party may move for judgment as a matter of law - most often the D makes the motion

6. Arguments to the jury & jury instructions by judge - D then P for closing arguments, both sides have to listen to jury instructions, failure to object means a waiver of the right to raise the error as a grounds for appeal - Rule 51

7. Verdict

a. within 10 days the losing party can move again for a judgment as a matter of law - at this point called a judgment not withstanding the verdict -- jnov, or a new trial, or both - Rules 50(b), 59

b. losing party may also appeal

c. losing party may make a motion to set aside the judgment -- Rule 60(b) -- not the best way to correct errors - the major way is on appeal

H. Former Adjudication -- Res Judicata

1. A P who brings a case, or a D who defends one, should not be able to try again if he is not satisfied with the result

a. Claim preclusion -- res judicata: for claim preclusion to apply the claim must be the same in the first & second action

b. Issue preclusion -- collateral estoppel: a litigant is precluded (estopped)from relitigating the same issue in a second proceeding (collateral)

I. Appeals

1. Final judgment rule -- 28 U.S.C. sec 1291

a. gives the federal courts of appeals jurisdiction of appeals from all final decisions" of the federal district courts

b. the courts of appeals have no jurisdiction over appeals from judgments that are not final

c. Interlocutory orders which are not final cannot be appealed

2. Final judgment rule affects the timing of appeals

a. findings of fact should be affirmed unless "clearly erroneous"

b. rulings of law should be subject to reversal if wrong in any aspect - so long as the error affected the outcome of the lawsuit

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