Procedure
Civil Civil Procedure
Study of lawsuits and
rules that govern them.
Learn how to sue
someone.
Civil Case
Criminal Case
Burden of proof beyond
a reasonable doubt.
Burden of proof
preponderance of the
evidence.
Probable Cause
1. Beyond a
reasonable doubt
2. Clear and
convincing evidence
3. Preponderance of
the evidence
4. Probable Cause
Burden of proof levels
(highest to lowest):
Judge has to think
something is wrong.
Pro se
Clear and
Convincing
Evidence
More likely true than
not.
Represent yourself;
held to the same
standard of knowledge
as an attorney; judge
wont give you a break
(neutral).
Jurisdiction
Corporation
Cant represent itself;
not a natural entity.
Authority to hear case.
Judgment
Venue
File in the right court.
What the decision of
the court (judge) is.
Damages
Adjudication
Decision made by the
court; an act.
Pay restitution.
General Verdict
Verdict
Decision made by the
jury.
One person is liable.
Pleading
Specific Verdict
One person is liable
for $100.
Paperwork that initiates
and responds to a
lawsuit.
Complaint/
Petition
Complaint/
Petition
Filed by the plaintiff
with the court and
served with a summons
on the defendant.
Sets forth the basis of
the lawsuit.
Answer
Answer
Filed by the defendant
with the court and
served on the plaintiff.
Deny or admit
allegations; usually
denies most allegations
of the complaint.
1. Complaint/
Cross-Complaint
Petition
2. Answer
3. CrossComplaint
Parts of pleadings:
Filed and served by the
defendant if he or she
countersues the
plaintiff.
Cross-Defendant
CrossComplainant
The defendant who
serves a crosscomplaint.
The plaintiff who is
served a crosscomplaint; must file
and serve a reply
(answer).
Consolidation
Intervention
A person who has an
interest in a lawsuit
may intervene and
become a party to the
lawsuit.
Separate cases against
the same defendant
arising from the same
incident may be turned
into one case by the
court if it would not
cause prejudice to the
parties.
Intervention
Cross-Complaint
Complaint arises from
the same set of facts
against the person
complaining.
A third party that arose
from the same facts,
although they werent
directly there (i.e. car
accident/ car
manufacturer).
Cause of Action
Consolidation
One judge makes a
decision for civil actions
pending with the same
parties/issues.
Basis for a case;
without it, no case.
Injunction
Damages
Liquidated,
compensatory,
punitive, etc.
To prevent immediate
harm from happening
to you (i.e. restraining
order).
Specific
Performance
Punitive Damages
Does direct correlation
to the case; smack on
the hand to punish.
Contractor-built house
backward, want
contract you asked for
performed.
Summons
1. Cause of Action
2. Damages
3. Injunction
4. Specific
Performance
Relief sought by the
plaintiff:
Given by either the
sheriff of a county or a
designated process
service.
Constructive
Service
Substitute Service
Someone in the
household can accept
the summons (over
15).
Know or should have
known about lawsuits
pending against you
(i.e. eviction notice
posted on doors).
Default Judgment
Long-Arm Statute
Summons outside of
the state of FL; must
have substantive
contact with FL for FL
to have jurisdiction (i.e.
hit by tourist or
paternity test).
Twenty days to file an
answer to a summons,
otherwise an order is
filed that they win, and
you lose.
Answer
1. Personal
Service
2. Substitute
Service
3. Constructive
Service
4. Long-Arm
Statute
5. Default
Judgment
Types of summons:
Must state defense
before filing it.
Discovery
Defenses
Jurisdiction, failure to
state a claim, etc.
The pre-trial litigation
process for discovering
facts of the case from
the other party and
witnesses.
Interrogatories
Depositions
Oral testimony given
by either a party or
witness; transcribed.
Written questions
submitted by one part
to the other party;
must be answered in a
specific period of time.
Physical and
Mental
Examinations
Production of
Document
A party to a lawsuit
These examinations of
may obtain copies of all a party are permitted
relevant documents
upon order of the court
from the other party.
where injuries are
alleged that could be
verified or disputed by
such an examination.
Violating attorney/
client privilege
and vague
questions
Discovery
Can go after anything
that you want; doesnt
have to be admissible,
but can lead to
admissible evidence.
Can ask anything you
want in depositions
except:
1. Depositions
2. Interrogatories
3. Production of
Documents
4. Physical and
Mental
Examinations
Physical third and
Mental
Examinations
A party pokes and
prods you to discover
the truth behind what
you are claiming.
Discovery consists of:
Motion for
Judgment on
the Pleadings
Motion for
Judgment on the
Pleadings
Alleges that if all facts
as pleaded are true,
the moving party would
win the lawsuit; no
facts outside the
pleadings may be
considered.
Even in the light most
favorable to the
defendant, the plaintiff
would still win.
Motion for
Judgment on
the Pleadings
and Motion for
Summary
Judgment
Motion for
Summary
Judgment
Alleges that there are
no factual disputes, so
the judge may apply
the law and decide the
case without a jury;
evidence outside the
pleadings may be
considered (i.e.
affidavits, documents,
Dismissals and pretrial
judgments:
depositions).
Settlement
Conference
Settlement
Conference
Conference prior to trial
between the parties in
front of the judge to
facilitate the
settlement of the case.
i.e. pretrial hearing.
Jury Selection
Trial
Always a gamble; cant Done through a process
guarantee youll win.
called voir dire.
Jury Selection
Voir Dire
Biased jurors are
dismissed and
replaced.
Trying to get the worst
just you can get for the
other side.
Challenge
Cause
Can strike an unlimited
number of jurors as
long as you are not
eliminating one group
(i.e. race, age, gender).
Can strike three jurors
without a reason.
Plaintiff
Opening/ Closing
Statements
Made by the parties
lawyers; are not
evidence (not arguing).
The ____ bears the
burden of proof; goes
first.
Defendant
Plaintiff
Calls witnesses and
introduces evidence to
try to prove his or her
case.
Calls witnesses and
introduces evidence to
rebut the others case
and to prove
affirmative defenses
and cross-complaints.
Jury Instructions
Rebuttal &
Rejoinder
The plaintiff and
defendant may call
additional witnesses
and introduce
additional evidence.
Judge reads instruction
to the jury as to what
law they are to apply to
the case.
Motion for
Judgment n.o.v.
Jury Deliberation
Jury retires to the jury The judge finds the jury
room and thinks until it was biased; its verdict
reaches a verdict.
does not stand.
Put themselves in
the place of the
victim
Order Remittitur
Any damages awarded
if the judge finds the
jury to have been
biased or emotional.
Golden rule for closing
argument: cant ask
jury to
Appeal
1. Enter the
verdict
2. Motion for
judgment n.o.v.
3. Order
Remittitur
During entry of
judgment, the judge
may:
Both parties in a civil
suit and the defendant
in a criminal trial may
petition the decision of
the trial court.
Res Judicata
Notice of Appeal
Must be filed within a
specified period of
time, and must be
made to the
appropriate appellate
court.
It is decided
Arbitration
Arbitration
An impartial third party
hears and decides the
dispute.
Makes an award that is
appealable to a court if
the parties have not
given up that right.
Submission
Agreement
Arbitration Clause
Agreement contained
Agreement to submit a
in a contract stipulating dispute to arbitration
that any dispute arising after the dispute arises.
out of the contract will
be arbitrated.
Alternative
Dispute
Resolution
(ADR)
Arbitration
Very informal; civil
procedure rarely used;
can make it binding.
Non-judicial means of
solving legal disputes;
usually saves time and
money of costly
litigation.
Mediation
1. Arbitration
2. Mediation
3. Conciliatio
n
4. Mini-trial
5. FactFinding
6. Judicial
Referee
Types of ADR:
A neutral third party
assists the parties in
trying to reach a
settlement of their
dispute; does not make
an award.
Conciliation
Mediation
Two parties get
together and
brainstorm; third party
doesnt make a
decision.
An interested third
party assists the
parties in trying to
reach a settlement of
their dispute; does not
make an award.
Fact-Finding
Mini-Trial
A short session in
which the lawyers for
each side present their
case to representatives
of each party who have
the authority to settle
the dispute.
The parties hire a
neutral third person to
investigate the dispute
and report his or her
findings to the
adversaries.
Judicial Referee
Judicial Referee
With the consent of the
parties, the court
appoints someone to
conduct a private trial
and render a judgment,
which stands as the
judgment of the court
and may be appealed
to the appropriate
Usually a retired judge
or lawyer.
appellate court.
1. Child abuse
2. Elder Abuse
3. Threats to
domestic security
Fact-Finding
Settle facts; cut time in
half.
What happens in ADR
is not used in trial and
remains unreported
unless: