Chapt03 - Chapter 3: Court Procedures Introduction American...

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Unformatted text preview: Chapter 3: Court Procedures Introduction American and English court systems follow the adversarial system of justice. q Each client is represented by an attorney although a client is allowed to represent herself (called “pro-se”). q The American Court system follows procedural rules that ensure due process. q §2: Consulting an Attorney q Generally, the first step in litigation is contacting any attorney to seek qualified legal advice. q Legal Fees (hourly vs. contingent fee). q Settlement Considerations. Procedural Law Balances 1 Fairness & & Impartiality 2 Efficient Operation (Within Adversary System) Litigation Case proceeding through court system. Rules of Procedure provide guide through the system: q Fairness q Complex & technical q Can cause loss of suit §3: Stages of Litigation q Pleadings. q Discovery. q Pre-Trial. q Trial. q Post-Trial. 1st Stage: Pleadings-Complaint q Prepare Pleadings q File Petition/Complaint.    Court acquires jurisdiction over subject matter and Plaintiff. Facts: what happened. Prayer: Court relief. Pleadings-Service q Defendant served with Complaint and Summons. q Court acquires Personal Jurisdiction over Defendant (person or corporation). q Corporate Defendants served via Registered Agent. q If the Defendant is out-of-state, Court can acquire jurisdiction by “long-arm” statutes. Motion to Dismiss Defendant can move the Court to dismiss the Action for various reasons, such as: q The Court lacks jurisdiction. q 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). q Claim is barred by Statute of Limitations q Complaint is not certain & definite Pleadings-Answer q The Answer is the Defendant’s response to the allegations stated in the Plaintiff’s Complaint. q In the Answer, the Defendant must specifically admit or deny each allegation in the Complaint. Answer-Affirmative Defense Defenses in which the defendant essentially claims that the plaintiff cannot win because there is a more powerful law on the defendant’s side that will allow the defendant to win. Answer- Affirmative Defense q Fraud is an example of an affirmative defense that might be asserted in a breach of contract case. q Burden of proof is on the Defendant to show fraud actually took place. “What better way to express your feelings about that certain someone’s suit than to slap him with a massive countersuit?” AnswerCounter 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. CounterClaim P D1 VS. D2 CrossClaim Pleadings q Motion for Judgment on Pleadings. q Motion for Summary Judgment. 2nd Stage: Discovery Discovery is the process by which parties obtain information from the opposing party prior to trial. Discovery q Automatic (1993)    Scheduled disclosures Ongoing duty to supplement or correct Compulsory meeting to discuss & develop discovery plan q Deposition q Interrogatories Discovery (continued) q Request for production of documents & things & entry upon land q Motion for order for physical or mental exam q Request for admissions The Trial q Bench Trial (no jury). q Jury Selection. q Voire Dire. q Challenges/Pick the Jury. q Impanel Jury. q Alternate Jurors. The Trial q Opening Statements. q Plaintiff’s Case--Evidence: q Witnesses- Direct examination vs. Cross X. q Party may cast doubt on the testimony or credibility of opposing witness or impeach it by showing prior inconsistent statements and/or Perjury. Redirect Examination q By party who called witness q After cross-examination q To minimize damage done on cross-exam Motion for Judgment as Matter of Law (a/k/a Directed Verdict) q At anytime after party has been fully heard q Opposing party has not presented sufficient evidence q If granted, effectively takes case away from jury The Trial q Defendant’s Case. q Closing Arguments. q Jury Instructions and Deliberations. The Trial 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. “Objection sustained!” The Trial q Verdict. q 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. q Possible burden – “clear & convincing” evidence q Judgment is the Court’s acceptance and recording of the jury’s verdict. § 5: Post Trial Motions q Once the trial is concluded, a dissatisfied party may: q File a Motion for a New Trial. q Ask that the judge enter a judgment contrary to the verdict (JNOV) rendered by the jury. Basis for Judgment N.O.V. Evidence is so clear that reasonable people could not differ as to outcome of the case. Possible Bases for New Trial q Jury was in error q Prejudicial error by judge q Newly discovered evidence q Misconduct by judge, jury, lawyer §7: Enforcing the Judgment q Once a judgment becomes final (i.e., subject to no further judicial review) the defendant is legally required to comply with its terms. q Defendants who will not voluntarily comply with a judgment can be compelled to do so by seizure and sale of the Defendant’s assets. Usual Garnishee q Employer q Bank q Obligor on accounts receivable Other Post Judgment Remedies q Contempt q Suit to have foreign judgment made executory  Under full faith & credit clause §6: The Appeal q A party may appeal the jury’s verdict or any legal issue, motion or court ruling during the trial. q 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. Bases for Appeal Errors of Law: q Erroneous Evidentiary Ruling q Erroneous Jury Instruction q Erroneous Ruling on Motion q Error of fact that is so clear, can be considered error of law Possible Outcomes of Appeal q Affirm trial court q Reverse trial court   AND Amend (change the judgment) OR Remand (send case back to trial court) ...
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This note was uploaded on 04/07/2008 for the course BUSINESS 3201 taught by Professor Danos during the Spring '08 term at LSU.

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