Chapter 3

The Defendant's Response

Typically, the defendant's response to the complaint takes the form of an answer. In an answer, the defendant either admits or denies each of the allegations in the plaintiff's complaint and may also set forth defenses to those allegations. Under the federal rules, any allegations that are not denied by the defendant will be deemed by the court to have been admitted.

Requests for Documents, Objects, and Entry upon the Land

a party can gain access to documents and other items not in her or his possession in order to inspect and examine them

Expert Witness

a person, who, by virtue of education, training, skill, or experience, has scientific, technical, or other specialized knowledge in a particular area beyond that of an average person.

Pretrial Conference

a pretrial hearing, at the request of either party or the court, to identify the matters in dispute after discovery has taken pace and to explore the possibility of settling the dispute without a trial. If no settlement is possible, the parties plan the course of the trial.

Motion

a procedural request submitted to the court by an attorney on behalf of her or his client. When a motion is filed with the court, the filing party must also send to, or personally serve, the opposing party a notice of motion. The notice of motion informs the opposing party that the motion has been filed.

Federal Rules of Civil Procedure (FRCP)

all civil trials held in federal district courts are governed by (FRCP)

Appellate Review

an appellate court has the following options after reviewing a case: 1. The court can affirm the trial court's decision. Most decisions are affirmed 2. The court can revers the trial court's judgment if it concludes that the trial court erred or that the jury did not receive proper instructions 3. The appellate court can remand (send back) the case to the trial court for further proceedings consistent with its opinion on the matter. 4. The court might also affirm or reverse a decision in part. 5. An appellate court can also modify a lower court's decision. If the appellate court decides that the jury awarded an excessive amount in damages.

Motion to dismiss

any party can file this, asking the court to dismiss the case for the reasons stated in the motion. Normally, it is the defendant who requests dismissal. A defendant can file a motion to dismiss if the plaintiff's complaint fails to state a claim for which relief (a remedy) can be granted. Such a motion asserts that even if the facts alleged in the complaint are true, they do not give rise to any legal claim against the defendant.

Motion for Summary Judgement

asks the court to grant a judgment in that party's favor without a trial. The motion can be made before or during the trial. To support a motion for summary judgment, a party can submit evidence obtained at any point before the trial that refutes the other party's factual claim. The evidence may consist of affidavits (sworn statements by parties or witnesses) or copies of documents, such as contracts, emails, and letters obtained through the course of discovery. The evidence must be admissible evidence (evidence that the court would allow to be presented during the trial.

Discovery Rules

attempts to protect witnesses and parties from undue harassment, and to safeguard privileged or confidential material from being disclosed. Only information that is relevant to the case at hand-or likely to lead to the discovery of relevant information-is discoverable.

Direct examination

calling the first witness for the plaintiff and examining, or questioning the witness. The types of questions and the manner of asking them are governed by the rules of evidence

Impeach

depositions can be employed in court to impeach (challenge the credibility of) a party or a witness who changes his or her testimony at the trial.

Evidence Must be Relevant to the Issues

evidence that tends to prove or disprove a fact in question or to establish the degree of probability of a fact or action.

Litigation Process

has three phases: pretrial, trial, and postrial

Higher Appellate Courts

if the reviewing court is an intermediate appellate court, the losing party may decide to appeal the decision to the state's highest court, usually called its supreme court.

Pretrial Motions

include the motion to dismiss, the motion for judgment on the pleadings, and the motion for summary judgment.

Pretrial Litigation Process

involves the filing of the pleadings, the gathering of evidence (called discovery) and possibly other procedures, such as pretrial conference and jury selection

the brief

is a formal legal document outlining the facts and issues of the case, the judge's rulings or the jury's finding that should be reversed or modified, the applicable law, and arguments on the appellant's behalf. The attorney for the appellee usually files an answering brief

Procedural Rules

provide a framework for every dispute and specify what must be done at each stage of the litigation process Rules of procedure often affect the outcome of a dispute-a fact that highlights the importance of obtaining the advice of counsel

Deposition

sworn testimony by a party to the lawsuit or by any witness, recorded by an authorized court official. The person deposed gives testimony and answers questions asked by the attorneys from both sides. The questions and answers are recorded, sworn to, and signed. It allows attorneys the opportunity to ask immediate follow-up questions and to evaluate how their witnesses will conduct themselves at trial. A deposition can also be used as testimony if the witness is not available at trial

Pleadings

the complaint and answer taken together. The pleadings inform each party of the other's claims and specify the issues involved in the case.

Complaint

the complaint contains a statement alleging 1. the facts showing that the court has subject matter and personal jurisdiction 2. The facts establishing the plaintiff's basis for relief 3. The remedy the plaintiff is seeking. Complaints can be lengthy or brief depending on the complexity of the case and the rules of the jurisdiction

Consulting with an Attorney

the first step taken by almost anyone contemplating a lawsuit is to seek the guidance of a qualified attorney

Cross examination

the witness is subject to this.

Method of service

usually the server hands the summons and complaint to the defendant personally or leaves it at the defendant's residence or place of business. In some states, process can be served by mail if the defendant consents (accepts service). In cases involving corporate defendants, the summons and complaint may be served on an officer or on a registered agent (representative) of the corporation.

Requests for examinations

when the physical or mental condition of one party is in question, the opposing party can ask the court to order a physical or mental examination by an independent examiner. If the court agrees to make the order, the opposing party can obtain the results of the examination. The court will make such an order only when the need for the information outweighs the right to privacy of the person to be examined

Rules of Evidence

whether evidence will be admitted in court is determined by the rules of evidence. These are a series of rules that the courts have created to ensure that any evidence presented during a trial is fair and reliable.

Interrogatories

written questions for which written answers are prepared and then signed under oath. Interrogatories are directed to a party to the lawsuit (the plaintiff or the defendant), not to a witness.

Stages in a typical lawsuit

-accident, breach of contract or other event -party consults with attorney -informal investigation -plaintiff's attorney files complaint -defendant notified of lawsuit -defendant's attorney files answer to complaint or motion to dismiss -motion for judgement on the pleadings -discovery -motion for summary judgment -further discovery -pretrial conference -trial -posttrial motions -appeal -steps to enforce and collect judgment

Types of attorney's fees

-fixed fees may be charged for the performance of such services as drafting a simple will -hourly fees may be charged for matters that will involve an indeterminate period of time. The amount of time required to bring a case to trial, for instance, probably cannot be precisely estimated in advance -contingency fees are fixed fees as a percentage (usually between 25 and 40 percent) of a client's recovery in certain types of lawsuits, such as a personal injury lawsuit. If the lawsuit is unsuccessful, the attorney receives no fee, but the client will have to reimburse the attorney for all out-of-pocket costs incurred.

Affirmative Defense

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Counterclaims

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Redirect examination and Redirect cross examination

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Closing Argument

After both sides have rested their cases. Each attorney summarizes the facts and evidence presented during the trial and indicates why the facts and evidence support his or her client's claim

Opening Statements

At the beginning of the trial, both attorneys are allowed to make opening statements setting forth the facts that they expect to prove during the trial.

Potential Motion and Judgment

At the conclusion of the plaintiff's case, the defendant's attorney may ask the judge to direct a verdict for the defendant on the ground that the plaintiff has presented no evidence to support her or his claim. This is called motion for a judgment as a matter of law or a motion for a directed verdict in state courts. The judge looks at the evidence in the light most favorable to the plaintiff and grants the motion only if there is insufficient evidence to raise an issue of fact.

Motion for a new Trial

At the end of the trial, the losing party may make a motion to set aside the adverse verdict and any judgment and to hold a new trial. After looking at all the evidence the judge will grant this only if she or he believes that the jury was in error and that it is not appropriate to grant judgment for the other side.

Service of Process

Before the court can exercise personal jurisdiction over the defendant, in effect before the lawsuit can begin, the court must have proof that the defendant was notified of the law-suit. Formally notifying the defendant of a lawsuit is called service of process.

Electronic discovery

E-evidence, consists of all computer generated or electronically recorded information.

The Appeal

Either party may appeal not only the jury's verdict but also the judge's ruling on any pretrial or posttrial motion. When deciding to appeal the verdict, his attorney must file a notice of appeal with the clerk of the trial court within a prescribed period of time. He then becomes the appellant or petitioner. The clerk of trial court sends to the reviewing court the record on appeal.

Hearsay Evidence Not Admissible

Generally, hearsay is not admissible as evidence. Hearsay is testimony someone gives in court about a statement made by someone else who was not under oath at the time of the statement.

A writ of execution

If the defendant does not have the funds available to pay the judgment, the plaintiff can go back to the court and request that the court issue a writ of execution. It is an order directing the sheriff to seize and sell the defendant's nonexempt assets, or property (certain assets are exempted by law from creditors' actions)

Jury selection

In a jury trial, the selection of members of the jury from a pool of prospective jurors. During a process known as voire dire, the attorneys for both sides may challenge prospective jurors either for cause or peremptorily (for no cause).

Waiver of Formal Service of Process

In many instances, the defendant is already aware that a lawsuit is being filed and is willing to waive (give up) her or his right to be served personally. Under the FRCP, defendants who agree to waive formal service of process receive additional time to respond to the complaint.

Motion for Judgment NOV

NOV from the Latin non obstante verdict, meaning "not withstanding the verdict" Such a motion will be granted only if the jury's verdict was unreasonable and erroneous. If the judge grants the motion, then the jury's verdict will be set aside, and a judgment will be enter in favor of the opposing party

Verdict

Once the jury has reached a decision, it issues a verdict in favor of one party. The verdict specifies the jury's factual findings. In some cases, the jury also decides on the amount of the award. The compensation to be paid to the prevailing party.

Requests for admission

One party can serve the other party with a written request for an admission of the truth of matters relating to the trial. Any fact admitted under such a request is conclusively established as true of the trial.

Defendant's evidence

Rebuttal: After the defendant's attorney has finished introducing evidence, the plaintiff's attorney can present a rebuttal by offering additional evidence that refutes the defendant's case. The defendant's attorney can, in turn, refute that evidence in a rejoinder

Summons

The plaintiff must deliver, or serve, a copy of the complaint and a summons (a notice requiring the defendant to appear in court and answer the complaint) to the defendant. It notifies the defendant that he must file an answer to the complaint within a specified time period or suffer a default judgment against him

Discovery

The process of obtaining information from the opposing party or from witnesses prior to trial. Discovery included gaining access to witnesses, documents, records, and other types of evidence. Discovery prevents surprises at trial by giving both parties access to evidence that might otherwise be hidden. This allows the litigants to learn as much as they can about what to expect at a trial before they reach the courtroom. Discovery also serves to narrow the issues so that trial time is spent on the main questions in the case. A court can impose sanctions on a party who fails to respond to discover requests

The Right to a Jury Trial

The right to a trial by jury need not be exercised, and many cases are tried without a jury. One of the parties must request a jury, or the judge presumes the parties waive this right. If there is no jury, the judge determines the truth of the facts alleged in the case

Motion for Judgment on the Pleadings

This motion asks the court to decide the issue solely on the pleadings without proceeding to trial. The judge will grant the motion only when there is no dispute over the facts of the case and the sole issue to be resolved is a question of law.