Chapter 3 - Court Procedures PDF

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Chapter 3 - Court Procedures

Court procedures – All civil trials held in federal district courts are governed by the Federal Rules of Civil Procedure (FRCP) Stages of Litigation Seek the guidance of an attorney  Types of attorney’s fees ▪ Fixed fees – Charged fir the performance of such services (Ex. Drafting a will) ▪ Hourly fees – Involve an indeterminate amount of time ▪ Contingency fees – fixed as percentage of a client’s recovery in certain types of lawsuit (Unsuccessful lawsuit, no fee) Pretrial Procedures  Proceedings – Inform each party of the of the other’s claims and specify issues involves in the case.  Complaint – Contains the fact showing the court has subject matter & personal jurisdiction, facts establishing plaintiff’s basis for relief, and remedy the plaintiff is seeking  Service of process – Formally notifying the defendant of a lawsuit ▪ Summons – A notice requiring the defendant to appear in court and answer the complaint. ▪ Default judgement – Plaintiff would be awarded to the complaint either admits or denies each of the allegations and sets forth defenses. Defendant’s Response  Answer – Defendant’s response to the complaint either admits or denies each of the allegations and sets forth defenses.  Affirmative defense – admit the truth of the case however raise new facts to prove defendant is not liable for damages  Counterclaims – Defendant denies plaintiff’s allegations and set forth his own claim against the plaintiff Dismissal and Judgements before Trial  Motion – Procedural request submitted to the court by an attorney on behalf of his client to get cases dismissed. (submitted to opposing party)

 Motion to dismiss – Asking the court to dismiss the case for the reasons stated in the motion.  Motion for judgment on the pleadings – Asks the court to make a decision solely based on the pleadings before proceeding to trial.  Motion for summary judgement – Grant a judgement in that party’s favor without a trial  Affidavits – Sworn statements by parties or witnesses, copies of documents, obtained through course of discovery that refute factual claim. Discovery  Process of obtaining information from the opposing party or from witnesses prior to trial.  Prevents surprises at trial by both parties access to evidence that might otherwise be hidden.  Deposition – Sworn testimony by a party or by any witness, recorded by an authorized court official. (Can be employed to impeach, challenge credibility of a party or witness who changes his testimony at the trial.  Interrogatories – Written questions for which answers are prepared and then signed under oath. Requests for admissions, documents, examinations, etc.  Requests for admissions – Allows party to agree on particular facts so that they may spend less time in trial disproving them  Request for examination – allowed physical or mental examination by an independent examiner, reducing false information or medical report.  E-evidence – Al computer-generated or electronically recorded information such as email, voicemail, social media posts. Pretrial conference  Attorneys may beet with trial judge in a pretrial conference Right to jury trial  Seventh amendment to the US Constitution guarantees the right to a jury trial for cases at law in federal courts when the amount in controversy exceeds $20  Voir dire - Jury selection process Opening statements  Setting forth the facts that they expect to prove during the trial

 Then, plaintiff’s case is presented Rules of Evidence  Series of rules that the courts have created to ensure that any evidence presented during a trial is fair and reliable  Relevant evidence – Tends to prove or disprove a fact in question or to establish the degree of probability of a fact or action.  Hearsay – Testimony someone gives in court about a statement made by someone else who was not under oath at the time of the statement. Examination of Witnesses and Potential Motions  Direct examination – The first witness for the plaintiff gets examined or questions  Cross examination – The same witness gets examined by the defendant’s attorney Possible Motion and Judgment  Motion for judgement as a matter of law (Motion for directed verdict) – 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 his claim Defendant’s Evidence  After 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. Verdict  Once the jury has reached a decision, it issues a verdict in favor of one party Motion for a New Trial  After looking at all the evidence, judge can make this decision if he believes that the jury was in error and that it is not appropriate to grant judgement for the other side.  Usually due to a misapplication of the law or misunderstanding of evidence Motion for Judgement N.O.V.

 Meaning “ not standing with the verdict” if the jury’s verdict was unreasonable or erroneous The Appeal  Notice of appeal – Must be filed with the clerk of the trial court within a prescribed period of time.  Appellant or petitioner brings the appeal  The clerk of the trial court brings to the reviewing, the record on appeal. This involves pleading, motions, written transcripts, testimony, argument, jury instructions  Appellate brief – Formal legal document outlining the facts and issues of the case, the judge’s ruling or jury’s findings that should be reversed or modified, the appliable law, and arguments on appellant’s behalf.  The attorney for the appellee usually files an answering brief. Writ of Execution  Order directing the sheriff to seize and sell the defendant’s nonexempt

assets or property that are then used to pay the damages owed. Any excess proceeds are returned to the defendant....