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Civil Procedure

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Civil Procedure PSCI 2481 * * * * * * A mini-trial in advance. * * * * * * * * * * * * * * * * Actually the jury doesn t deliberate in the jury box in the courtroom. – PowerPoint PPT presentation

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Title: Civil Procedure


1
Civil Procedure
  • PSCI 2481

2
Their Legal Options?
  • What would happen if the Giant sued Jack for his
    trespass and the resulting damages? (Or should
    Jack sue the vendor of the magic beans that got
    him into trouble with the Giant? Or Jacks
    neighbors sued Jack when the beanstalk fell on
    their homes?)

3
  • Or how about if the wicked step-mother could sue
    Cinderella for damages to her daughters chances
    with the Prince?

4
  • Or if the first two pigs could sue the wolf for
    the damages he does to their homes?

5
An Evolving Lawsuit
Grievance
Claim
Dispute
Lawsuit
6
Civil Litigation Research Project
  • 40 of Americans have had a significant grievance
    (1000) in the last 3 years.
  • 25 of these people hired an attorney
  • 11 filed legal papers
  • 1 went to trial

7
What Types of Problems to People Bring to Lawyers?
  • Execute a will 79
  • Obtain Divorce 77
  • Buy Property 40
  • Personal Injury 39
  • Difficulty w Govt. Agency 12
  • Consumer Problem 10
  • Violation of Constitutional Rights 10
  • Property Damage 5

8
Whats the alternative?
  • Accept a small loss
  • Leave to scene of your troubles
  • Engage in private negotiation/compromise
  • Harass or commit violence

9
Examples
  • Friendswood Exxon truck repairs
  • Boulder dentist bad crown
  • Katy apartment complex - leaks
  • Safeway/Perrier facial injury
  • Value of the attorney assessment of value of
    the claim as a legal issue.

10
Going to Court
  • Most people dont get there but if you do
  • Most people need an attorney to handle
  • Procedures
  • Official Language
  • Interpretations of Law
  • (It is possible to go pro se as your own
    attorney but it is difficult)
  • Indigents may qualify for legal assistance.
    (Guaranteed in criminal cases, not in civil.)

11
Costs of Going to Court
  • (for lawyers, filing fees and court costs)
  • Psychological costs (stress, anger, fear)
  • Time and energy

12
Finding an Attorney
  • Word of Mouth
  • Yellow pages
  • Internet
  • Local Bar/Legal Services
  • Lawyer Referral
  • Company or Union Legal Plan

13
First Steps
  • An initial consultation
  • Negotiation of fees
  • Retainer
  • Flat rate
  • Hourly rate
  • Contingency fee

14
Deciding to File a Lawsuit
  • Are there facts or data available to support the
    claim? (Can the facts be proven?)
  • Does the client have a cause of action?
  • Is the case being filed within time limits?
  • Can the defense arguments be rebutted?
  • Is this financially worthwhile?
  • for the client?
  • For the attorney?
  • If the answer to all of these questions is
    YES, then legal action can be worth pursuing.

15
Other Key Issues
  • Justiciable
  • Is there a case or controversy?
  • Is the dispute moot? Is it ripe?
  • Does the case raise political questions?
  • Standing
  • Do the parties have standing?
  • Is the defendant the proper person?
  • Jurisdiction?
  • Federal or state case?
  • Proper venue?
  • Statute of limitations?

16
Starting the Lawsuit
  • Plaintiffs Attorney
  • Prepares the complaint
  • Delivers the complaint to the Courthouse
  • Clerk of the Court
  • Files Complaint
  • Assigns a docket number and judge
  • Issues summons and returns summons to the
    plaintiffs attorney
  • Plaintiffs Attorney
  • Delivers summons and complaint to defendant, or
    gives the summons complaint to a marshall,
    sheriff or process server to be delivered to the
    defendant.
  • A signed copy of the summons must be returned to
    the courthouse to indicate the defendants
    receipt of the complaint.

17
Wyle E. Coyote vs. ACME
18
Deciding to Respond to a Lawsuit
  • Questions
  • Am I legally liable?
  • Have I fulfilled my legal liability? (e.g., paid
    worker compensation to an injured employee)
  • Do I have any continuing moral or social
    obligations to the plaintiff?
  • What is the probability of successful litigation?
  • Is it economically more reasonable to concede
    than to fight this lawsuit?

19
Responding to the Complaint
  • Do Nothing
  • File Motions (prior to answering the complaint)
  • File a motion requesting dismissal of the
    complaint (e.g., venue, jurisdiction, timeliness)
  • File a motion requesting that the court order an
    amendment to the complaint
  • more definitive statement (need information)
  • to strike (remove scandalous material from
    documents)
  • File an Answer
  • Admit to the allegations in the complaint
  • Deny the allegations in the complaint
  • Assert defenses to the allegations in the
    complaint
  • Admit to insufficient knowledge to form any
    opinion about the complaint
  • Countersue!

20
ACME Responds
21
Summary I
  • Grievance
  • Claim
  • Dispute
  • (attempt settlement)
  • Complaint
  • (attempt settlement)
  • Answer
  • The PLEADINGS are now complete.

22
The Pre-Trial Phase
23
Discovery
  • Do I need additional information to continue
    participating in this lawsuit?
  • Is information available?
  • Is it relevant?
  • Is it protected?
  • Is it necessary to prove my case?
  • Is it unavailable without the use of discovery
    tools?
  • In other words Who has information? Where is
    it? How can I get access to it?

24
Discovery Tools
  • Depositions
  • Written Depositions
  • Interrogatories
  • Production of Documents
  • Access to Premises
  • Written Request for Admission
  • Physical and/or Mental Examinations

25
The Deposition
  • Notice sent to all parties
  • Subpoenas issued. Orders to 3rd parties requiring
    them to appear.
  • Examination (Questioning) of person with
    information
  • Transcription by court reporter
  • Signed by witness
  • Used to contradict testimony at trial
  • Used in case of absence, illness, or death

26
The Purpose of Discovery
  • Acquire Information (so as not to be blindsided
    at trial and to stimulate settlement)
  • Narrowing of the issues
  • Stipulate (Agree on) facts prior to trial so that
    they dont have to be disputed in the courtroom.

27
Summary II
  • Pleadings Complete
  • (settlement attempted)
  • Discovery
  • (settlement attempted)
  • Motion for Summary Judgment
  • (settlement attempted)
  • Pre-trial Memorandum
  • (settlement attempted)
  • Conference with Judge
  • (settlement attempted)
  • Pre-Trial Order
  • (settlement attempted)
  • Placement on Trial List (Calendaring)
  • (settlement attempted)
  • Called for Trial

28
The Pre-Trial Order
  • Contentions of both parties
  • Statement of stipulated facts
  • Issues remaining Facts in dispute
  • Issues remaining Legal issues in dispute
  • List of exhibits
  • List of witnesses
  • Estimated trial length
  • Ready for Trial certification

29
How far do small civil lawsuits go in Colorado?
  • Default Judgment 30
  • Summary Judgment 3
  • Dismissed by Court 5
  • (Failure to Prosecute)
  • Bankruptcy 5
  • Settlement 45
  • Trial 5
  • In Progress 7
  • (more than 2 years)

30
The TRIAL
31
The Basic Structure of a Trial
  • Jury Selection (optional)
  • Plaintiffs Opening Statement
  • Roadmap to the case
  • What the Plaintiff hopes to prove
  • Defendants Opening Statement (optional at this
    time)
  • Alternative roadmap
  • What the Defendant hopes to prove

32
Jury Selection
  • Voter Lists
  • Jury Array Established
  • Notification to Report for Duty
  • Jury Panel Sent to Courtroom
  • Voir Dire (Examination of jurors)
  • Removal on challenge for cause
  • Removal on peremptory challenge
  • Petit Jury Selected

33
What are the legal qualifications for jury
service (in Colorado)?
  • You must be 18 years of age or older.
  • You must live in the county or municipality that
    summoned you.
  • You must be a United States citizen.
  • You must read, speak, and understand English.
  • You must not have served on a jury for five or
    more days in the past 12 months.

34
  • You must not be solely responsible for the daily
    care of a permanently disabled person living in
    your home.
  • You must not have a physical or mental disability
    that would prevent your ability to serve as a
    juror.
  • If you do not qualify to serve because of any of
    the reasons listed above, you should discuss your
    situation with the jury commissioner. You may be
    required to provide written proof of
    disqualification. By law, there are no economic,
    age-related, or occupational exclusions from jury
    service.

35
The Basic Structure of a Trial
  • Plaintiffs Case
  • Examination ( Cross-examination) of Witnesses
  • Presentation of Physical Evidence
  • Conclusion
  • Motion for Non-suit
  • Motion for Directed Verdict

36
Examining a Witness
  • Direct Examination (testimony of presumptively
    favorable witness)
  • Cross-Examination (questioning of the witness by
    the opposition)
  • Re-Direct (further questions by attorney to
    resurrect favorable witness if necessary)
  • Re-Cross (further questions by opposition to
    damage witness after redirect)

37
The Basic Structure of a Trial
  • Defendants Case
  • Examination ( Cross-examination) of Witnesses
  • Presentation of physical evidence
  • Conclusion
  • Motion for Directed Verdict

38
The Basic Structure of a Trial
  • Defendants Closing Argument
  • Plaintiffs Closing Argument
  • Judges Instructions to the Jury

39
The Judge Instructs the Jury
  • On procedure
  • Presumption of innocence (criminal only)
  • Determination of facts
  • Admissibility of evidence
  • Credibility of witnesses
  • Reasonable inference from facts and testimony
  • Standard of proof

40
The Judge Instructs the Jury II
  • The Verdict
  • Special vs. General Verdict
  • Identity,
  • mental state,
  • actions
  • circumstances

41
The Basic Structure of a Trial Jury Deliberation
42
The Verdict
43
Wait! Its not over yet.
  • Legal Manuvers
  • Motion for Judgment N.O.V
  • Motion for a New Trial

44
The Final Word
  • Judgment
  • To the loser goes the court costs.
  • The court will enforce the jurys decision if
    the jury determines an award is appropriate.
    This could be monetary (1 to 100,000,000,000)
    or non-monetary (e.g. Brittany loses custody of
    her children).

45
Fight versus Truth?
  • What do you think? Is this a good way to run a
    trial?
  • Should it be adversarial with lawyers on both
    sides? Or should we set aside all this fighting
    and maneuvering to let the judge run the
    investigation?
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