Chapter 3: Court Procedures Business Law Text and Cases The First Course Fourteenth Edition Miller Chapter 3: Court Procedures

§1: Procedural Rules (1 of 4) Stages of Litigation: Pretrial. Trial. Posttrial.

Procedural Rules (2 of 4)

Procedural Rules (3 of 4) Hire an Attorney: An attorney may charge one or more of the following fees for service. Fixed Fee. Hourly Fee. Contingency Fee.

Procedural Rules (4 of 4) Settlement Considerations: The amount of resources an attorney will spend on a given case is affected by: The time and funds of the client. The defendant’s ability to pay the damages sought.

§ 2: Pretrial Procedures (1 of 34) Pretrial litigation process consists of filing the pleadings, gathering of evidence (called discovery), and completing other procedures such as jury selection.

Pretrial Procedures (2 of 34) 1st 2nd 3rd 4th Pleadings // Discovery // Conference // Jury

Pretrial Procedures (3 of 34) The Pleadings: Formal statements made by the plaintiff and the defendant in a lawsuit that detail the facts, allegations, and defenses involved in the litigation.

Pretrial Procedures (4 of 34) The plaintiff’s complaint contains statements or allegations concerning the following: Jurisdiction. Legal theory.   Remedy.

Pretrial Procedures (5 of 34) The defendant must be formally notified of the lawsuit (service of process). The plaintiff must deliver—or serve—a copy of the complaint and a summons to the defendant.

Pretrial Procedures (6 of 34)

Pretrial Procedures (7 of 34) A court may not exercise jurisdiction over a defendant until it has proof that the defendant was properly served. If the defendant does not answer within the time allotted by the applicable rules, the plaintiff may seek a default judgment.

Pretrial Procedures (8 of 34) Service of Process: Plaintiff serves defendant with complaint and summons. Default judgment for plaintiff, if defendant does not answer.

Pretrial Procedures (9 of 34) Acceptable Means of Service of Process: An individual defendant may be served at his residence or his principal place of business. A corporate defendant may be served by serving an officer or registered agent, designated for the purpose of receiving service. A partnership defendant may be served by serving any (general) partner.

Pretrial Procedures (10 of 34) The Federal Rules of Civil Procedure permit—and even encourage—waiving formal service of process.

Pretrial Procedures (11 of 34) The answer is the defendant’s response to the allegations stated in the plaintiff’s complaint. In the answer, the defendant must specifically admit or deny each allegation in the complaint. 5

Pretrial Procedures (12 of 34) Defendant’s Response: Affirmative Defense: Burden is on defendant to introduce proof. Counterclaims: Defendant sues plaintiff, and the plaintiff answers by filing a reply. 5

Pretrial Procedures (13 of 34) Dismissals and Judgments before Trial: Motion: A procedural request submitted to the court by an attorney on behalf of her or his client. Pretrial motions include the motion to dismiss, the motion for judgment on the pleadings, and the motion for summary judgment. 5

Pretrial Procedures (14 of 34) Motion to Dismiss: A motion (normally filed by the defendant) that asks the court to dismiss the case for a specified reason, such as lack of personal jurisdiction or failure to state a claim. 5

Pretrial Procedures (15 of 34) Motion for Judgment on the Pleadings: A motion by either party asking the court to enter judgment in his or her favor based on the pleadings because there are no facts in dispute. 5

Pretrial Procedures (16 of 34) Motion for Summary Judgment: A motion asking the court to enter a judgment in his or her favor without a trial. Case Analysis 3.1 Espresso Disposition Corp. 1 v. Santana Sales & Marketing Group, Inc. (2013). 5

Pretrial Procedures (17 of 34)

Pretrial Procedures (18 of 34) 1st 2nd 3rd 4th Pleadings // Discovery // Conference // Jury

Pretrial Procedures (19 of 34) Discovery: The process of obtaining information from the opposing party or from witnesses prior to trial. Discovery Rules: Generally, discovery is allowed regarding any matter that is relevant to the claim or defense of any party. Case 3.3 BROTHERS v. WINSTEAD (2014). 5

Pretrial Procedures (20 of 34) Discovery can involve: Depositions. Interrogatories. Requests for Admission. Requests for Documents, Objects, or Entry. Requests for Examination. 5

Pretrial Procedures (21 of 34) Depositions: Sworn testimony, recorded by a court reporter and often by videotape, of the parties and other key witnesses.

Pretrial Procedures (22 of 34) Interrogatories: Written questions related to the subject matter of the lawsuit that must be answered under oath. 

Pretrial Procedures (23 of 34) Requests for Admission: Questions to the responding party phrased in an “admit” or “deny” format.

Pretrial Procedures (24 of 34) Requests for Documents, Objects, and Entry Upon Land. Requests for Examination.

Pretrial Procedures (25 of 34) Electronic Discovery: The federal rules and most state rules now allow for the parties to obtain electronic “data compilations.”

Pretrial Procedures (26 of 34) Electronic evidence (or e-evidence) consists of all computer-generated or electronically recorded information including: E-mail, voice mail, tweets, social media posts, documents, and other data stored electronically.

Pretrial Procedures (27 of 34) Computers, smartphones, and other devices automatically record metadata, or certain information about files such as: Who created them and when. Who accessed, modified, or transmitted them.

Pretrial Procedures (28 of 34) 1st 2nd 3rd 4th Pleadings // Discovery // Conference // Jury

Pretrial Procedures (29 of 34) Pretrial Conference: A court will typically schedule one or more conferences (or hearings) before trial to resolve procedural matters and to narrow the issues for trial.

Pretrial Procedures (30 of 34) 1st 2nd 3rd 4th Pleadings // Discovery // Conference // Jury

Pretrial Procedures (31 of 34) The right to a jury trial is guaranteed by the Seventh Amendment to the U.S. Constitution. In many state and federal courts, one of the parties must request a jury. Most cases are tried without juries.

Pretrial Procedures (32 of 34) A trial without a jury is called a bench trial and the trial judge decides all questions of fact and of law. In a jury trial, the judge decides questions of law, but the jury decides all questions of fact (including the amount of damages due the plaintiff).

Pretrial Procedures (33 of 34) Jury Selection (“Voir Dire”): Most civil trials are heard by six-person juries. In most jurisdictions, attorneys for the plaintiff and defendant question prospective jurors to determine bias or connection with a party in the case.

Pretrial Procedures (34 of 34) Jury Selection (con’t): Jurors can be dismissed peremptorily (no reason) or for cause (bias). Prospective jurors cannot be excluded by the use of discriminatory challenges such as those based on racial criteria or gender.

§3: The Trial (1 of 12) Opening statements are given by both attorneys to set forth the facts that they expect to prove during the trial. Rules of evidence are those created by the court to ensure that any evidence presented during a trial is fair and reliable.

The Trial (2 of 12) Relevant evidence proves or disproves a fact in question or to establish the degree of probability of a fact or action. Hearsay is testimony given in court about a statement made by someone else who was not under oath at the time of the statement.

The Trial (3 of 12) Examination of Witnesses: The attorneys question each witness as follows: Direct examination. Cross-examination. Redirect examination and recross-examination.

The Trial (4 of 12) The attorney for the party who called the witness does a direct examination. The witness is then cross-examined by the attorney for the opposing party. Redirect examinations and recross-examinations provide opportunities for the attorneys to question witnesses.

The Trial (5 of 12) Expert Witnesses: The plaintiff and the defendant may present testimony from expert witnesses (people who have specialized knowledge due to their education, training, skill, or experience).

The Trial (6 of 12) Motion for Judgment as a Matter of Law/Directed Verdict: A motion for the judge to take the decision out of the jury’s hands and direct a verdict for defendant because the plaintiff has presented no evidence to support his/her claim.

The Trial (7 of 12) Defendant’s Evidence: The defendant’s attorney presents the evidence and witnesses for the defendant’s case. Witnesses are called and examined by the defendant’s attorney and then cross-examined by the plaintiff’s attorney.

The Trial (8 of 12) After the evidence has been introduced, the plaintiff’s attorney can present a rebuttal by offering additional evidence that refutes the defendant’s case. The defendant’s attorney can refute that evidence in a rejoinder.

The Trial (9 of 12) Closing Arguments: After both sides present their cases, the attorneys make their closing arguments by summarizing the facts and evidence and telling their client’s story in the most compelling way possible. Closing arguments are presented even if the trial was not heard by a jury.

The Trial (10 of 12) Jury Instructions: After closing arguments are completed, the judge provides instructions (charges) to the jury on the law that applies to the case as well as the standard of proof.

The Trial (11 of 12) Jury Instructions: The standard of proof in most civil cases is a preponderance of the evidence (the plaintiff only needs to show that her factual claim is more likely to be true than the defendant’s). The standard of proof in a criminal trial is higher because the prosecution must prove its case beyond a reasonable doubt.

The Trial (12 of 12) Verdict: After deliberation, the jury delivers its findings (verdict). The verdict specifies the jury’s findings and liability. Jury can award money damages in a civil case—or prison in a criminal case.

§4: Posttrial Motions (1 of 3) After the jury reaches a verdict, either party can make a posttrial motion that asks the trial court to alter or disregard the jury’s verdict or to order a new trial. 

Posttrial Motions (2 of 3) Motion for New Trial: A motion asserting that the trial was so fundamentally flawed that a new one is required. The reasons for this motion include: Error by the trial judge. Newly discovered evidence. Prejudice.

Posttrial Motions (3 of 3) Motion for Judgment N.O.V. (“non obstante veredicto”): A motion asking the court to enter judgment as a matter of law in the defendant’s favor, despite the jury’s verdict—as a matter of fact—in the plaintiff’s favor.

§5: The Appeal (1 of 3) A party may appeal the jury’s verdict or any legal issue, motion, or court ruling during the trial. Appellants must have legitimate grounds for appeal (usually legal error).

The Appeal (2 of 3) Filing the Appeal: Documentation varies by court but usually includes: A notice of appeal. A record (or transcript) of the pleadings, motions, hearings, the judgment, and any other ruling. Briefs outlining the legal arguments for reversing the judgment (appellant) and for letting the judgment stand (appellee).

The Appeal (3 of 3) Once the court has reviewed the case, it issues a written opinion that affirms the trial court’s judgment; reverses part or all of the judgment and remands the case for an additional trial; reverses part or all of the judgment and renders a new ruling without another trial; or modifies the lower court’s decision.

§6: Enforcing the Judgment No guarantees that a judgment will be enforceable. Writ of Execution: Directs sheriff to seize defendant’s non-exempt property and sell it to pay for judgment. A plaintiff and his/her attorney usually consider whether the defendant has sufficient assets before the suit is filed.