PA 106 – Unit 2

2 State and Federal Courts

3 Trial Courts “Courts of record”-court reporters. “Courts of record”-court reporters. Opening and closing arguments. Opening and closing arguments. Juries are selected. Juries are selected. Evidence, such as witness testimony, physical objects, documents, and pictures, is introduced. Evidence, such as witness testimony, physical objects, documents, and pictures, is introduced. Witnesses are examined and cross-examined. Witnesses are examined and cross-examined. Verdicts and Judgments are rendered. Verdicts and Judgments are rendered.

4 Appellate Courts Middle level of the court systems. Middle level of the court systems. Review proceedings conducted in the trial court to determine whether the trial was according to the procedural and substantive rules of law. Review proceedings conducted in the trial court to determine whether the trial was according to the procedural and substantive rules of law. Generally, appellate courts will consider questions of law, but not questions of fact. Generally, appellate courts will consider questions of law, but not questions of fact.

5 Supreme Courts Also known as courts of last resort. Also known as courts of last resort. The two most fundamental ways to have your case heard in a supreme court are: The two most fundamental ways to have your case heard in a supreme court are: Appeals of Right. Appeals of Right. By Writ of Certiorari. By Writ of Certiorari. See the U.S. Supreme Court and the Texas Supreme Court websites. See the U.S. Supreme Court and the Texas Supreme Court websites.

6 Alternative Dispute Resolution Trials are a means of dispute resolution that are very expensive and sometimes take many months to resolve. Trials are a means of dispute resolution that are very expensive and sometimes take many months to resolve. There are “alternative dispute resolution” (ADR) methods to resolve disputes that are inexpensive, relatively quick and leave more control with the parties involved. There are “alternative dispute resolution” (ADR) methods to resolve disputes that are inexpensive, relatively quick and leave more control with the parties involved.

7 ADR ADR describes any procedure or device for resolving disputes other than the traditional judicial process. ADR describes any procedure or device for resolving disputes other than the traditional judicial process. Unless court-ordered, there is no record which is an important factor in commercial litigation due to trade secrets. Unless court-ordered, there is no record which is an important factor in commercial litigation due to trade secrets. Most common: negotiation, mediation, arbitration. Most common: negotiation, mediation, arbitration.

Introduction American and English court systems follow the adversarial system of justice. Each client is represented by an attorney although a client is allowed to represent herself (called “pro-se”). The American Court system follows procedural rules that ensure due process.

Procedural Rules Court systems developed around the common law concept of “due process” which requires adequate notice and a fair and impartial hearing. For example, all federal trials are governed by the Federal Rules of Civil Procedure and Federal Rules of Evidence.

First Step: Consulting an Attorney Generally, the first step in litigation is contacting any attorney to seek qualified legal advice. Types of Attorneys’ Fees (hourly vs. contingent fee). Settlement Considerations.

Pre-Trial Procedures (Stages of Litigation) Pleadings. Discovery. Pre-Trial. Trial. Post-Trial.

Litigation- Pleadings 1 st 2 nd 3 rd 4 th 5 th Pleadings // Discovery // Pre-Trial // Trial // Post

1 st Stage: The Pleadings File Petition/Complaint. Court acquires jurisdiction over subject matter and Plaintiff. Facts: What happened. Prayer: Court relief.

Complaint

Pleadings-Service Defendant served with Complaint and Summons. Court acquires Personal Jurisdiction over Defendant (person or corporation). Corporate Defendants served via Registered Agent. If the Defendant is out-of-state, Court can acquire jurisdiction by “long-arm” statutes.

Summons

Pleadings-Answer 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.

Pleadings-Answer Defendant’s Response (Answer): States General Denial. May Move for Change of Venue. May Allege Affirmative Defenses . May Counter-Claim against Plaintiff.

Answer-Affirmative Defense Defenses in which the defendant essentially claims that even if all of the plaintiff’s allegations are true, 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 Fraud is an example of an affirmative defense that might be asserted in a breach of contract case. Burden of proof is on the Defendant to show fraud actually took place.

Answer- Counter or Cross Claims A counterclaim is a lawsuit filed by the Defendant(s) against the Plaintiff, in response to the original complaint. A cross-claim is against a co-Plaintiff or co- Defendant. P D2 Cross- Claim D1 Counter Claim VS.

Answer-Motion to Dismiss Defendant can move the Court to dismiss the Action for various reasons, such as: The Court lacks jurisdiction. 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).

Litigation- Discovery 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post

2 nd Stage: Discovery Discovery is the process by which parties obtain information from the opposing party prior to trial. Depositions & Interrogatories. Requests for Admissions. Requests for Production Of Documents, Object and Entry. Electronic Discovery.

Litigation- Pre-Trial 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post

3 rd Stage: Litigation-Pretrial Pre-Trial Conference. Mediation-Arbitration. Disposition Without Trial. Default Judgments. Dismissals (With/Without Prejudice). Summary Judgment. Settlement. Pre-Trial Orders (ex:TRO, In Limine).

Pre-Trial Dismissals and Judgments Motion to Dismiss. Motion for Judgment on Pleadings. Motion for Summary Judgment. Accompanied by affidavits. No jury.

Litigation- Trial 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post

The Trial Trial is fundamentally an evidence presentation and authentication procedure. To prevail in a civil trial, Plaintiff must introduce a preponderance of competent evidence with respect to each disputed allegation in order to prove it.

The Trial [2] 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.

The Trial [3] Bench Trial (no jury). Jury Selection. Voire Dire. Challenges/Pick the Jury. Impanel Jury. Alternate Jurors.

The Trial [4] Opening Statements. Plaintiff’s Case--Evidence: Witnesses- Direct Examination vs. Cross Exam. Generally, Hearsay evidence is not admissible. Admissibility of evidence decided by judge. Parties object to admission of evidence and judge decides, as a matter of law, whether evidence may be admitted into the trial.

The Trial [5] Plaintiff’s Case (cont’d). Party may impeach the testimony or credibility of opposing witness by showing prior inconsistent statements and/or Perjury. Defendant’s Case. Closing Arguments. Jury Instructions and Deliberations.

The Trial [6] Verdict. Criminal case--burden of proof is “beyond a reasonable doubt” and the verdict (for guilty or acquittal) must be unanimous. If not, mistrial/hung jury. 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. Judgment is the Court’s acceptance and recording of the jury’s verdict.

Litigation- Post Trial 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post

The Appeal A party may appeal the jury’s verdict or any legal issue, motion or court ruling during the trial. 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. Appeals court can affirm (agree with) or reverse (disagree with) the lower court’s decision.

F.R.C.P. Rule 11 Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name — or by a party personally if the party is unrepresented. The paper must state the signer's address, address, and telephone number.

Rule 11 (2) The attorney must certify that: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Rule 11(3) Sanctions: If the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.

Assignment 2 Assignment: Rule 4 of the Federal Appellate Rules of ProcedureGo to: 8a/usc_sup_05_28_10_sq3.htmlLocate Rule 4 of the Federal Appellate Rules of Procedure. Then answer the following questions. 8a/usc_sup_05_28_10_sq3.html What is the time limit within which an appeal must be filed? How can the time limits be extended?