COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Hotel, Restaurant, and Travel Law A Preventive Approach, Seventh Edition Chapter 2 Legal Procedures: Journey of a Case through the Courts

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Introduction  Variety of resolutions Lawsuits  Settled before lawsuit is begun  Heard in court  Settled after lawsuit is begun

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Introduction (continued)  Claim Demand for remedy, usually money, to compensate for a perceived wrong

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Parties and Proof  Parties—individuals engaged in a conflict, referred to as litigants  Plaintiff—party who initiates the lawsuit  Defendant—party being sued

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Parties and Proof (continued)  Plaintiff must prove that: Defendant violated the law Plaintiff suffered an injury or loss Cause of plaintiff’s injury or loss was the defendant’s violation of the law

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Commencing the Lawsuit  The lawsuit is begun by serving or filing a complaint and a summons

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. The Complaint  Document issued by the plaintiff that contains allegations (unproven statements)  Refer to Figure 2-1 in the textbook for an example

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. The Complaint (continued)  Consists of three parts: Statement showing the jurisdiction of the court Details about why the plaintiff is suing the defendant Claim for relief, usually a request for money

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Jurisdiction  Authority of a court to hear a case  Personam jurisdiction—authority of a court to determine a case against a particular defendant

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Basis for the Claim  The complaint must explain to the defendant and the court the circumstances comprising the plaintiff’s claim  Contains allegations detailing the reasons why the plaintiff is suing the defendant

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. The Claim for Relief  The complaint must tell the defendant and the court what the plaintiff wants from the defendant  Plaintiffs in civil cases customarily seek relief in the form of an award of money

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Summons  Document ordering the defendant to appear and defend the allegations made against him or her  Served with the complaint  Refer to Figure 2-4 in the textbook for an example

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Service of Process  Delivery of the summons and complaint to the defendant  Filed with the court in most states  Specially appointed agent of the court serves them on the defendant

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Responses to the Complaint  Defendant must: File motions addressed to some defect in the complaint If no defects exist, file an answer to the complaint

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Preliminary Motions  Request to a judge for relief while a lawsuit is ongoing Made in writing  Extension of time  Request to clarify the allegations in the complaint  Dismissal of the lawsuit because the court lacks jurisdiction

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. The Answer  Defendant must serve within the permissible time period  Fulfills following purposes: Admits or denies the allegations Sets forth any defenses the defendant may have to the plaintiff’s claim States any claims the defendant may have against the plaintiff (counterclaim)

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Responses to the Answer  Motions directed to the answer Plaintiff is entitled to make motions relating to the answer  May move for a more definite statement if the answer is vague  May move to strike all or part of the answer if information is redundant or immaterial

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Responses to the Answer (continued)  Reply Only if the answer contains a counterclaim Plaintiff must issue a reply  Relays plaintiff’s response to the allegations in the counterclaim

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Pleadings  Complaint  Answer  Reply

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Summary Judgment  All motions relating to the pleadings have been made and ruled on by the judge  Either party may make a motion for a summary judgment  Asks the judge to decide case in favor of moving party with a trial

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Pretrial Procedure  Discovery—process by which each side obtains evidence known to the other side

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Pretrial Procedure (continued)  Discovery may include: Written questions (interrogatories) Oral questions (depositions) Inspection of physical evidence that may be relevant Review of documents or other evidence held by the adverse party or by a potential witness Mental or physical condition of one of the parties is an issue

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Pretrial Conference  Judge and opposing lawyers meet to prepare for trial  Judge encourages parties to reach a settlement Settlement—resolution of a dispute without a trial

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. The Trial  After serving of pleadings and gathering of evidence  Attorneys present the case to an impartial tribunal Judge Jury

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Trial Procedure  Selection of the jury  Opening statements  Plaintiff’s case-in-chief  Defendant’s case-in-chief  Plaintiff’s case in rebuttal

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Trial Procedure (continued)  Summation  Judge’s charge to the jury  Jury’s deliberations  Verdict  Judgment

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Types of Trials  Jury trial—tried by a jury  Bench trial—heard by the judge

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Types of Trials (continued)  Criminal case—determination to have a jury is made exclusively by the defendant  Civil case—if either party wants a jury, the case will be tried by a jury

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Types of Trials (continued)  Factors to be considered when deciding whether to choose a jury trial: Will I be presenting technical evidence? Will my case benefit from emotional appeals? Is there anything about the case that may evoke distaste in a jury for me or my position?

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Jury Selection  Voir dire—examination of prospective jurors

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Jury Pool  Registered voters  Utility subscribers  Licensed operators of motor vehicles  Registered owners of motor vehicles  State and local taxpayers  Recent high school graduates  People who volunteer to serve as jurors  Other state-specific categories

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Opening Statements  Presentation to the jury outlining the proof a lawyer expects to present during the trial

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. The Case-in-Chief  Plaintiff presents evidence  Testimony Direct examination by the party who calls the witness Cross-examination by opposing counsel Redirect examination by party who originally called witness

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Plaintiff’s Rebuttal Case  Presented after the defense has concluded its case

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Summation  After the cases-in-chief and plaintiff’s rebuttal  Attorneys summarize the case for the jury (closing statements)

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Charging the Jury  Judge informs the jury of the law applicable to the case

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Jury Deliberations  Detailed discussions of the case that may result in a verdict Determination of the facts Determination of how the law applies to the facts

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. The Verdict  Jury’s decision in a case  In most states, a decision must be unanimous  Hung jury—less than the necessary number of jurors in agreement

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. The Judgment  Official decision of a judge about the rights and claims of each side in a lawsuit  Verdict is not binding until a judgment has been entered

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. The Judgment (continued)  Attorney for losing party may challenge the verdict  May pursue one or more procedures after the verdict and before the judgment Ask that the jury be polled

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. The Judgment (continued) Ask for judgment notwithstanding the verdict—order from judge reversing the jury’s verdict Ask for a new trial on the grounds of an erroneous ruling of the judge during the trial Ask for a remittiur—ruling that the amount of money awarded by the jury was unreasonable

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Appeal  Complaint made by a litigant to a superior court that a trial judge committed an error

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Appellate Courts  Courts that hear appeals  No juries  Three to 9 judges

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Appellate Courts (continued)  Can do any of the following: Affirm the decision of the lower court; judgment stands Reverse the decision of the lower court and order a new trial Order that the case be dismissed

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Alternative Dispute Resolution  Arbitration—dispute is submitted to an arbitrator, objective third party Informal hearing is held and evidence is presented Arbitrator decides who should win Arbitrator’s decisions cannot be appealed

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Mediation  Mediator facilitates discussion and negotiations between parties Informal setting Mediator does not have authority to decide who wins Assists the parties in reaching a settlement

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Summary Jury Trial  Primarily used in federal courts  Attorneys summarize arguments to an informal jury with using witnesses  Jury renders nonbinding decision Intended to facilitate settlement discussions  Faster than a trial

COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Interpreting Case Citations  26 NY3d 777 (2007) NY3d—third series of a set containing cases from the highest court in New York Cited case begins on page 777 of the 26 th volume in the New York third set of books in the library Court issued its ruling in 2007