Chapter Twelve Civil Procedure Before Trial

Introduction to Law, 4 th Edition Hames and Ekern © 2010 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 2 Pretrial Civil Procedure Steps One party determines that a cause of action (COA) exists. Proper court is chosen. Plaintiff complaint and summons is issued by court. Defendant is served with complaint and summons. Defendant either defaults or files an appropriate response to complaint (General Denial, Answer, Demurrer, etc.) Both sides prepare for trial, normally by conducting discovery. Settlement negotiations and/or alternative dispute resolution options are explored, often several times during trial preparation, and parties report to the court periodically for “conferences”. The trial date is set.

Introduction to Law, 4 th Edition Hames and Ekern © 2010 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 3 The Cause of Action A cause of action is a factual situation that creates a legally recognized right to damages or other relief.

Introduction to Law, 4 th Edition Hames and Ekern © 2010 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 4 Jurisdiction Original Jurisdiction: is the power to first hear a case; court of original jurisdiction is where the trial takes place Jurisdiction: is the power or authority to act in a certain situation; the power of a court to hear cases and render judgments

Introduction to Law, 4 th Edition Hames and Ekern © 2010 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 5 Jurisdiction ( cont. ) Subject Matter Jurisdiction federal court jurisdiction state court jurisdiction Personal Jurisdiction In Rem Jurisdiction Venue

Introduction to Law, 4 th Edition Hames and Ekern © 2010 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 6 Civil Pleadings Complaint Answer Counterclaim Cross-Claim Third-party Complaint

Introduction to Law, 4 th Edition Hames and Ekern © 2010 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 7 The Complaint (the basic components) 1.the Caption 2.the Allegations 3.the Prayer 4.the Date & the Address, Telephone Number, and Signature of the attorney for the plaintiff

Introduction to Law, 4 th Edition Hames and Ekern © 2010 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 8 Summons Summons: is one of the documents used to begin a legal action; it is served on the defendant and tells the defendant to appear in court and respond to the charge or risk a default.

Introduction to Law, 4 th Edition Hames and Ekern © 2010 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 9 Service of Process Personal Service Substituted Service Publication Service by Mail Waiver Who Can Serve Date of Service Proof of Service

Introduction to Law, 4 th Edition Hames and Ekern © 2010 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 10 The Answer Answer: The most common response filed by a defendant is called an answer Affirmative Defenses General Denial Specific Denial

Introduction to Law, 4 th Edition Hames and Ekern © 2010 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 11 Pretrial Motions Notice of Motion Declaration in Support of Motion Memorandum of Points and Authorities in Support of Motion Declaration in Opposition to Motion Memorandum of Points and Authorities in Opposition to Motion

Introduction to Law, 4 th Edition Hames and Ekern © 2010 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 12 Discovery Interrogatories Request for Admissions Request to Produce or Inspect Deposition Request for Medical Examination Disclosure

Introduction to Law, 4 th Edition Hames and Ekern © 2010 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 13 Settlement A settlement occurs when the parties reach an agreement on some or all of the issues without actually going to trial. The remaining unresolved issues are litigated or tried. Compromise and release A settlement agreement that ends the case. Dismissal With prejudice Without prejudice; with leave to refile.