The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman Part II Chapter 7: Civil Litigation The Paralegal Professional ESSENTIALS, Second Edition

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Civil Litigation Involves legal action to resolve disputes between parties A variety of civil matters, e.g.,: Auto accidents Breaches of contract Patent infringement Litigation paralegals: Researching Preparing documents Interviewing clients Consulting with the attorney

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Pleadings Initiates the lawsuit Provides the due process notice Can consist of: Complaint Petition Cross-complaint Reply Answer Counterclaim

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Complaint  The plaintiff, the party who is suing, files a complaint containing:  A caption (information concerning the parties and the court)  The gravamen (allegations of the cause of the injury)  The “prayer for relief” (the relief sought)  Signature block and possibly a verification (attorney information/client’s sworn adoption of the facts)

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Summons  A court order directing the defendant (the person against whom the suit is brought) to appear and answer the complaint  Establishes personal jurisdiction  May be served various ways, including:  In person  By mail  To a statutory agent  By publication

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Cross-Complaint and Reply Also called a counterclaim or counterpetition. The defendant believes that he or she is the injured party, and files a pleading that would have been a complaint if filed first. The defendant must also respond to the complaint. The plaintiff must now respond (reply or answer) to Δ’s new allegations.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Intervention and Consolidation A person not named in a lawsuit may have an interest, and seek to become involved by way of an intervention. If there are several suits that duplicate facts and legal issues, they may be consolidated in the interests of judicial economy.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Statute of Limitations The period of time within which a suit must be brought Varies by jurisdiction, and by the nature of the claim Will begin to “run” when the plaintiff knows or should have known of the injury Date of the accident, breach Date of majority of the plaintiff

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ E-Discovery Increasing concerns about e-information --filtering, searching, reviewing, archiving, and producing Evidence may be found: Personal digital assistants USB drives Instant messaging Digital cameras

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ FRCP Changes E-discovery should be anticipated Defined within the Federal rules Production format should be reasonable E-data may be used to respond to interrogatories in some cases “Reasonably accessible” information is informally discoverable Difficult-to-obtain e-information may require a court order Good-faith “safe harbor” for unintentionally destroyed evidence Inadvertently disclosed work product may be retrieved

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Best Practices in E-Discovery Can documents be filtered & searched? Cstodian filtering Time and date filtering File size filtering Keyword searching De-duplication How will they be reviewed for responsiveness and privilege? What format is required?

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Additional Search Techniques Concept searching Compares word patterns, incorporated with Boolean searches Paper reviews (converted into hardcopy and reviewed) Electronic reviews Look at “loose” electronic files in their “native” format Use a local litigation database Work with an online document review repository hosted by an e- discovery service provider

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Discovery The process of learning the facts of the case from the other party and witnesses Prevents surprise Saves court time Promotes settlement Includes: Depositions Interrogatories Requests for productions Physical and mental exams

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Depositions Oral testimony given under oath Either a party or a witness Non-party witnesses are summoned by subpoenas (duces tecum, if documents are to be produced) Preserves evidence Helps prepare for trial Creates a sworn body of testimony, which can be used to impeach the witness on the stand if testimony changes.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Interrogatories Written questions May be highly detailed Propounded only to parties to the suit Must be answered in writing, unless an objection is made to the question Answered under oath

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Production of Documents Documents under the control of one party may be requested by the other side Used in preparing the case Usually provided by the party in control, but the work may shift to the requesting party to examine them on- site if their production would: Be too voluminous Disrupt ordinary business activities In permanent storage

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Physical and Mental Examinations Physical exams are used to determine the extent of injuries when that is the basis for the claim (personal injury, workers’ compensation). Mental exams may be ordered if mental trauma is the basis for damages (infliction of emotional distress) or if competency is an issue.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Pretrial Motions Motion to dismiss Demurrer (12(b)(6) motion) – there is no legal claim Made before the defendant answers If granted, the defendant need not answer If denied, the defendant is given additional time to answer If granted, the plaintiff may be given time to amend the complaint Failure to do so will result in a dismissal of the suit

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Pretrial Motions, cont. Motion for judgment of the pleadings If all the facts alleged in the pleadings are true, the party making the motion would win. Summary judgment motion If there are no factual issues, there is no need for the trier of fact (usually jury), and the judge, as the trier of law, can make a decision without a trial. Additional affidavits of fact may be considered, but they cannot give rise to a dispute, since that would defeat the motion.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Settlement Conference Pretrial hearing Facilitates settlement Identifies the trial issues Establishes timelines for motions and discovery May result in diversion into ADR

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Trial A Right guaranteed by the Seventh Amendment to the U.S. Constitution Jury trialJudge – trier of law Jury – trier of fact Bench trialJudge – trier of law Judge – trier of fact

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Stages of Trial Jury selection (voir dire) Opening statements Plaintiff’s case Defendant’s case Rebuttal and rejoinder Closing arguments Jury instructions (charge to the jury) Jury deliberations Judgment

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Jury Selection The array (jury pool) is called. Prospective jurors fill out a questionnaire. Examined by lawyers and/or judge as to possible bias in the case. May be excused “for cause” (potential or actual bias) or by a peremptory challenge (based on case strategy). Jurors may be isolated from outside influences (sequestered) if the judge feels it’s necessary.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Trial Opening Statements – summary of the issues that will be presented. Plaintiff’s case – the plaintiff’s attorney calls witnesses to give testimony and introduce evidence. The defendant’s attorney has an opportunity to cross-examine within the scope of the direct exam. The plaintiff’s attorney can ask questions about matters that fall within the scope of the cross-examination. Plaintiff must meet the burden of proof.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Trial, cont. Defendant’s case: Rebut plaintiff’s evidence Prove any affirmative defenses asserted Prove any allegation made in the cross-complaint or counterclaim Rebuttal witnesses are called by the plaintiff to answer the defendant’s claims Rejoinder witnesses are called by the defendant to answer the plaintiff’s rebuttal

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Trial, cont. Closing Arguments are made at the end of the presentation of evidence. Each attorney makes an argument to convince the jurors to accept his or her side of the story. This is persuasive argument, not evidence. Jury Instructions are tendered by each side, chosen by the judge, who reads them to the jury, explaining the law to be applied to the facts.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Trial, cont. Jury deliberations are conducted outside of the courtroom, and continue until the jury has reached a verdict or they decide they are unable to do so. The judge hears the verdict and enters a judgment: Based upon the jury verdict, or N.O.V., notwithstanding the verdict (which cannot, as a matter of law, be upheld), or Remittitur (or additur), having to do with the amount of damages determined by the jury.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Appeal Once there is a final judgment, the losing party can appeal if: He or she is the defendant in a criminal case There is a timely notice of appeal filed There are grounds for appeal (errors of law) The appeal usually consists of written briefs of law and possibly oral arguments. Usually heard by three judges.

The Paralegal Professional ESSENTIALS, 2/e By Cheeseman and Goldman PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ Appellate Decisions The court can affirm the lower court’s decision, rejecting the claim made by the appellant. The court can determine that the appellant’s claim was valid, and that errors occurred. They can reverse the outcome and send the matter back to the trial court (remand) for retrial. The appellate can only review the law, not the factual findings of the lower court.