1. Civil procedures before trial
Chapter 12
Civil procedures before trial
By: Antoria Jackson and Savannah Winston

2. Introduction Into Civil Litigation
When a dispute arises between two parties, they can settle in various ways:
Most disputes settle without legal intervention.
Attorneys or professional third parties may settle disputes informally.
Other times, disputes will head into legal action when a compromise cannot be made.
Solving disputes involves filing a lawsuit or pursuing through courts. Mediation and arbitration used in some situations, where a neutral third party listens to case.
In arbitration, the third party settles the dispute.
In mediation, the third party attempts to get parties to settle their own dispute.

3. Civil Procedure Steps One party determines that cause of action exists
Proper court is chosen
Plaintiff files complaint in court and summons issued by court
Defendant served with copy of complaint and summons
Defendant either defaults or files appropriate response to complaint
Both sides prepare for trial, normally by conducting discovery
Trial date is set

4. Federal Court: Civil Procedure Regulated by United States Code and Federal Rules of Civil Procedure
Federal rules and rules similar adopted by states.
In state court, civil procedure is regulated by laws of state.
Most courts, federal and state, have local rules of court that also govern.
Local rules of court are rules that apply to a particular court
Usually written by judges in that court

5. II. Cause of Action and Remedies
Before plaintiffs can recover in court, they must show that they have a cause of action.
A cause of action is a factual situation that creates a legally recognized right to damages or other relief.
At trial, the plaintiff will try to prove the elements of the cause of action
The defendant will try to prove that there is a valid defense
When a plaintiff proves that he or she has a cause of action, a civil court provides a remedy.
Often the remedy is in the form of money damages to compensate plaintiff for loss, however, sometimes the remedy can be specific relief
Specific relief includes orders such as injunctions or specific performance of a contract.
An injunction is a court order requiring a party to take some action or refrain from some action

6. Cause of Action and Remedies, Con’t
A case in which a party requests money damages is sometimes called a case at law.
A case in which a party requests specific relief is sometimes called a case in equity.
Distinction between law and equity originated in early common law.
Originally, only technical pleading requirements existed, often meant a court could only award money damages
To prevent this, separate court created: The Chancery Courts, which filled void of technicality and considered fairness.
Two separate courts no longer exist, but important distinction between actions at law and actions at equity remain.
Institute of Cetacean Research v. Sea Shepherd Conservation Society
Illustrates an injunction
Discusses unclean hands
General defense in equitable actions
Doctrine holding that if the plaintiff has engaged in unethical conduct in connection with a matter in litigation, the court should not grant plaintiff any remedy or relief.

7. III. Jurisdiction
Before any court can resolve a dispute, it must have jurisdiction.
Jurisdiction is the power or authority to act in a certain situation; the power of a court to hear cases and render judgement
Different courts have different jurisdictions
The federal district courts have authority to hear trials and preliminary matters that lead to trial, which is original jurisdiction.
Civil litigation begins here
The appellate courts and the Supreme Court are preliminary courts of appellate court.
Review what happened at trial
A plaintiff must make a choice of court systems when filing a lawsuit.
Choice determined by laws regarding subject matter jurisdiction and laws regarding territorial jurisdiction.
A court has subject matter jurisdiction when it has authority to hear a case.
A court has territorial jurisdiction when it has power or authority over the defendant in the case or power over property that is the subject of the case.

8. Subject Matter Jurisdiction
Federal question is involved, when the United States is a party, or when diversity of citizenship exists.
Federal question exists when lawsuit is based on federal law, which is found in federal statutes, treaties, or the U.S. Constitution.
Example: When a large corporation sues a small corporation over a patent infringement, it belongs in federal court because patent laws are federal.
Diversity of citizenship is a basis for federal court jurisdiction where the plaintiff and defendant are residents of different states and the amount of controversy exceeds $75,000.
For purposes of determining diversity, a corporation is a citizen of the state of its incorporation and a citizen of its principal place of business.
If a party determines that the federal courts have subject matter jurisdiction, it does not necessarily mean that the action must be brought in federal court.
When the deferral court has subject matter jurisdiction, sometimes the jurisdiction is exclusive; other times, it is concurrent with the jurisdiction of the state courts
Exclusive jurisdiction means that the action must be brought into federal court.
Concurrent jurisdiction means the case can be brought in either federal or state court.
Where a court has concurrent jurisdiction, the plaintiff chooses the court in which to initially file a complaint. If filed in state court, can be removed or transferred to federal court.
Federal courts also have supplemental jurisdiction, meaning that federal court can hear an issue that would normally belong in state court, if that issue is incident to the adjudication of a federal question.
State courts usually have general subject matter jurisdiction.
Unless some law prohibits a state from hearing subject matter jurisdiction, it has subject matter jurisdiction.
In some states, certain courts may have limited jurisdiction
Example: a court may only have subject matter jurisdiction in criminal cases.
If a court does not have proper subject matter jurisdiction, it does not have the power to resolve the dispute and any judgement rendered by the court is void.

9. Jurisdiction, Con’t
Before a court’s decision can obligate a defendant to pay money or affect other rights, the court must have territorial jurisdiction, which can be based on personal jurisdiction.
All courts have personal jurisdiction over residents of the state in which the court is located
If a defendant is not a resident of the state in which the action is filed, the defendant must have sufficient contacts with the state
Can include doing business within state, entering a contract within the state, or causing an accident within the state
Another test used by courts to determine if personal jurisdiction exists is whether the defendant availed itself of the services of the state, which is called purposeful availment.
Exercise of personal jurisdiction must be consistent with state law.
States have the right to limit who can be sued within their state courts
Long-arm statutes are state laws that describe the circumstances in which the state may exercise jurisdiction over nonresident defendants.
Personal jurisdiction is based on defendant’s constitutional right to due process.
If a court lacks personal jurisdiction, the court can still hear a case if parties are fighting over property that is located within the state, which is then rem jurisdiction.
In rem jurisdiction, jurisdiction conferred on a court that may lack personal jurisdiction because the “thing” that is the subject of the dispute is located within the state.
Quasi in rem jurisdiction exists when the defendant owns property in the state that is not the subject of the lawsuit.
To acquire this jurisdiction, parties must first bring the property before the court through an attachment proceeding, then, the court can hear any lawsuit, but the damages are limited to the value of the property before court.

10. IV. Venue
If a trial court in any part of the state has subject matter and personal jurisdiction, then all trial courts in the state have jurisdiction, and choosing a specific court is a question of venue.
Venue is the proper geological court in which to file an action.
As general rule, actions can be maintained in judicial district in which the defendant resides or the cause of action rose.
If there is more than one possible judicial district, the plaintiff chooses where to file
Defendant can always ask court to change venue, but there must be a good reason.
Lawsuits should be filed and heard in a court that has proper venue.
If a defendant does not object to improper venue, he or she waives, the right to object to the judgement rendered by court.

11. V. Pleadings
Before parties go before judge or jury, appropriate pleadings must be filed into court.
Pleadings are the formal written allegations filed with the court by both sides to a lawsuit
Most common pleadings are complaint and the answer
The complaint is the document filed in a civil or criminal lawsuit that describes the allegations of the plaintiff and the basis for the lawsuit
The answer is the pleading used by the defendant to respond to the plaintiff’s complaint.
The Federal Rules of Civil Procedure also permit counterclaims, cross-claims, and third-party actions
A counterclaim is a pleading in which the defendant asks for damages or other relief from a plaintiff.
A cross-claim is a pleading in which a defendant asks for damages or other relief from a co-defendant.
A third-party action, also known as impleader, is a pleading in which a defendant asks for damages or other relief from a new party to the action.
Once pleadings are filed, parties must await their opportunity to present evidence to a judge or jury.
One of the parties must request that the case be given a trial date.

12. Pleadings, Con’t
At trial, parties attempt to prove the allegations contained in their pleadings.
Once proper court determined, the first step in initiating a civil lawsuit is the preparation and filing of a complaint.
The complaint consists of various parts
The caption contains names of parties and describes pleading
The allegations factual statements or claims that form the basis for the lawsuit and the basis for jurisdiction
The prayer a demand for relief
The date, address, telephone number, and signature of the attorney for the plaintiff
Once complaint is prepared, it is filed in court and given docket number
Today, many complaints and other court documents are e-filed using (CM/ECF) and (PACER)
When plaintiff files complaint, the court clerk issues a summons.
Notice is given through service of process, and the defendant is served with a copy of complaint and summons.
To serve is to deliver documents to another party in accordance with legal requirements
Once documents are served, document called proof of service must be filled out by individual who served papers

13. Pleadings, Con’d
If a defendant does not respond to the complaint within the allotted time, they default.
Plaintiff can then obtain default judgement, but these are not automatically given by court
Plaintiff must first prove defendant was properly served
ii. Must prove plaintiff is entitled to judgement by filing affidavit with court or testify before judge
At default hearings, defendant is not present
To contest lawsuit, defendant must file appropriate documents with court.
In this pleading, the defendant denies all or some of the allegations of the complaint.
The defendant may set forth affirmative defenses, in which the defense may admit that the allegations of the complaint are true, but then give some reason why the plaintiff is not entitled to win.
Two kinds of answers commonly used: general denial and specific denial.
Specific denial is a detailed or specific responsive pleading; it addresses each allegation by number
Once answer is prepared, it is filed in court.
Defendants sometimes believe that they are entitled to damages or other relief.
Challenging a complaint based on a legal claim is often done by filing a motion.
Motions to dismiss, motions for judgement on the pleadings, and motions for a more definite statement.
A defendant can also file a pleading called a demurrer: is a pleading used in some states to challenge the legal sufficiency of the complaint.

14. VI. Class Actions VII. Pretrial Motions
A class action is a special type of lawsuit where numerous parties who have suffered the same injury are represented by a few named individuals to pursue the action on behalf of everyone.
Can be pursued in either federal or state court
VII. Pretrial Motions
Often before cases come to trial, procedural disputes arise between parties that they cannot resolve on their own, and when this happens, the court must intervene.
When moving party requests the court, it is called a pretrial motion.
The other side is the responding party.
The moving party initiates a motion by requesting a court date for a hearing on the motion and by filing appropriate documents in court:
Notice of Motion and Motion
Declaration in Support of Motion
Memorandum of Points and Authorities in Support of Motion
Prior to hearing, the responding party can file opposing papers
Declaration is Opposition to Motion
Memorandum of Points and Authorities in Opposition to Motion

15. VIII. Discovery
Discovery is a pretrial process of acquiring information; the most common discovery tools are written interrogatories, depositions, and request for production of documents and things.
Requests for Admissions are written requests by one party to admit or deny the truth of a statement or the genuineness of a document.
If a matter is admitted, it is deemed proved for a trial
If a party fails to respond for a request for admission, eventually it will be deemed to be admitted.
Requests to produce or inspect are a form of discovery that allows one side to see and copy documents in the possession of the other.
Also allow one side to physically inspect any real or personal property relevant to the lawsuit.
A deposition is an oral proceeding in which one side personally questions another party or witness in a case.
Takes place before a court reporter and is under oath
All sides have right to be present
After, the questions and answers are reduced to writing in deposition transcript.
The only form of discovery that can be used with people who are not parties of the lawsuit.
In cases where physical condition of one of the parties is in question, the other side can a medical examination.
Federal rules also require the parties disclose certain basic information to one another.
Includes Identity of people who have relevant information
A description of relevant documents
A computation of all damages
Identity and qualifications of people expected to be called at trial as expert witnesses

16. IX. Pretrial Conferences and Settlement
In many cases, before a matter goes to trial, various pretrial conferences are held.
Informal proceedings, but involve attorneys for all parties appearing in court before a judge.
At a settlement conference, attorneys meet with a judge prior to trial and try to reach a settlement.
A settlement occurs when the parties reach an agreement on some or all the issues without actually going to trial; if settlement on some issues, the remaining issues are litigated or tried.
Only a small percentage of lawsuits filed ever go to trial.
If parties settle before lawsuit is filed, the parties enter into an agreement, normally in writing, that detailed the terms of their agreement.
Agreement known as a compromise and release.
A settlement agreement that ends a case.
If pleadings filed, court must file dismissal with prejudice.
Means that case has been settled and cannot be filed.
Settlement strongly encouraged.

17. Civil Procedures in 60 Seconds
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