1. Chapter 3 Court Procedures

2. 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.

3. 3 §1: 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.

4. 4 §2: Consulting an Attorney Generally, the first step in litigation is contacting any attorney to seek qualified legal advice. Legal Fees (hourly vs. contingent fee). Settlement Considerations.

5. 5 §3: Pre-Trial Procedures (Stages of Litigation) Pleadings. Discovery. Pre-Trial. Trial. Post-Trial.

6. 6 Litigation- Pleadings 1 st 2 nd 3 rd 4 th 5 th Pleadings // Discovery // Pre-Trial // Trial // Post

7. 7 1 st Stage: Pleadings-Complaint Prepare Pleadings File Petition/Complaint. Court acquires jurisdiction over subject matter and Plaintiff. Facts: what happened. Prayer: Court relief.

8. 8 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.

9. 9 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.

10. 10 Pleadings-Answer Defendant’s Answer: States General Denial. Move for Change of Venue. Allege Affirmative Defenses. Counter Claim against Plaintiff.

11. 11 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.

12. 12 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.

13. 13 Answer- Counter or Cross Claims A counterclaim is a lawsuit filed by the Defendant 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.

14. 14 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).

15. 15 Pleadings-Answer Move to Dismiss. Motion for Judgment on Pleadings. Motion for Summary Judgment.

16. 16 Litigation- Discovery 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post

17. 17 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.

18. 18 Litigation- Pre-Trial 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post

19. 19 3 rd Stage: Litigation-Pretrial Mediation-Arbitration. Disposition Without Trial. Default Judgments. Dismissals (With/Without Prejudice). Summary Judgment. Settlement. Pre-Trial Orders (ex:TRO, In Limine).

20. 20 Litigation- Trial 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post

21. 21 §4: 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.

22. 22 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.

23. 23 The Trial [3] Bench Trial (no jury). Jury Selection. Voire Dire. Challenges/Pick the Jury. Impanel Jury. Alternate Jurors.

24. 24 The Trial [4] Opening Statements. Plaintiff’s Case--Evidence: Witnesses- Direct examination vs. Cross X. 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.

25. 25 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.

26. 26 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.

27. 27 Litigation- Post Trial 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post

28. 28 § 5: Post Trial Motions Once the trial is concluded, a dissatisfied party may: File a Motion for a New Trial. Ask that the judge enter a judgment contrary to the verdict (JNOV) rendered by the jury.

29. 29 §6: 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.

30. 30 §7: Enforcing the Judgment Once a judgment becomes final (i.e., subject to no further judicial review) the defendant is legally required to comply with its terms. Defendants who will not voluntarily comply with a judgment can be compelled to do so by seizure and sale of the Defendant’s assets.

31. 31 Case 3.1: Ausely v Bishop FACTS: Ausley, a certified real estate appraiser, hired Bryan Bishop as an apprentice. After Bishop obtained his license, Ausley proposed renegotiating their contract with a term for reduced pay. Bishop refused and left to open his own appraisal office. Ausley made false statements to lenders and others, including the police, making Bishop appear to be unethical and criminal. Finally, Ausley filed suit in North Carolina court alleging that Biship breached his contract.

32. 32 FACTS (cont’d) Bishop filed a counterclaim, charging Ausley with slander. Ausley filed a motion for summary judgment, which the court granted. Bishop appealed. HELD: FOR BISHOP. REVERSED. Court of Appeals of North Carolina held that Bishop had enough proof of his claim for it to go to trial. The court reversed the lower court’s grant of summary judgment on this issue and remanded for trial. The court explained that “[p]laintiff admitted in his deposition that he made statements that impeached defendant in his trade.” Case 3.1: Ausely v Bishop

33. 33 Case 3.2: LeBlanc v. American Honda Motor Co. FACTS: LeBlanc was injured when his snowmobile collided with an off ‑ road vehicle manufactured by Honda (a subsidiary of a Japanese corporation). LeBlanc sued Honda and the driver in a New Hampshire state court. LeBlanc’s lawyer, during closing, told the jury the case was not about “Pearl Harbor or the Japanese prime minister saying Americans are lazy and stupid. * * * What this case is about is not American xenophobia; it’s about corporate greed.”

34. 34 FACTS (cont’d) Jury returned a verdict in favor of LeBlanc. Honda’s motion for a new trial was denied and Honda appealed. Honda argued that LeBlanc’s remarks so tainted the proceedings as to deprive Honda of a fair trial. HELD: FOR HONDA. REVERSED. A new trial is warranted “where counsel attempts to ap­peal to the sympathies, passions, and prejudices of jurors grounded in race or nationality.” Case 3.2: LeBlanc v. American Honda Motor Co.