1. Chapter 3 Court Procedures Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. Jentz Miller Cross BUSINESS LAW Alternate Edition 11 th Ed.

2. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 2Introduction  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. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 3 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. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 4 First Step: Consulting an Attorney  Generally, the first step in litigation is contacting any attorney to seek qualified legal advice.  Types of Attorneys’ Fees (hourly vs. contingent fee).  Settlement Considerations.

5. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 5 Pre-Trial Procedures (Stages of Litigation)  Pleadings.  Discovery.  Pre-Trial.  Trial.  Post-Trial.

6. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 6 Litigation- Pleadings 1 st 2 nd 3 rd 4 th 5 th Pleadings // Discovery // Pre-Trial // Trial // Post

7. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 7 1 st Stage: The Pleadings  File Petition/Complaint. –Court acquires jurisdiction over subject matter and Plaintiff. –Facts: What happened. –Prayer: Court relief.

8. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 8 Complaint

9. 9Pleadings-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. –CASE 3.1 Cruz v. Fagor America, Inc. (2007).

10. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 10 Summons

11. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 11Pleadings-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.

12. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 12Pleadings-Answer Defendant’s Response (Answer): –States General Denial. –May Move for Change of Venue. –May Allege Affirmative Defenses . –May Counter-Claim against Plaintiff.

13. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 13 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. 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.

14. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 14 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.

15. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 15 Answer- Counter or Cross Claims A counterclaim is a lawsuit filed by the Defendant(s) against the Plaintiff, in response to the original complaint. A cross-claim is against a co-Plaintiff or co- Defendant. A counterclaim is a lawsuit filed by the Defendant(s) 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.

16. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 16 Answer-Motion to Dismiss Defendant can move the Court to dismiss the Action for various reasons, such as: 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).

17. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 17 Litigation- Discovery 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post

18. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 18 2 nd Stage: Discovery Discovery is the process by which parties obtain information from the opposing party prior to trial. 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. –Electronic Discovery.

19. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 19 Litigation- Pre-Trial 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post

20. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 20 3 rd Stage: Litigation-Pretrial  Pre-Trial Conference.  Mediation-Arbitration.  Disposition Without Trial. –Default Judgments. –Dismissals (With/Without Prejudice). –Summary Judgment. –Settlement.  Pre-Trial Orders (ex:TRO, In Limine).

21. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 21 Pre-Trial Dismissals and Judgments  Motion to Dismiss.  Motion for Judgment on Pleadings.  Motion for Summary Judgment. –Accompanied by affidavits. No jury.

22. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 22 Litigation- Trial 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post

23. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 23 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.

24. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 24 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. 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.

25. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 25 The Trial [3]  Bench Trial (no jury).  Jury Selection. –Voire Dire. –Challenges/Pick the Jury. –Impanel Jury. –Alternate Jurors.

26. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 26 The Trial [4]  Opening Statements.  Plaintiff’s Case--Evidence: –CASE 3.3 Novak v. Tucows, Inc. (2007). –Witnesses- Direct Examination vs. Cross Exam. –Generally, Hearsay evidence is not admissible. 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.

27. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 27 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.

28. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 28 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.

29. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 29 Litigation- Post Trial 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post

30. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 30 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 (N.O.V.) rendered by the jury.

31. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 31 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.  Case 3.3 Evans v. Eaton Corp. Long Term Disability Plans (2008).

32. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 32 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.  Writ of Execution.