1. WELCOME TO UNIT 4! We will start at the top of the hour. Make sure your speakers are on and volume is turned up. Civil Litigation and Legal Documents

2. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 2 GRADING All grades are up within 5 days of the end of the unit (by Sunday at midnight) with the exception of the quizzes, tests, and exams. Quiz, test, and exam grades are up within 7 days of the end of the unit (by Tuesday).

3. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 3 LATE ASSIGNMENTS Assignments are due each week by midnight on Tuesday. I will no longer accept assignments after Tuesday at midnight with the exception of very exigent circumstances.

4. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 4 Seminar Make-Up Assignments If you miss seminar, your make-up assignment must be emailed to me within one week of the missed seminar. The make-up assignment is explained in an Announcement in Course Home as well as in the Syllabus.

5. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 5 Tonight’s Agenda Review last week – Court System Questions about Week 3 written assignment Cover Unit 4 Material Civil Litigation Legal Documents Review for Midterm WELCOME BACK!

6. The Paralegal Professional Chapter 7 Civil Litigation

7. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 7 Civil Litigation Involves legal action to resolve disputes between parties. In civil litigation, the plaintiff sues a defendant to recover money damages or other remedy for the alleged harm the defendant caused the plaintiff.

8. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 8 Is there an ethical obligation not to file certain lawsuits? Ethics

9. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 9 What is meant by a frivolous lawsuit? Are there sanctions for filing a frivolous law suit? Explain. Ethics

10. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 10 Pleadings Initiate the lawsuit Provides the Due Process notice Can consist of Complaint Petition Cross-complaint Reply Answer Counterclaim

11. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 11 Pleadings (cont.) The plaintiff, the party who is suing, files a complaint containing the basis of the lawsuit. Filed with the court and Served with a summons on the defendant

12. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 12 Pleadings (cont.) The complaint must either: Provide a general allegation of the wrongful conduct alleged (notice pleading) or Plead specific facts alleged, called fact pleading.

13. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 13 Pleadings (cont.) Time: Individual court rules provide a time within the initial complaint or petition must be served; Responsive pleading must be filed to avoid dismissal of the action or a default judgment. The responding party must file a responsive pleading (Answer) with the time limit allowed by the court.

14. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 14 Pleadings (cont.) Answer: An answer is filed by the defendant with the court and served on the plaintiff. It usually denies most allegations of the complaint.

15. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 15 HYPO: Tenant is injured when he falls down a staircase and sues landlord for his damages incurred as a result of the fall. At the time tenant owes three months rent. The landlord should include in his answer (1) his response to the averments of the complaint, (2) an affirmative defense that the tenant assumed the risk of falling as he was carrying a load of boxes, and (3) a cross- complaint for the back rent. HYPO - Answer

16. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 16 Pleadings (cont.) Cross-Complaint: A cross-complaint is filed and served by the defendant if he or she countersues the plaintiff. The defendant is the cross-complainant and the plaintiff is the cross-defendant. The cross-defendant must file an Answer.

17. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 17 Pleadings (cont.) Intervention: A person not named in a lawsuit may have an interest, and seek to become involved by way of an intervention Consolidation: If there are several suits that duplicate facts & legal issues, they may be consolidated in the interests of judicial economy

18. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 18 In our injured tenant v. landlord above, the bank holding the mortgage may intervene in order to collect the back rents which have been assigned to the bank to cover the mortgage payment. Other tenants also injured on the staircase may consolidate their claims with our tenant. HYPO - Intervention

19. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 19 Pleadings (cont.) 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

20. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 20 Our tenant described before was injured on August 15, 2006. Our state’s statute of limitations for a personal injury lawsuit is two (2) years from the date of injury. Tenant must bring his lawsuit on or before August 15, 2008. If he files suit on August 16, 2008 the lawsuit will have to be dismissed as his claims will be barred by the statute of limitation. What purpose do statutes of limitations serve? HYPO – Statute of Limitations

21. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 21 E-filings in Court Paralegals are at the forefront of e-litigation where many of the documents filed in court are done electronically. The technology currently is available for implementing electronic filing—e-filing—of pleadings, briefs, and other documents related to a lawsuit.

22. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 22 Additional Search Techniques Concept searching Compares word patterns, incorporated with Boolean searches Paper reviews (converted into hard copy & 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

23. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 23 Discovery Discovery is a step in the litigation process where the plaintiff and the defendant share information relevant to their dispute.

24. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 24 Discovery (cont.) The purpose of Discovery is to: Evaluate the client’s case Understand strengths/weaknesses of the opponent’s case Preserve testimony Potentially facilitate settlement Learn information to impeach a witness

25. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 25 Discovery (cont.)  Depositions: Oral testimony given under oath to either a party or a witness.  Purpose:  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

26. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 26 Discovery (cont.) 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

27. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 27 Discovery (cont.) 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

28. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 28 Discovery (cont.) 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

29. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 29 Discovery (cont.) Requests for Admission: Written requests issued by one party to the lawsuit to the other asking that certain facts or legal issues be admitted as true. E-Discovery: Much evidence is in digital form. A case can hinge on a party’s ability to conduct electronic discovery.

30. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 30 Pretrial Motions Motion to dismiss Demurrer (12(b)(6) motion) – there is no legal claim Made before the defendant answers If granted, Δ need not answer If denied, Δ is given additional time to answer If granted, plaintiff may be given time to amend the complaint Failure to do so will result in a dismissal of the suit

31. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 31 Pretrial Motions (cont.) Motion for Judgment of the Pleadings If all the facts alleged in the pleadings are true, movant 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

32. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 32 Settlement Conference Pretrial hearing Facilitates settlement Identifies the trial issues Establishes timelines for motions & discovery May result in diversion into ADR

33. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 33 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

34. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 34 Trial (cont.) Stages of Trial Jury selection (voir dire) Opening statements Plaintiff’s case Defendant’s case Rebuttal & rejoinder Closing arguments Jury instructions (charge to the jury) Jury deliberations Judgment

35. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 35 Trial (cont.) 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

36. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 36 Trial (cont.) Opening Statements – summary of the issues that will be presented Plaintiff’s case -- attorney calls witnesses to give testimony & introduce evidence Defendant’s attorney has an opportunity to cross-examine within the scope of the direct exam Plaintiff’s attorney can ask questions about matters that fall within the scope of the cross-examination Plaintiff must meet the burden of proof

37. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 37 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 defendant’s claims Rejoinder witnesses are called by the defendant to answer plaintiff’s rebuttal

38. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 38 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

39. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 39 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 & 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

40. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 40 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 & possibly oral arguments Usually heard by three judges

41. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 41 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

42. HAVE A GREAT WEEK! GOOD LUCK ON YOUR MIDTERM!