1. © 2004 West Legal Studies in Business A Division of Thomson Learning 1 Chapter 3 Court Procedures Chapter 3 Court Procedures

2. © 2004 West Legal Studies in Business A Division of Thomson Learning 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. 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. © 2004 West Legal Studies in Business A Division of Thomson Learning 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.Federal Rules of Civil Procedure Federal Rules of Evidence 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.Federal Rules of Civil Procedure Federal Rules of Evidence

4. © 2004 West Legal Studies in Business A Division of Thomson Learning 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. Generally, the first step in litigation is contacting any attorney to seek qualified legal advice. Legal Fees (hourly vs. contingent fee). Settlement Considerations.

5. © 2004 West Legal Studies in Business A Division of Thomson Learning 5 §3: Pre-Trial Procedures (Stages of Litigation) Pleadings. Discovery. Pre-Trial. Trial. Post-Trial. Pleadings. Discovery. Pre-Trial. Trial. Post-Trial.

6. © 2004 West Legal Studies in Business A Division of Thomson Learning 6 Litigation- Pleadings 1 st 2 nd 3 rd 4 th 5 th Pleadings // Discovery // Pre-Trial // Trial // Post

7. © 2004 West Legal Studies in Business A Division of Thomson Learning 7 1 st Stage: Pleadings-Complaint Prepare Pleadings  File Petition/Complaint.Complaint Court acquires jurisdiction over subject matter and Plaintiff. Facts: What happened. Prayer: Court relief. Prepare Pleadings  File Petition/Complaint.Complaint Court acquires jurisdiction over subject matter and Plaintiff. Facts: What happened. Prayer: Court relief.

8. © 2004 West Legal Studies in Business A Division of Thomson Learning 8 Complaint

9. © 2004 West Legal Studies in Business A Division of Thomson Learning 9 Pleadings-Service Defendant served with Complaint and Summons.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: Rio Properties v. Rio International Interlink (2002) Defendant served with Complaint and Summons.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: Rio Properties v. Rio International Interlink (2002)

10. © 2004 West Legal Studies in Business A Division of Thomson Learning 10 Summons

11. © 2004 West Legal Studies in Business A Division of Thomson Learning 11 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. 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. © 2004 West Legal Studies in Business A Division of Thomson Learning 12 Pleadings-Answer Defendant’s Answer:  States General Denial.  Move for Change of Venue.  Allege Affirmative Defenses.  Counter Claim against Plaintiff. Defendant’s Answer:  States General Denial.  Move for Change of Venue.  Allege Affirmative Defenses.  Counter Claim against Plaintiff.

13. © 2004 West Legal Studies in Business A Division of Thomson 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.

14. © 2004 West Legal Studies in Business A Division of Thomson 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. 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. © 2004 West Legal Studies in Business A Division of Thomson Learning 15 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.

16. © 2004 West Legal Studies in Business A Division of Thomson Learning 16 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). 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. © 2004 West Legal Studies in Business A Division of Thomson Learning 17 Pleadings-Answer Move to Dismiss. Motion for Judgment on Pleadings. Motion for Summary Judgment. Case 3.2: Ausley v. Bishop (1999). Move to Dismiss. Motion for Judgment on Pleadings. Motion for Summary Judgment. Case 3.2: Ausley v. Bishop (1999).

18. © 2004 West Legal Studies in Business A Division of Thomson Learning 18 Litigation- Discovery 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post

19. © 2004 West Legal Studies in Business A Division of Thomson Learning 19 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. 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.

20. © 2004 West Legal Studies in Business A Division of Thomson Learning 20 Litigation- Pre-Trial 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post

21. © 2004 West Legal Studies in Business A Division of Thomson Learning 21 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). Mediation-Arbitration. Disposition Without Trial.  Default Judgments.  Dismissals (With/Without Prejudice).  Summary Judgment.  Settlement. Pre-Trial Orders (ex:TRO, In Limine).

22. © 2004 West Legal Studies in Business A Division of Thomson Learning 22 Litigation- Trial 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post

23. © 2004 West Legal Studies in Business A Division of Thomson Learning 23 §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. 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. © 2004 West Legal Studies in Business A Division of Thomson 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.

25. © 2004 West Legal Studies in Business A Division of Thomson Learning 25 The Trial [3] Bench Trial (no jury). Jury Selection.  Voire Dire.  Challenges/Pick the Jury.  Impanel Jury.  Alternate Jurors. Bench Trial (no jury). Jury Selection.  Voire Dire.  Challenges/Pick the Jury.  Impanel Jury.  Alternate Jurors.

26. © 2004 West Legal Studies in Business A Division of Thomson Learning 26 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. 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.

27. © 2004 West Legal Studies in Business A Division of Thomson 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. 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. © 2004 West Legal Studies in Business A Division of Thomson 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. 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. © 2004 West Legal Studies in Business A Division of Thomson Learning 29 Litigation- Post Trial 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post

30. © 2004 West Legal Studies in Business A Division of Thomson Learning 30 § 5: Post Trial Motions Once the trial is concluded, a dissatisfied party may:  File a Motion for a New Trial. Case 3.3: LeBlanc v. American Honda Motor Co (1997).LeBlanc v. American Honda Motor Co  Ask that the judge enter a judgment contrary to the verdict (JNOV) rendered by the jury. Once the trial is concluded, a dissatisfied party may:  File a Motion for a New Trial. Case 3.3: LeBlanc v. American Honda Motor Co (1997).LeBlanc v. American Honda Motor Co  Ask that the judge enter a judgment contrary to the verdict (JNOV) rendered by the jury.

31. © 2004 West Legal Studies in Business A Division of Thomson Learning 31 §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. 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.

32. © 2004 West Legal Studies in Business A Division of Thomson Learning 32 §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. 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.

33. © 2004 West Legal Studies in Business A Division of Thomson Learning 33 Law on the Web Federal Court Locator at Villanova U. National Center for State Courts. National Center for State Courts Rules of Civil Procedure at Cornell U. Rules of Civil Procedure Michigan Cybercourt. Michigan Cybercourt Legal Research Exercises on the Web. Federal Court Locator at Villanova U. National Center for State Courts. National Center for State Courts Rules of Civil Procedure at Cornell U. Rules of Civil Procedure Michigan Cybercourt. Michigan Cybercourt Legal Research Exercises on the Web.