Chapter Twelve Civil Procedure Before Trial. Introduction to Law, 4 th Edition Hames and Ekern ©...
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Transcript of Chapter Twelve Civil Procedure Before Trial. Introduction to Law, 4 th Edition Hames and Ekern ©...
Chapter Twelve
Civil Procedure Before Trial
Introduction to Law, 4th EditionHames and Ekern
© 2010 Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.2
Pretrial Civil Procedure Steps One party determines that a cause of action (COA) exists.
Proper court is chosen. Plaintiff complaint and summons is issued by court. Defendant is served with complaint and summons. Defendant either defaults or files an appropriate response to complaint (General Denial, Answer, Demurrer, etc.)
Both sides prepare for trial, normally by conducting discovery.
Settlement negotiations and/or alternative dispute resolution options are explored, often several times during trial preparation, and parties report to the court periodically for “conferences”.
The trial date is set.
Introduction to Law, 4th EditionHames and Ekern
© 2010 Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.3
The Cause of Action
A cause of action is a factual situation that creates a legally recognized right to damages or other relief.
Introduction to Law, 4th EditionHames and Ekern
© 2010 Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.4
Jurisdiction
Original Jurisdiction: is the power to first hear a case; court of original jurisdiction is where the trial takes place
Jurisdiction: is the power or authority to act in a certain situation; the power of a court to hear cases and render judgments
Introduction to Law, 4th EditionHames and Ekern
© 2010 Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.5
Jurisdiction (cont.)
Subject Matter Jurisdictionfederal court jurisdictionstate court jurisdiction
Personal Jurisdiction
In Rem Jurisdiction
Venue
Introduction to Law, 4th EditionHames and Ekern
© 2010 Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.6
Civil Pleadings
Complaint
Answer
Counterclaim
Cross-Claim Third-party Complaint
Introduction to Law, 4th EditionHames and Ekern
© 2010 Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.7
The Complaint(the basic components)
1. the Caption2. the Allegations3. the Prayer4. the Date & the Address,
Telephone Number, and Signature of the attorney for the plaintiff
Introduction to Law, 4th EditionHames and Ekern
© 2010 Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.8
Summons
Summons: is one of the documents used to begin a legal action; it is served on the defendant and tells the defendant to appear in court and respond to the charge or risk a default.
Introduction to Law, 4th EditionHames and Ekern
© 2010 Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.9
Service of Process
Personal Service
Substituted Service
Publication Service by Mail
Waiver
Who Can Serve
Date of Service
Proof of Service
Introduction to Law, 4th EditionHames and Ekern
© 2010 Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.10
The Answer
Answer: The most common response filed by a defendant is called an answer
Affirmative Defenses General Denial Specific Denial
Introduction to Law, 4th EditionHames and Ekern
© 2010 Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.11
Pretrial Motions Notice of Motion
Declaration in Support of Motion
Memorandum of Points and Authorities in Support of Motion
Declaration in Opposition to Motion
Memorandum of Points and Authorities in Opposition to Motion
Introduction to Law, 4th EditionHames and Ekern
© 2010 Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.12
Discovery
Interrogatories Request for Admissions Request to Produce or Inspect Deposition Request for Medical Examination
Disclosure
Introduction to Law, 4th EditionHames and Ekern
© 2010 Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.13
Settlement
A settlement occurs when the parties reach an agreement on some or all of the issues without actually going to trial. The remaining unresolved issues are litigated or tried.
Compromise and release A settlement agreement that ends the case.
Dismissal With prejudice Without prejudice; with leave to refile.