The Adversarial System

Trial Procedure

Criminal v. Civil

● Names of the Parties● Number of People Involved● Penalty/Remedy● Burden of Proof

● NOTE – there are vast differences between the two when it comes to procedure.

Characteristics of the Adversarial System

● Parties dictate the form, content and speed of the process.

● Pre-Trial process allows parties to “discover” information (“facts”).

● At trail, the judge takes a “back seat” to the advocates.➢ it is the job of the advocates to present evidence to

the fact finder (judge or jury)

● Throughout the process witnesses and evidence are “examined” by the advocates.

Civil Procedure Rules (CPR)

● Civil litigation is conducted by the parties in accordance with rules of the court.

● These rules apply to all civil courts.➢ NOTE – courts can make up their own rules regarding

things not found in the CPR.

● They are purely procedural in nature and have no impact on substantive law.

● Overriding Objective➢ lawyers should pay more attention to ensuring a fair

process and justice than to winning!

Statute of Limitations

● Laws stating by when a case must be filed.● Purpose is to ensure that evidence is “fresh”,

which theoretically ensures fairness.● Varies by jurisdiction● Cal. Code Civ. Proc. § 335.1. Within two years:

An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.

First Stage: Pleadings (U.S.)

● Definition – allegations of law and fact.● Plaintiff Files – complaint, petition or claims

– sets forth elements of claims

● Defendant Files – answer, response, demurrer– Can also file Motion to Dismiss at this point

– Different forms depending on jurisdiction● general v. specific denials.

– Affirmative defenses can be raised

The Claim Form

(England)

http://www.justclaim.co.uk/index.php?file=/procedures/filling-in-N1/index.page

Initial Steps: Statements of Case (England)

● Claimant files claim form with appropriate court.● Defendant files defence or admission form.

➢ failure to do so can result in default judgment for the claimant.

➢ also can file counter-claims here

● Plaintiff can file a Reply if defendant has filed a counter-claim or if ordered to do so by the court.

● NOTE – this is the general rule for starting a case but there are exceptions.

Historical Roots

● Historical Functions of Pleadings– provide notice

– set forth facts

– narrow issues

● Today there are two varieties of pleadings in the U.S.– Code

– Notice

Three Track Approach: England

● Once filed, cases are assigned to one of three tracks to resources needed to dispose of the case are proportionate to the “size” of the dispute.➢ Small Claims Track – normally cases dealing with

₤5000 are assigned here.➢ Fast Track – claims above ₤5000 but less than

₤15,000 also trials that are likely to last less than one day.

➢ Multi-Track – all others, see next slide

Multi-Track

● All cases that do not qualify for fast track end up here.

● Case management with the active participation of a procedural judge is the norm.➢ case management conference may be held to set

the rules and make sure parties abide by them.➢ goal of effective case management to achieve a

settlement before trial.➢ District Judges normally act as procedural judge.

Pre-Trial Proceedings

Discovery in the United States

Discovery (U.S.)

● Exchange and investigation of evidence between parties.

● Purpose:– Expedite litigation

– Encourage settlement

● NOTE – U.K. system is different.

Scope of Discovery

● information which "appears reasonably calculated to lead to the discovery of admissible evidence."– Federal Rules of Civil Procedure

● Not Work Product!

Discovery Devices

● Deposition● Interrogatories● Demand to Inspect/Produce Documents● Request for Admission● Physical/Mental Examinations

Deposition

● Examination under oath of an expected party or witness for discovery or as evidence.

● Advantages● Testimony may be used by● Disadvantages● Against Whom?

Interrogatories

● written questions to party to be answered under oath

● Advantages● Use● Disadvantages● Against Whom?

Demand to Inspect Documents

● Demand to Inspect– A party may make inspection demands on "any

other party to the action" to produce and permit the party making the request to inspect and copy, any designated documents.

Request for Admission

● Written request asking opposing party to admit genuineness of documents or truth of matters.

● Party must respond or deemed to admit.● Only against parties.● Advantages v. Disadvantages

Physical & Mental Exams

● Order from Court● Upon showing of

good cause● of physical or mental

examination of party● when mental or

physical state is in controversy.

Pre-Trial Procedure

Disclosure in England

Pre-Commencement Orders

● Orders issued by a court BEFORE formal claim has been filed.➢ Disclosure and Inspection of Documents

person against whom order is issued must be likely party to future proceedings (not potential witnesses!)

documents sought must be ones that could be sought under normal pre-trial orders

pre-action disclosure is desirable to potentially dispose of anticipated proceeding.

➢ There are other orders (search, freezing, etc.) that can be issued by a court.

Disclosure and Inspection of Documents (England)

● Party is disclose to court and other parties relevant documents in his possession, custody or control.

● NOTE – under the old rules parties had to disclose documents that might have led to relevant documents.➢ a much broader standard.

Witnesses (England)

● A party may obtain a pre-trial order to “depose” a witness.➢ the deposition takes place in front of an officer of

the court, under oath, and can be used as evidence in court.

rarely done.

● Court has the power to order witnesses to appear in court.

● Prior to the trail each side will name the witnesses they require.

Pre-Trial Proceedings

● Court will rule on pre-trial motions– motions pertaining to discovery (although probably

heard earlier)

● Motion for Summary Judgment– asking the court to rule as a matter of law

– whether a reasonable jury could find for the non-moving party.

Choosing thefactfinder

Judge or Jury OpeningStatements

Plaintiff's Case

Defendant's Case

Plaintiff's Rebuttal

Closing ArgumentsInstructions to the Jury

& Jury Deliberation Verdict & Judgment

Evidence Defined

● matters that tend to prove the existence or non-existence of some fact (Oxford Dict. of Law)

● those matters actually admitted into evidence by the judge presiding, as in 'the evidence before the court'

● body of rules that govern what can and what cannot be brought before a court in any particular case, and the weight that it should have, as in ‘the law of evidence’ (Collins Dict. of the Law).

● '"Evidence" means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.‘ Cal. Evid. Code § 140

Relevance

● To be admissible court, evidence must be relevant and material– Compare to definition for discovery.

● “Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”– Federal Rule 401

Hearsay

● Evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated (Cal. Evid. Code § 1200; Rule 33.1, Civ. Proc. Rules for Engl. and Wales) may be inadmissible as 'hearsay evidence'

● There are numerous exceptions to this rule.

Best Evidence Rule

● The best evidence rule nowadays requires that the original of a document must be produced in court in order to prove the document's contents, unless the proposing party offers an adequate explanation for her failure to produce the original (Oxford Dict. of Law)

Privilege

● In the law of evidence certain persons in certain situations enjoy a privilege not to testify– Privilege against self-incrimination

● which accords witnesses a right not to testify or otherwise reveal evidence that might expose themselves to criminal prosecution

● The legal professional or 'attorney-client' privilege protects confidential communications between lawyers and their clients.

Jury Instructions (U.S.)

1201. Strict Liability—Manufacturing Defect—Essential Factual Elements

[Name of plaintiff] claims that the [product] contained a manufacturing defect. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] [manufactured/distributed/sold] the [product];

2. That the [product] contained a manufacturing defect when it left [name of defendant]’s possession;

3. That the [product] was used [or misused] in a way that was reasonably foreseeable to [name of defendant];

4. That [name of plaintiff] was harmed; and

5. That the [product]’s defect was a substantial factor in causing [name of plaintiff]’s harm.

Judicial Control of Juries (U.S.)

● Directed Verdict– motion made at end of opposing party's case

arguing that there is insufficient evidence to send the case the jury.

● Judgment Notwithstanding the Verdict– made after jury renders verdict

– reversal of a jury's verdict by the trial judge when the judge believes there was no factual basis for the verdict or it was contrary to law.

Integrity of Verdicts (U.S.)

● Motion for New Trial● Grounds:

– irregularity

– jury misconduct

– newly discovered evidence

– insufficient evidence