Introduction

COPYRIGHT © 2006 West Legal Studies in Business, a part of The Thomson Corporation. Thomson, the Star logo, and West Legal Studies in Business are trademarks used herein under license.

West’s Business Law 10th Edition

Kenneth W. Clarkson, University of MiamiRoger LeRoy Miller, Institute for University Studies, Arlington, Texas

Gaylord A. Jentz, University of Texas, Austin, EmeritusFrank B. Cross, University of Texas, Austin

CHAPTER 3CHAPTER 3Court ProceduresCourt Procedures

1

COPYRIGHT © 2006 West Legal Studies in Business, a part of The Thomson Corporation. Thomson, the Star logo, and West Legal Studies in Business are trademarks used herein under license. 2

IntroductionIntroduction

American and English court systems follow the American and English court systems follow the adversarial system of justice. adversarial system of justice.

Each client is represented by an attorney Each client is represented by an attorney although a client is allowed to represent herself although a client is allowed to represent herself (called “(called “pro-sepro-se”).”).

The American Court system follows procedural The American Court system follows procedural rules that ensure due process.rules that ensure due process.

American and English court systems follow the American and English court systems follow the adversarial system of justice. adversarial system of justice.

Each client is represented by an attorney Each client is represented by an attorney although a client is allowed to represent herself although a client is allowed to represent herself (called “(called “pro-sepro-se”).”).

The American Court system follows procedural The American Court system follows procedural rules that ensure due process.rules that ensure due process.


§1: §1: Procedural RulesProcedural Rules

Court systems developed around the common Court systems developed around the common law concept of “due process” which requires law concept of “due process” which requires adequate notice and a fair and impartial hearing.adequate notice and a fair and impartial hearing.

For example, all federal trials are governed by For example, all federal trials are governed by the Federal Rules of Civil Procedure and Federal the Federal Rules of Civil Procedure and Federal Rules of Evidence.Rules of Evidence.

Court systems developed around the common Court systems developed around the common law concept of “due process” which requires law concept of “due process” which requires adequate notice and a fair and impartial hearing.adequate notice and a fair and impartial hearing.

For example, all federal trials are governed by For example, all federal trials are governed by the Federal Rules of Civil Procedure and Federal the Federal Rules of Civil Procedure and Federal Rules of Evidence.Rules of Evidence.


§2: Consulting an Attorney§2: Consulting an Attorney

Generally, the first step in litigation is contacting Generally, the first step in litigation is contacting any attorney to seek qualified legal advice.any attorney to seek qualified legal advice.

Legal Fees (hourly vs. contingent fee).Legal Fees (hourly vs. contingent fee).Settlement Considerations.Settlement Considerations.

Generally, the first step in litigation is contacting Generally, the first step in litigation is contacting any attorney to seek qualified legal advice.any attorney to seek qualified legal advice.

Legal Fees (hourly vs. contingent fee).Legal Fees (hourly vs. contingent fee).Settlement Considerations.Settlement Considerations.


§3: Pre-Trial Procedures§3: Pre-Trial Procedures((Stages of Litigation)Stages of Litigation)

Pleadings.Pleadings.Discovery.Discovery.Pre-Trial.Pre-Trial.Trial.Trial.Post-Trial.Post-Trial.

Pleadings.Pleadings.Discovery.Discovery.Pre-Trial.Pre-Trial.Trial.Trial.Post-Trial.Post-Trial.


Litigation- PleadingsLitigation- Pleadings

1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post


11stst Stage: The Pleadings Stage: The Pleadings

File Petition/Complaint.File Petition/Complaint. Court acquires jurisdiction over subject matter and Court acquires jurisdiction over subject matter and

Plaintiff.Plaintiff. Facts: What happened.Facts: What happened. Prayer: Court relief. Prayer: Court relief.

File Petition/Complaint.File Petition/Complaint. Court acquires jurisdiction over subject matter and Court acquires jurisdiction over subject matter and

Plaintiff.Plaintiff. Facts: What happened.Facts: What happened. Prayer: Court relief. Prayer: Court relief.


ComplaintComplaint


Pleadings-ServicePleadings-Service

Defendant served with Complaint and Summons. Defendant served with Complaint and Summons. Court acquires Personal Jurisdiction over Court acquires Personal Jurisdiction over

Defendant (person or corporation).Defendant (person or corporation).Corporate Defendants served via Registered Corporate Defendants served via Registered

Agent. If the Defendant is out-of-state, Court can Agent. If the Defendant is out-of-state, Court can acquire jurisdiction by “long-arm” statutes.acquire jurisdiction by “long-arm” statutes.

Case 3.1: Case 3.1: Rio Properties, Inc. v. Rio Rio Properties, Inc. v. Rio International InterlinkInternational Interlink (2002). (2002).

Defendant served with Complaint and Summons. Defendant served with Complaint and Summons. Court acquires Personal Jurisdiction over Court acquires Personal Jurisdiction over

Defendant (person or corporation).Defendant (person or corporation).Corporate Defendants served via Registered Corporate Defendants served via Registered

Agent. If the Defendant is out-of-state, Court can Agent. If the Defendant is out-of-state, Court can acquire jurisdiction by “long-arm” statutes.acquire jurisdiction by “long-arm” statutes.

Case 3.1: Case 3.1: Rio Properties, Inc. v. Rio Rio Properties, Inc. v. Rio International InterlinkInternational Interlink (2002). (2002).


SummonsSummons


Pleadings-AnswerPleadings-Answer

The Answer is the Defendant’s response to the The Answer is the Defendant’s response to the allegations stated in the Plaintiff’s Complaint.allegations stated in the Plaintiff’s Complaint.

In the Answer, the Defendant must specifically In the Answer, the Defendant must specifically admit or deny each allegation in the Complaint.admit or deny each allegation in the Complaint.

The Answer is the Defendant’s response to the The Answer is the Defendant’s response to the allegations stated in the Plaintiff’s Complaint.allegations stated in the Plaintiff’s Complaint.

In the Answer, the Defendant must specifically In the Answer, the Defendant must specifically admit or deny each allegation in the Complaint.admit or deny each allegation in the Complaint.


Pleadings-AnswerPleadings-Answer

Defendant’s Response (Answer):Defendant’s Response (Answer):

States General Denial.States General Denial.

May Move for Change of Venue.May Move for Change of Venue.

May Allege Affirmative Defenses.May Allege Affirmative Defenses.

May Counter-Claim against Plaintiff.May Counter-Claim against Plaintiff.

Defendant’s Response (Answer):Defendant’s Response (Answer):

States General Denial.States General Denial.

May Move for Change of Venue.May Move for Change of Venue.

May Allege Affirmative Defenses.May Allege Affirmative Defenses.

May Counter-Claim against Plaintiff.May Counter-Claim against Plaintiff.


Answer-Affirmative DefenseAnswer-Affirmative Defense

Defenses in which the defendant essentially Defenses in which the defendant essentially claims that even if all of the plaintiff’s claims that even if all of the plaintiff’s allegations are true, the plaintiff cannot win allegations are true, the plaintiff cannot win because there is a more powerful law on the because there is a more powerful law on the defendant’s side that will allow the defendant to defendant’s side that will allow the defendant to win.win.

Defenses in which the defendant essentially Defenses in which the defendant essentially claims that even if all of the plaintiff’s claims that even if all of the plaintiff’s allegations are true, the plaintiff cannot win allegations are true, the plaintiff cannot win because there is a more powerful law on the because there is a more powerful law on the defendant’s side that will allow the defendant to defendant’s side that will allow the defendant to win.win.


Answer- Affirmative Defense Answer- Affirmative Defense

Fraud is an example of an affirmative defense Fraud is an example of an affirmative defense that might be asserted in a breach of contract that might be asserted in a breach of contract case.case.

Burden of proof is on the Defendant to show Burden of proof is on the Defendant to show fraud actually took place. fraud actually took place.

Fraud is an example of an affirmative defense Fraud is an example of an affirmative defense that might be asserted in a breach of contract that might be asserted in a breach of contract case.case.

Burden of proof is on the Defendant to show Burden of proof is on the Defendant to show fraud actually took place. fraud actually took place.


Answer-Answer-Counter or Cross ClaimsCounter or Cross Claims

A counterclaim is a lawsuit filed by the A counterclaim is a lawsuit filed by the Defendant against the Plaintiff, in response to the Defendant against the Plaintiff, in response to the original complaint. A cross-claim is against a original complaint. A cross-claim is against a co-Plaintiff or co-Defendant.co-Plaintiff or co-Defendant.

A counterclaim is a lawsuit filed by the A counterclaim is a lawsuit filed by the Defendant against the Plaintiff, in response to the Defendant against the Plaintiff, in response to the original complaint. A cross-claim is against a original complaint. A cross-claim is against a co-Plaintiff or co-Defendant.co-Plaintiff or co-Defendant.

P D2

Cross-Claim

D1Counter-Claim

VS.


Answer-Motion to DismissAnswer-Motion to Dismiss

Defendant can move the Court to dismiss the Defendant can move the Court to dismiss the Action for various reasons, such as: Action for various reasons, such as: The Court lacks jurisdiction.The Court lacks jurisdiction. The Plaintiff has failed to make all of the allegations, The Plaintiff has failed to make all of the allegations,

in his Complaint, that the law requires (i.e., the in his Complaint, that the law requires (i.e., the plaintiff has failed to state a cause of action).plaintiff has failed to state a cause of action).

Defendant can move the Court to dismiss the Defendant can move the Court to dismiss the Action for various reasons, such as: Action for various reasons, such as: The Court lacks jurisdiction.The Court lacks jurisdiction. The Plaintiff has failed to make all of the allegations, The Plaintiff has failed to make all of the allegations,

in his Complaint, that the law requires (i.e., the in his Complaint, that the law requires (i.e., the plaintiff has failed to state a cause of action).plaintiff has failed to state a cause of action).


Dismissals and Judgments Dismissals and Judgments Before TrialBefore Trial

Move to Dismiss.Move to Dismiss.Motion for Judgment on Pleadings.Motion for Judgment on Pleadings.Motion for Summary Judgment.Motion for Summary Judgment.

Accompanied by affidavits. No jury.Accompanied by affidavits. No jury.

Move to Dismiss.Move to Dismiss.Motion for Judgment on Pleadings.Motion for Judgment on Pleadings.Motion for Summary Judgment.Motion for Summary Judgment.

Accompanied by affidavits. No jury.Accompanied by affidavits. No jury.


Litigation- DiscoveryLitigation- Discovery



22ndnd Stage: Discovery Stage: Discovery

Discovery is the process by which parties obtain Discovery is the process by which parties obtain information from the opposing party prior to information from the opposing party prior to trial.trial. Depositions & Interrogatories.Depositions & Interrogatories. Requests for Admissions.Requests for Admissions. Requests for Production Of Documents, Object and Requests for Production Of Documents, Object and

Entry.Entry. Case 3.2: Case 3.2: Computer Task Group, Inc. v. BrothbyComputer Task Group, Inc. v. Brothby

(2004).(2004).

Discovery is the process by which parties obtain Discovery is the process by which parties obtain information from the opposing party prior to information from the opposing party prior to trial.trial. Depositions & Interrogatories.Depositions & Interrogatories. Requests for Admissions.Requests for Admissions. Requests for Production Of Documents, Object and Requests for Production Of Documents, Object and

Entry.Entry. Case 3.2: Case 3.2: Computer Task Group, Inc. v. BrothbyComputer Task Group, Inc. v. Brothby

(2004).(2004).


Litigation- Pre-TrialLitigation- Pre-Trial



33rdrd Stage: Litigation-Pretrial Stage: Litigation-Pretrial

Mediation-Arbitration.Mediation-Arbitration.Disposition Without Trial.Disposition Without Trial.

Default Judgments.Default Judgments. Dismissals (With/Without Prejudice).Dismissals (With/Without Prejudice). Summary Judgment.Summary Judgment. Settlement.Settlement.

Pre-Trial Orders (ex:TRO, Pre-Trial Orders (ex:TRO, In LimineIn Limine).).

Mediation-Arbitration.Mediation-Arbitration.Disposition Without Trial.Disposition Without Trial.

Default Judgments.Default Judgments. Dismissals (With/Without Prejudice).Dismissals (With/Without Prejudice). Summary Judgment.Summary Judgment. Settlement.Settlement.

Pre-Trial Orders (ex:TRO, Pre-Trial Orders (ex:TRO, In LimineIn Limine).).


Litigation- TrialLitigation- Trial



§4: The §4: The TrialTrial

Trial is fundamentally an evidence presentation Trial is fundamentally an evidence presentation and authentication procedure.and authentication procedure.

To prevail in a civil trial, Plaintiff must introduce To prevail in a civil trial, Plaintiff must introduce a preponderance of competent evidence with a preponderance of competent evidence with respect to each disputed allegation in order to respect to each disputed allegation in order to prove it.prove it.

Trial is fundamentally an evidence presentation Trial is fundamentally an evidence presentation and authentication procedure.and authentication procedure.

To prevail in a civil trial, Plaintiff must introduce To prevail in a civil trial, Plaintiff must introduce a preponderance of competent evidence with a preponderance of competent evidence with respect to each disputed allegation in order to respect to each disputed allegation in order to prove it.prove it.


The Trial The Trial [2][2]

The Defendant will “object” to Plaintiff’s The Defendant will “object” to Plaintiff’s evidence and the judge will rule on each evidence and the judge will rule on each objection. If the judge “overrules” the objection, objection. If the judge “overrules” the objection, the evidence is admitted for the jury to consider. the evidence is admitted for the jury to consider. If the judge “sustains” the objection, the If the judge “sustains” the objection, the evidence is not admitted into the trial. evidence is not admitted into the trial.

The Defendant will “object” to Plaintiff’s The Defendant will “object” to Plaintiff’s evidence and the judge will rule on each evidence and the judge will rule on each objection. If the judge “overrules” the objection, objection. If the judge “overrules” the objection, the evidence is admitted for the jury to consider. the evidence is admitted for the jury to consider. If the judge “sustains” the objection, the If the judge “sustains” the objection, the evidence is not admitted into the trial. evidence is not admitted into the trial.



Bench Trial (no jury).Bench Trial (no jury).Jury Selection.Jury Selection.

Voire Dire.Voire Dire. Challenges/Pick the Jury.Challenges/Pick the Jury. Impanel Jury. Impanel Jury. Alternate Jurors.Alternate Jurors.

Bench Trial (no jury).Bench Trial (no jury).Jury Selection.Jury Selection.

Voire Dire.Voire Dire. Challenges/Pick the Jury.Challenges/Pick the Jury. Impanel Jury. Impanel Jury. Alternate Jurors.Alternate Jurors.



Opening Statements.Opening Statements.Plaintiff’s Case--Evidence:Plaintiff’s Case--Evidence:

Witnesses- Direct Examination vs. Cross Exam.Witnesses- Direct Examination vs. Cross Exam. Admissibility of evidence decided by judge. Parties Admissibility of evidence decided by judge. Parties

object to admission of evidence and judge decides, as object to admission of evidence and judge decides, as a matter of law, whether evidence may be admitted a matter of law, whether evidence may be admitted into the trial.into the trial.

Opening Statements.Opening Statements.Plaintiff’s Case--Evidence:Plaintiff’s Case--Evidence:

Witnesses- Direct Examination vs. Cross Exam.Witnesses- Direct Examination vs. Cross Exam. Admissibility of evidence decided by judge. Parties Admissibility of evidence decided by judge. Parties

object to admission of evidence and judge decides, as object to admission of evidence and judge decides, as a matter of law, whether evidence may be admitted a matter of law, whether evidence may be admitted into the trial.into the trial.



Plaintiff’s Case (Plaintiff’s Case (cont’dcont’d). ). Party may impeach the testimony or credibility of Party may impeach the testimony or credibility of

opposing witness by showing prior inconsistent opposing witness by showing prior inconsistent statements and/or Perjury.statements and/or Perjury.

Defendant’s Case. Defendant’s Case. Closing Arguments.Closing Arguments.Jury Instructions and Deliberations.Jury Instructions and Deliberations.

Plaintiff’s Case (Plaintiff’s Case (cont’dcont’d). ). Party may impeach the testimony or credibility of Party may impeach the testimony or credibility of

opposing witness by showing prior inconsistent opposing witness by showing prior inconsistent statements and/or Perjury.statements and/or Perjury.

Defendant’s Case. Defendant’s Case. Closing Arguments.Closing Arguments.Jury Instructions and Deliberations.Jury Instructions and Deliberations.


The Trial The Trial [6][6]Verdict.Verdict.

Criminal case--burden of proof is “beyond a reasonable Criminal case--burden of proof is “beyond a reasonable doubt” and the verdict (for guilty or acquittal) must be doubt” and the verdict (for guilty or acquittal) must be unanimous. If not, mistrial/hung jury.unanimous. If not, mistrial/hung jury.

Civil Cases—generally, burden of proof is by Civil Cases—generally, burden of proof is by “preponderance” of the evidence and a majority of “preponderance” of the evidence and a majority of jurors must agree on verdict. If not, then mistrial/ hung jurors must agree on verdict. If not, then mistrial/ hung jury.jury.

Judgment is the Court’s acceptance and recording Judgment is the Court’s acceptance and recording of the jury’s verdict.of the jury’s verdict.

Verdict.Verdict. Criminal case--burden of proof is “beyond a reasonable Criminal case--burden of proof is “beyond a reasonable

doubt” and the verdict (for guilty or acquittal) must be doubt” and the verdict (for guilty or acquittal) must be unanimous. If not, mistrial/hung jury.unanimous. If not, mistrial/hung jury.

Civil Cases—generally, burden of proof is by Civil Cases—generally, burden of proof is by “preponderance” of the evidence and a majority of “preponderance” of the evidence and a majority of jurors must agree on verdict. If not, then mistrial/ hung jurors must agree on verdict. If not, then mistrial/ hung jury.jury.

Judgment is the Court’s acceptance and recording Judgment is the Court’s acceptance and recording of the jury’s verdict.of the jury’s verdict.


Litigation- Post TrialLitigation- Post Trial



§ 5: § 5: Post Trial MotionsPost Trial Motions

Once the trial is concluded, a dissatisfied party Once the trial is concluded, a dissatisfied party may:may: File a Motion for a New Trial.File a Motion for a New Trial. Ask that the judge enter a judgment contrary to the Ask that the judge enter a judgment contrary to the

verdict (JNOV) rendered by the jury.verdict (JNOV) rendered by the jury.

Once the trial is concluded, a dissatisfied party Once the trial is concluded, a dissatisfied party may:may: File a Motion for a New Trial.File a Motion for a New Trial. Ask that the judge enter a judgment contrary to the Ask that the judge enter a judgment contrary to the

verdict (JNOV) rendered by the jury.verdict (JNOV) rendered by the jury.


§6: The Appeal§6: The AppealA party may appeal the jury’s verdict or any legal A party may appeal the jury’s verdict or any legal

issue, motion or court ruling during the trial.issue, motion or court ruling during the trial.The party filing the appeal (Appellant) files a brief The party filing the appeal (Appellant) files a brief

that contains a short statement of the facts, issues, that contains a short statement of the facts, issues, rulings by the trial court, grounds to reverse the rulings by the trial court, grounds to reverse the judgment, applicable law and arguments on judgment, applicable law and arguments on Appellant’s behalf.Appellant’s behalf.

Appeals court can affirm (agree with) or reverse Appeals court can affirm (agree with) or reverse (disagree with) the lower court’s decision.(disagree with) the lower court’s decision. Case 3.3 Case 3.3 Phansalkar v. Andersen Weinroth & Phansalkar v. Andersen Weinroth &

Co.Co. (2004). (2004).

A party may appeal the jury’s verdict or any legal A party may appeal the jury’s verdict or any legal issue, motion or court ruling during the trial.issue, motion or court ruling during the trial.

The party filing the appeal (Appellant) files a brief The party filing the appeal (Appellant) files a brief that contains a short statement of the facts, issues, that contains a short statement of the facts, issues, rulings by the trial court, grounds to reverse the rulings by the trial court, grounds to reverse the judgment, applicable law and arguments on judgment, applicable law and arguments on Appellant’s behalf.Appellant’s behalf.

Appeals court can affirm (agree with) or reverse Appeals court can affirm (agree with) or reverse (disagree with) the lower court’s decision.(disagree with) the lower court’s decision. Case 3.3 Case 3.3 Phansalkar v. Andersen Weinroth & Phansalkar v. Andersen Weinroth &

Co.Co. (2004). (2004).


§7: §7: Enforcing the JudgmentEnforcing the Judgment

Once a judgment becomes final (i.e., subject to Once a judgment becomes final (i.e., subject to no further judicial review) the defendant is no further judicial review) the defendant is legally required to comply with its terms.legally required to comply with its terms.

Defendants who will not voluntarily comply Defendants who will not voluntarily comply with a judgment can be compelled to do so by with a judgment can be compelled to do so by seizure and sale of the Defendant’s assets.seizure and sale of the Defendant’s assets.

Once a judgment becomes final (i.e., subject to Once a judgment becomes final (i.e., subject to no further judicial review) the defendant is no further judicial review) the defendant is legally required to comply with its terms.legally required to comply with its terms.

Defendants who will not voluntarily comply Defendants who will not voluntarily comply with a judgment can be compelled to do so by with a judgment can be compelled to do so by seizure and sale of the Defendant’s assets.seizure and sale of the Defendant’s assets.

Introduction

Documents

Transcript of Introduction