US Legal System 3 - Litigation - 2015

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For our class, we will use the term litigation to mean the entire formal judicial process of

settling a legal claim.

The following is a nice description of civil litigation (from: Aout !areers"

http:##legalcareers.aout.com#od#legalspecialties#a#civillitigation.htm$:

!ivil litigation can e divided into seven stages: investigation, pleadings, discover%, pre&

trial, trial, settlement and appeal. 'ot ever% lawsuit passes through each stage of litigation"

most lawsuits are settled prior to trial and man% cases that reach a trial verdict are not

appealed.

The lifespan of a lawsuit can range from several months to several %ears. !omple civil

litigation often ta)es %ears to pass from pre&suit investigation through trial#settlement.

*leadings + ritten statements filed % the parties in a civil lawsuit containing formal

allegations of the parties- respective claims and defenses. nder the Federal /ules of !ivil

*rocedure, the pleadings consist of a complaint, an answer, a repl% to a counterclaim, an

answer to a cross&claim, a third part% complaint and a third part% answer. (from:http:##legalcareers.aout.com#od#glossar%#g#*leadings.htm$


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itigants are the parties activel% involved in the litigation (i.e. the lawsuit$" the% are

t%picall% referred to as the plaintiffs and the defendants.

As used aove, civil law is referring to that law which is not criminal law (i.e. does not

involve a criminal statute$.


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!ommon law is sometimes referred to as case law.

3uote from Law 101 (4. A. /oche, 5phin *ulishing, 0667, pg. 18$: !ase law is the law as

stated in specific cases decided % the courts. !ase law is in written form, and generall%

contains a rief s%nopsis of the facts of the case, an anal%sis of the legal principles that

appl%, and a statement of the court9s decision (what is generall% )nown as the holding of

the case$. The holding is the cru of the decision rendered % that court. nsofar as that

court has jurisdiction or authorit% to interpret the law, the holding then ecomes law.


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The aove is referring to the advantages and disadvantages of a common law s%stem


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n food law it ma% e a federal agenc% (F;A, 5;A, etc.$ that initiates litigation, t%picall% via

the ;epartment of


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?pert witnesses rought % the different sides in a lawsuit ma% not come to the same

conclusion. A major tas) of a jur% is to determine, if possile, which of the epert

witnesses is providing the most reasonale information.


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The majorit% of food law deals with civil law" t%picall% it is in some wa% related to an

eecutive ranch administrative agenc% and the regulations the% have promulgated.


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The protections in place for defendants in civil cases are consideral% less than those in

place for defendants in criminal cases.


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3uote from Law 101 (4. A. /oche, 5phin *ulishing, 0667, pg. 06$:

A criminal case is, in essence, a lawsuit rought % the government acting through a

prosecutor against an individual who is accused of violating a criminal statute.

3uote from Law 101 (4. A. /oche, 5phin *ulishing, 0667, pg. @B$:

The distinguishing feature of criminal law is the element of punishment. The purpose of

criminal law is to punish wrongdoers. C This is dramaticall% different than the purpose of

civil law. Denerall%, civil law is intended to compensate someone for an injur% suffered or to

undo a wrong that has een committed. n the field of criminal law, the victim is not

necessaril% compensated, ut the perpetrator is punished. n the e%es of the criminal

justice s%stem, the purpose of that punishment is to help reform the perpetrator" to

restrain future misconduct % that perpetrator" to create a s%stem of deterrents to other

potential perpetrators" and, finall%, to otain retriution for the crime that has een

committed.


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'otice that some guaranteed protections appl% prior to an% arrest eing made (e.g., free

from unreasonale searches$.


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*re&trial discover% is not allowed in all cases.


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Eost civil cases allow pretrial discover%.

The following 3uote is from Law 101 (4. A. /oche, 5phin *ulishing, 0667, pg. 2B$:

ith respect to civil litigation, discover% is designed to allow each part% to as) the other

part% what the% )now aout the claim chargeG that has een asserted, who an% relevant

witnesses ma% e, and to identif% an% relevant documents. C the overall purpose of this

discover% process is to ma)e sure that each side has ample opportunit% to discover the

claims or defenses of the other part% so that at the time of trial, each part% is full% aware of

what the other intends to present.

The following 3uote is from Law 101 (4. A. /oche, 5phin *ulishing, 0667, pg. @0$:

*retrial discover% is onl% allowed in some criminal prosecutions.G The discover% that is

allowed in a criminal case is consideral% more limited than what is allowed in a civil case.

n a civil case, the prevailing philosoph% is that a full disclosure of the facts and full

discover% of the strong points and wea) points of the other part%9s case is desirale in

order to allow the parties to ma)e an intelligent decision as to whether the case should esettled and, if so, how much it should e settled for. n the area of criminal law, the

prevailing philosoph% is that too much discover% is not a good thing ecause the

information gathered % the defendant could conceival% e used to intimidate witnesses

and to otherwise og down the criminal justice s%stem. As such, the amount of discover%


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allowed in a criminal case is t%picall% limited compared to what is allowed in a civil case.


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5ee following slides for definitions.


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rit + a legal order


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5ee following slides for eplanation.


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The aove due process clause in the 4ill of /ights is#was narrowl% interpreted as appl%ing

onl% to federal issues (not state issues$. This interpretation, prior to the passing of the 17th

Amendment, allowed states to enact laws which infringed on the right of due process.

Heep in mind that the 4ill of /ights as a whole, not just the 8th Amendment, was viewed as

restricting federal power, not the power of the states. *resentl%, all of the rights

enumerated in the 4ill of /ights appl% at the state level.


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The process#procedure of litigation in the nited 5tates is intended to provide the stated

due process, i.e. an opportunit% for a person to receive notice of the claims against them

and to answer those claims.


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US Legal System 3 - Litigation - 2015

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