WELCOME TO UNIT 4! We will start at the top of the hour. Make sure your speakers are on and volume...

WELCOME TO UNIT 4!

We will start at the top of the hour.

Make sure your speakers are on

and volume is turned up.Civil Litigation and

Legal Documents

The Paralegal Professional, 3eGoldman and Cheeseman

© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights

Reserved.2

GRADINGAll grades are up within 5 days of the end of the

unit (by Sunday at midnight) with the exception

of the quizzes, tests, and exams.

Quiz, test, and exam grades are up within 7 days

of the end of the unit (by Tuesday).



Reserved.3

LATE ASSIGNMENTS

Assignments are due each week by midnight on

Tuesday.

I will no longer accept assignments after

Tuesday at midnight with the exception of very

exigent circumstances.



Reserved.4

Seminar Make-Up Assignments

If you miss seminar, your make-up assignment

must be emailed to me within one week of the

missed seminar.

The make-up assignment is explained in an

Announcement in Course Home as well as in the

Syllabus.



Reserved.5

Tonight’s Agenda Review last week – Court System Questions about Week 3 written assignment

Cover Unit 4 Material Civil Litigation Legal Documents

Review for Midterm

WELCOME BACK!

The Paralegal ProfessionalThe Paralegal Professional

Chapter 7 Chapter 7

Civil LitigationCivil Litigation



Reserved.7

Civil LitigationCivil Litigation

Involves legal action to resolve disputes between parties. In civil litigation, the plaintiff sues a defendant to recover money damages or other remedy for the alleged harm the defendant caused the plaintiff.



Reserved.8

Is there an ethical obligation not to file certain lawsuits?

Ethics



Reserved.9

What is meant by a frivolous lawsuit? Are there sanctions for filing a frivolous law suit? Explain.

Ethics



Reserved.10

PleadingsPleadings

Initiate the lawsuit Provides the Due Process notice Can consist of

Complaint Petition Cross-complaint Reply Answer Counterclaim



Reserved.11

Pleadings (cont.)Pleadings (cont.)

The plaintiff, the party who is suing, files a complaint containing the basis of the lawsuit. Filed with the court and Served with a summons on the defendant



Reserved.12


The complaint must either: Provide a general allegation of the wrongful conduct alleged (notice pleading) or

Plead specific facts alleged, called fact pleading.



Reserved.13


Time: Individual court rules provide a time within the initial complaint or petition must be served;

Responsive pleading must be filed to avoid dismissal of the action or a default judgment. The responding party must file a responsive pleading (Answer) with the time limit allowed by the court.



Reserved.14


Answer: An answer is filed by the defendant with the court and served on the plaintiff. It usually denies most allegations of the complaint.



Reserved.15

HYPO: Tenant is injured when he falls down a staircase and sues landlord for his damages incurred as a result of the fall. At the time tenant owes three months rent. The landlord should include in his answer (1) his response to the averments of the complaint, (2) an affirmative defense that the tenant assumed the risk of falling as he was carrying a load of boxes, and (3) a cross-complaint for the back rent.

HYPO - Answer



Reserved.16


Cross-Complaint: A cross-complaint is filed and served by the defendant if he or she countersues the plaintiff. The defendant is the cross-complainant and the plaintiff is the cross-defendant. The cross-defendant must file an Answer.



Reserved.17


Intervention: A person not named in a lawsuit may have an interest, and seek to become involved by way of an intervention

Consolidation: If there are several suits that duplicate facts & legal issues, they may be consolidated in the interests of judicial economy



Reserved.18

In our injured tenant v. landlord above, the bank holding the mortgage may intervene in order to collect the back rents which have been assigned to the bank to cover the mortgage payment. Other tenants also injured on the staircase may consolidate their claims with our tenant.

HYPO - Intervention



Reserved.19


Statute of Limitations: The period of time within which a suit must be brought

Varies by jurisdiction, and by the nature of the claim

Will begin to “run” when the plaintiff knows or should have known of the injury Date of the accident, breach Date of majority of the plaintiff



Reserved.20

Our tenant described before was injured on August 15, 2006. Our state’s statute of limitations for a personal injury lawsuit is two (2) years from the date of injury. Tenant must bring his lawsuit on or before August 15, 2008. If he files suit on August 16, 2008 the lawsuit will have to be dismissed as his claims will be barred by the statute of limitation.

What purpose do statutes of limitations serve?

HYPO – Statute of Limitations



Reserved.21

E-filings in CourtE-filings in Court

Paralegals are at the forefront of e-litigation where many of the documents filed in court are done electronically. The technology currently is available for implementing electronic filing—e-filing—of pleadings, briefs, and other documents related to a lawsuit.



Reserved.22

Additional Search TechniquesAdditional Search Techniques

Concept searching Compares word patterns, incorporated with Boolean searches

Paper reviews (converted into hard copy & reviewed)

Electronic reviews Look at “loose” electronic files in their “native” format

Use a local litigation database Work with an online document review repository hosted by an e-discovery service provider



Reserved.23

DiscoveryDiscovery

Discovery is a step in the litigation process where the plaintiff and the defendant share information relevant to their dispute.



Reserved.24

Discovery (cont.)Discovery (cont.)

The purpose of Discovery is to: Evaluate the client’s case Understand strengths/weaknesses of the opponent’s case

Preserve testimony Potentially facilitate settlement Learn information to impeach a witness



Reserved.25


Depositions: Oral testimony given under oath to either a party or a witness. Purpose:

Preserves evidence Helps prepare for trial Creates a sworn body of testimony which can be used to impeach the witness on the stand if testimony changes



Reserved.26


Interrogatories: Written questions May be highly detailed Propounded only to parties to the suit

Must be answered in writing, unless an objection is made to the question

Answered under oath



Reserved.27


Production of Documents: documents under the control of one party may be requested by the other side

Used in preparing the case Usually provided by the party in control, but the work may shift to the requesting party to examine them on-site if their production would Be too voluminous Disrupt ordinary business activities In permanent storage



Reserved.28


Physical exams are used to determine the extent of injuries when that is the basis for the claim (personal injury, workers’ compensation)

Mental exams may be ordered if mental trauma is the basis for damages (infliction of emotional distress) or if competency is an issue



Reserved.29


Requests for Admission: Written requests issued by one party to the lawsuit to the other asking that certain facts or legal issues be admitted as true.

E-Discovery: Much evidence is in digital form. A case can hinge on a party’s ability to conduct electronic discovery.



Reserved.30

Pretrial MotionsPretrial Motions Motion to dismiss

Demurrer (12(b)(6) motion) – there is no legal claim

Made before the defendant answers If granted, Δ need not answer If denied, Δ is given additional time to answer

If granted, plaintiff may be given time to amend the complaint

Failure to do so will result in a dismissal of the suit



Reserved.31

Pretrial Motions (cont.)Pretrial Motions (cont.)

Motion for Judgment of the Pleadings If all the facts alleged in the pleadings are true, movant would win

Summary Judgment motion If there are no factual issues, there is no need for the trier of fact (usually jury), and the judge, as the trier of law, can make a decision without a trial

Additional affidavits of fact may be considered, but they cannot give rise to a dispute, since that would defeat the motion



Reserved.32

Settlement ConferenceSettlement Conference

Pretrial hearing Facilitates settlement Identifies the trial issues Establishes timelines for motions & discovery

May result in diversion into ADR



Reserved.33

TrialTrial

A Right guaranteed by the Seventh Amendment to the U.S. Constitution

Jury trial

Judge – trier of law

Jury – trier of fact

Bench trial

Judge – trier of law

Judge – trier of fact



Reserved.34

Trial (cont.)Trial (cont.)Stages of TrialStages of Trial

Jury selection (voir dire) Opening statements Plaintiff’s case Defendant’s case Rebuttal & rejoinder Closing arguments Jury instructions (charge to the jury)

Jury deliberations Judgment



Reserved.35

Trial (cont.)Trial (cont.)Jury SelectionJury Selection

The array (jury pool) is called Prospective jurors fill out a questionnaire

Examined by lawyers and/or judge as to possible bias in the case

May be excused “for cause” (potential or actual bias) or by a peremptory challenge (based on case strategy)

Jurors may be isolated from outside influences (sequestered) if the judge feels it’s necessary



Reserved.36

Trial (cont.)Trial (cont.)

Opening Statements – summary of the issues that will be presented

Plaintiff’s case -- attorney calls witnesses to give testimony & introduce evidence Defendant’s attorney has an opportunity to cross-examine within the scope of the direct exam

Plaintiff’s attorney can ask questions about matters that fall within the scope of the cross-examination

Plaintiff must meet the burden of proof



Reserved.37


Defendant’s case Rebut plaintiff’s evidence Prove any affirmative defenses asserted Prove any allegation made in the cross-complaint or counterclaim

Rebuttal witnesses are called by the plaintiff to answer defendant’s claims

Rejoinder witnesses are called by the defendant to answer plaintiff’s rebuttal



Reserved.38


Closing Arguments are made at the end of the presentation of evidence Each attorney makes an argument to convince the jurors to accept his or her side of the story

This is persuasive argument, not evidence

Jury Instructions are tendered by each side, chosen by the judge, who reads them to the jury, explaining the law to be applied to the facts



Reserved.39


Jury deliberations are conducted outside of the courtroom, and continue until the jury has reached a verdict or they decide they are unable to do so

The judge hears the verdict & enters a judgment Based upon the jury verdict, or N.O.V., notwithstanding the verdict (which cannot, as a matter of law, be upheld), or

Remittitur (or additur), having to do with the amount of damages determined by the jury



Reserved.40

AppealAppeal

Once there is a final judgment, the losing party can appeal if He or she is the defendant in a criminal case

There is a timely notice of appeal filed There are grounds for appeal (errors of law)

The appeal usually consists of written briefs of law & possibly oral arguments

Usually heard by three judges



Reserved.41

Appellate DecisionsAppellate Decisions The court can affirm the lower court’s decision, rejecting the claim made by the appellant

The court can determine that the appellant’s claim was valid, and that errors occurred. They can reverse the outcome and send the matter back to the trial court (remand) for retrial

The appellate can only review the law, not the factual findings of the lower court

HAVE A GREAT WEEK!

GOOD LUCK ON YOUR MIDTERM!

WELCOME TO UNIT 4! We will start at the top of the hour. Make sure your speakers are on and volume...

Documents

Transcript of WELCOME TO UNIT 4! We will start at the top of the hour. Make sure your speakers are on and volume...