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Legal Grind® presents

The Little Law Book

by Miriam Kurtzig Freedman, J.D
Illustrations by Daphne San Jose

More Key Concepts in Civil and Criminal Law


Basic Procedure in a Civil Case

Procedures in Civil Case drawing

Tom, a wholesaler, and Ann, a retailer, enter into a contract for the sale of spring clothing for Ann's store.

Tom breaches (fails to carry out) the K and doesnít deliver the clothing on time. Ann starts a lawsuit to get damages for the loss sustained because of Tomís breach. Below is a summary of the steps that may be used in the civil lawsuit. Ann is the Π; Tom, the ∆. Please note that these procedures are very general; they differ from state to state and from situation to situation.

  1. An event occurs. Note: Not all wrongs have legal remedies! Ann needs to be sure she has a cause of action recognized by law.
  2. Lawsuit begins by Πís notice to ∆, including a complaint and summons.
    These are vital to the American legal system, as they embody the very essence of due process. In most cases Tom (∆) has a right to notice of the suit against him, so he can prepare to challenge it. An exception may be if Ann attaches Tomís house, bank account, or other property before Tom gets notice of that action. Attachment is a legal process by court action, for taking property into the court's custody. It may be used if deemed necessary to assure payment of the judgment should Ann ultimately win.
  3. Other suits may emerge from this lawsuit. Here are some examples:
    1. Countersuit: Tom, the ∆ in Ann's lawsuit, may sue Ann. For example, he may sue for the money Ann still owed him from the winter shipment. In this case Tom will be the Π and Ann, the ∆.
    2. Cross claim: In a lawsuit with more than one Π or ∆, a claim by one party against a coparty. (A Π suing another Π.)
    3. Third-party complaint: A complaint filed by the Π against a party not involved in the case (the third party) alleging that the third party may be liable for the damages that the Π might win against the ∆. It can get complex!
    4. Class action lawsuit: An action that needs court approval and must follow specific rules. It is brought by one or more members of a large group of Πís or against a large group of ∆ís. All members of the class must receive notice of it; all members (unless they opt to remove themselves from the class) are bound by the judgment. These rules in the federal courts are found in Rule 23 of Civil Procedures. Most state courts have similar Rule 23 class action suits.
      For example, a few stockholders in a corporation may sue on behalf of all stockholders whose stock value fell because of an insider-trading deal.
      Other examples of class-action suits include those involving environmental pollution or cases in the consumer protection area (for example, all consumers harmed by the use of a product).
      The purpose of countersuits, cross suits, third-party suits, and class-action suits is to avoid multiple litigation by getting everyone in court at the same time.
  4. Trial preparation
    1. Pretrial discovery:
      Procedures by which the parties to a lawsuit may obtain relevant information to prepare their cases. The purpose of discovery is twofold: to produce more efficient (and quicker) trials and/or to produce settlements, as each side can assess the strength and weakness of his/ her case.
      Discovery rules are extensively defined in both the Federal Rules (for federal cases) and the various state rules.
      lnterrogatories: Written questions about the case submitted by one party to the other or to a witness. These are answered under oath. (The person answering the questions signs a statement that the answers are true.)
    2. Deposition:
      Oral questions asked by one party of the other or of a witness. The party deposed is the ìdeponent.î The deposition is conducted under oath outside the courtroom (usually in a lawyerís office). A word-for- word record is made and written, called the 'transcript.'
      Request for production:
      Request for documents, photographs, or other tangible materials in the possession of a party by the other party. The requesting party may seek to inspect, copy, and review this material.
      Different state rules exist about the need for a court order for such a request.
    3. Physical examination of a witness:
      Permitted only when the condition of a witness is critical to the case, as following a car accident or medical procedure. The other partyís medical or other expert performs it.
      Again, states differ on the need for a court order.
    4. Request for admissions:
      An admission is a voluntary statement that something is true. Written statements of facts submitted by one party to the other, which he must admit or refute. Those statements admitted are taken as true and need not be proven at trial. In some states, if the party fails to respond or refute the statements, the statements are deemed to be admitted.
    5. Sanctions:
      A penalty for failing to comply with a discovery order. The sanction may be a fine or imprisonment. Several well-publicized case have incarcerated parents for failing to inform the court of the whereabouts of their children. In these cases, often dealings with suspected child abuse the parents claimed that they feared for the child's safety if his whereabouts were made known.
    6. Contempt order:
      Sanctions may be ordered when a person disobeys a court order or in other ways interferes with the dignity of the court.
  5. Settlement: The parties may, at any time, attempt to compromise the case; to settle it.
  6. Pretrial conference: A meeting called by the judge between the lawyers for both parties, which attempts either to settle the case or to narrow the issues for the trial. Most cases settle at some point before a trial. If they didnít, our court dockets would be even fuller than they are! In this way the judicial system relies on the fact that most cases never proceed to trial.
    Summary judgment: Either party may, before the trial begins, move for a summary judgment. If granted, this means that the case may be decided on the basis of the law involved, and that no facts need be presented. Or put another way, even if one partyís facts are totally believed as true, it would make no difference; the result is already knowable by applying specific laws. The judge may then apply the laws and issue a summary judgment.
  7. Trial: The court proceeding to determine whether the Π or the ∆ has met its burden of proof by a preponderance of evidence. Note how different this is from a criminal case, where only the prosecution has the burden of proof against the ∆. There, the ∆ does not need to prove he is not guilty.
    The Seventh Amendment of the Constitution grants the right to a trial by jury in a civil case involving over twenty dollars in controversy. In practice, however, most small cases do not have a jury trial because of the expense involved. Different states have different rules for the availability of a right to a trial by jury.
    At trial each side may present an opening statement, witnesses, documents, and other evidence. Each side may question (examine) witnesses directly, through cross-examination and rebuttal. Finally, each side may present a closing statement.
    Directed verdict: Before the verdict either side may move for a directed verdict. This means the judge finds that the party who had to prove its case (who had the burden of proof) did not even make a prima facie case. The judge may order the jury to find for the other party.
  8. Verdict: The jury renders its decision, based on the civil law standard of proof. In a jury-waived or nonjury trial, the judge renders the decision.
    Judgment n.o.v. (non obstante veredicto):
    A judgment notwithstanding the verdict. Good old Latin! Either party may move the court to grant such a judgment in a jury trial if the verdict clearly makes no sense (couldnít possibly be based on the facts presented). Then, if granted, the judge may grant a directed verdict for the moving party. As you can imagine, judgments n.o.v. are relatively rare.
  9. Appeal: Either side may request that a higher court review the trial court's verdict.
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