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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).
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
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.
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
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.
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
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
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
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.
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.8
Is there an ethical obligation not to file certain lawsuits?
Ethics
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.9
What is meant by a frivolous lawsuit? Are there sanctions for filing a frivolous law suit? Explain.
Ethics
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.10
PleadingsPleadings
Initiate the lawsuit Provides the Due Process notice Can consist of
Complaint Petition Cross-complaint Reply Answer Counterclaim
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
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
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.12
Pleadings (cont.)Pleadings (cont.)
The complaint must either: Provide a general allegation of the wrongful conduct alleged (notice pleading) or
Plead specific facts alleged, called fact pleading.
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.13
Pleadings (cont.)Pleadings (cont.)
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.
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.14
Pleadings (cont.)Pleadings (cont.)
Answer: An answer is filed by the defendant with the court and served on the plaintiff. It usually denies most allegations of the complaint.
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
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
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.16
Pleadings (cont.)Pleadings (cont.)
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.
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.17
Pleadings (cont.)Pleadings (cont.)
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
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
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
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.19
Pleadings (cont.)Pleadings (cont.)
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
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
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
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
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.
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
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
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.23
DiscoveryDiscovery
Discovery is a step in the litigation process where the plaintiff and the defendant share information relevant to their dispute.
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
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
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.25
Discovery (cont.)Discovery (cont.)
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
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.26
Discovery (cont.)Discovery (cont.)
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
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.27
Discovery (cont.)Discovery (cont.)
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
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.28
Discovery (cont.)Discovery (cont.)
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
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.29
Discovery (cont.)Discovery (cont.)
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.
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
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
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
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
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.32
Settlement ConferenceSettlement Conference
Pretrial hearing Facilitates settlement Identifies the trial issues Establishes timelines for motions & discovery
May result in diversion into ADR
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
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
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
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
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
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
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
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
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.37
Trial (cont.)Trial (cont.)
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
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.38
Trial (cont.)Trial (cont.)
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
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
Reserved.39
Trial (cont.)Trial (cont.)
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
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
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
The Paralegal Professional, 3eGoldman and Cheeseman
© 2011, 2008, 2003, Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights
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!