Transcript Clarkson, Business Law, 11th Ed 2009

BUSINESS LAW: Text & Cases —
Legal, Ethical, International, and
E-Commerce Environment 11th Ed.
Chapter 3
Court Procedures
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a part of South-Western Cengage Learning.
Introduction
 American and English court systems
follow the adversarial system of justice.
 Each client is represented by an attorney
although a client is allowed to represent
herself (called “pro-se”).
 The American Court system follows
procedural rules that ensure due process.
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Procedural Rules
 Court systems developed around the
common law concept of “due process”
which requires adequate notice and a fair
and impartial hearing.
 For example, all federal trials are
governed by the Federal Rules of Civil
Procedure and Federal Rules of Evidence.
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First Step: Consulting an
Attorney
 Generally, the first step in litigation is
contacting any attorney to seek qualified
legal advice.
 Types of Attorneys’ Fees (hourly vs.
contingent fee).
 Settlement Considerations.
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Pre-Trial Procedures
(Stages of Litigation)





Pleadings.
Discovery.
Pre-Trial.
Trial.
Post-Trial.
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Litigation- Pleadings
1st
2nd
3rd
4th
5th
Pleadings // Discovery // Pre-Trial // Trial // Post
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st
1 Stage: The Pleadings
 File Petition/Complaint.
– Court acquires jurisdiction over subject matter
and Plaintiff.
– Facts: What happened.
– Prayer: Court relief.
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Complaint
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Pleadings-Service
 Defendant served with Complaint and
Summons.
 Court acquires Personal Jurisdiction over
Defendant (person or corporation).
 Corporate Defendants served via Registered
Agent. If the Defendant is out-of-state, Court
can acquire jurisdiction by “long-arm” statutes.
– CASE 3.1 Cruz v. Fagor America, Inc. (2007).
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Summons
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Pleadings-Answer
 The Answer is the Defendant’s response
to the allegations stated in the Plaintiff’s
Complaint.
 In the Answer, the Defendant must
specifically admit or deny each allegation
in the Complaint.
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Pleadings-Answer
Defendant’s Response (Answer):
– States General Denial.
– May Move for Change of Venue.
– May Allege Affirmative Defenses .
– May Counter-Claim against Plaintiff.
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Answer-Affirmative Defense
Defenses in which the defendant
essentially claims that even if all of the
plaintiff’s allegations are true, the plaintiff
cannot win because there is a more
powerful law on the defendant’s side that
will allow the defendant to win.
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Answer- Affirmative Defense
 Fraud is an example of an affirmative
defense that might be asserted in a breach
of contract case.
 Burden of proof is on the Defendant to
show fraud actually took place.
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AnswerCounter or Cross Claims
A counterclaim is a lawsuit filed by the
Defendant(s) against the Plaintiff, in
response to the original complaint. A
cross-claim is against a co-Plaintiff or coDefendant.
Counter Claim
P
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VS.
D1
CrossClaim
D2
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Answer-Motion to Dismiss
Defendant can move the Court to dismiss
the Action for various reasons, such as:
– The Court lacks jurisdiction.
– The Plaintiff has failed to make all of the
allegations, in his Complaint, that the law
requires (i.e., the plaintiff has failed to state a
cause of action).
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Litigation- Discovery
1st
2nd
3rd
4th
5th
Pleadings // Discovery // Pre-Trial // Trial // Post
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nd
2 Stage: Discovery
Discovery is the process by which parties
obtain information from the opposing party
prior to trial.
– Depositions & Interrogatories.
– Requests for Admissions.
– Requests for Production Of Documents,
Object and Entry.
– Electronic Discovery.
– CASE 3.2 Computer Task Group, Inc. v.
Brothby (2004).
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Litigation- Pre-Trial
1st
2nd
3rd
4th
5th
Pleadings // Discovery // Pre-Trial // Trial // Post
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rd
3 Stage: Litigation-Pretrial
 Pre-Trial Conference.
 Mediation-Arbitration.
 Disposition Without Trial.
– Default Judgments.
– Dismissals (With/Without Prejudice).
– Summary Judgment.
– Settlement.
 Pre-Trial Orders (ex:TRO, In Limine).
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Pre-Trial Dismissals
and Judgments
 Motion to Dismiss.
 Motion for Judgment on Pleadings.
 Motion for Summary Judgment.
– Accompanied by affidavits. No jury.
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Litigation- Trial
1st
2nd
3rd
4th
5th
Pleadings // Discovery // Pre-Trial // Trial // Post
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The Trial
 Trial is fundamentally an evidence
presentation and authentication
procedure.
 To prevail in a civil trial, Plaintiff must
introduce a preponderance of competent
evidence with respect to each disputed
allegation in order to prove it.
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The Trial
[2]
The Defendant will “object” to Plaintiff’s
evidence and the judge will rule on each
objection. If the judge “overrules” the
objection, the evidence is admitted for the
jury to consider. If the judge “sustains” the
objection, the evidence is not admitted into
the trial.
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The Trial [3]
 Bench Trial (no jury).
 Jury Selection.
– Voire Dire.
– Challenges/Pick the Jury.
– Impanel Jury.
– Alternate Jurors.
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The Trial [4]
 Opening Statements.
 Plaintiff’s Case--Evidence:
– CASE 3.3 Novak v. Tucows, Inc. (2007).
– Witnesses- Direct Examination vs. Cross
Exam.
– Generally, Hearsay evidence is not admissible.
Admissibility of evidence decided by judge.
Parties object to admission of evidence and
judge decides, as a matter of law, whether
evidence may be admitted into the trial.
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The Trial [5]
 Plaintiff’s Case (cont’d).
– Party may impeach the testimony or credibility
of opposing witness by showing prior
inconsistent statements and/or Perjury.
 Defendant’s Case.
 Closing Arguments.
 Jury Instructions and Deliberations.
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The Trial [6]
 Verdict.
– Criminal case--burden of proof is “beyond a reasonable
doubt” and the verdict (for guilty or acquittal) must be
unanimous. If not, mistrial/hung jury.
– Civil Cases—generally, burden of proof is by
“preponderance” of the evidence and a majority of
jurors must agree on verdict. If not, then mistrial/ hung
jury.
 Judgment is the Court’s acceptance and
recording of the jury’s verdict.
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Litigation- Post Trial
1st
2nd
3rd
4th
5th
Pleadings // Discovery // Pre-Trial // Trial // Post
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Post Trial Motions
 Once the trial is concluded, a dissatisfied
party may:
– File a Motion for a New Trial.
– Ask that the judge enter a judgment contrary
to the verdict (N.O.V.) rendered by the jury.
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The Appeal
 A party may appeal the jury’s verdict or any legal
issue, motion or court ruling during the trial.
 The party filing the appeal (Appellant) files a brief
that contains a short statement of the facts,
issues, rulings by the trial court, grounds to
reverse the judgment, applicable law and
arguments on Appellant’s behalf.
 Appeals court can affirm (agree with) or reverse
(disagree with) the lower court’s decision.
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Enforcing the Judgment
 Once a judgment becomes final (i.e.,
subject to no further judicial review) the
defendant is legally required to comply
with its terms.
 Defendants who will not voluntarily comply
with a judgment can be compelled to do so
by seizure and sale of the Defendant’s
assets.
 Writ of Execution.
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