Civil Procedure

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Civil Procedure

• PSCI 2481

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Their Legal Options?

• What would happen if the Giant sued Jack for his
  trespass and the resulting damages? (Or should
  Jack sue the vendor of the magic beans that got
  him into trouble with the Giant? Or Jacks
  neighbors sued Jack when the beanstalk fell on
  their homes?)

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• Or how about if the wicked step-mother could sue
  Cinderella for damages to her daughters chances
  with the Prince?

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• Or if the first two pigs could sue the wolf for
  the damages he does to their homes?

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An Evolving Lawsuit
Grievance
Claim
Dispute
Lawsuit
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Civil Litigation Research Project

• 40 of Americans have had a significant grievance
  (1000) in the last 3 years.
• 25 of these people hired an attorney
• 11 filed legal papers
• 1 went to trial

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What Types of Problems to People Bring to Lawyers?

• Execute a will 79
• Obtain Divorce 77
• Buy Property 40
• Personal Injury 39
• Difficulty w Govt. Agency 12
• Consumer Problem 10
• Violation of Constitutional Rights 10
• Property Damage 5

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Whats the alternative?

• Accept a small loss
• Leave to scene of your troubles
• Engage in private negotiation/compromise
• Harass or commit violence

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Examples

• Friendswood Exxon truck repairs
• Boulder dentist bad crown
• Katy apartment complex - leaks
• Safeway/Perrier facial injury
• Value of the attorney assessment of value of
  the claim as a legal issue.

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Going to Court

• Most people dont get there but if you do
• Most people need an attorney to handle
• Procedures
• Official Language
• Interpretations of Law
• (It is possible to go pro se as your own
  attorney but it is difficult)
• Indigents may qualify for legal assistance.
  (Guaranteed in criminal cases, not in civil.)

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Costs of Going to Court

• (for lawyers, filing fees and court costs)
• Psychological costs (stress, anger, fear)
• Time and energy

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Finding an Attorney

• Word of Mouth
• Yellow pages
• Internet
• Local Bar/Legal Services
• Lawyer Referral
• Company or Union Legal Plan

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First Steps

• An initial consultation
• Negotiation of fees
• Retainer
• Flat rate
• Hourly rate
• Contingency fee

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Deciding to File a Lawsuit

• Are there facts or data available to support the
  claim? (Can the facts be proven?)
• Does the client have a cause of action?
• Is the case being filed within time limits?
• Can the defense arguments be rebutted?
• Is this financially worthwhile?
• for the client?
• For the attorney?
• If the answer to all of these questions is
  YES, then legal action can be worth pursuing.

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Other Key Issues

• Justiciable
• Is there a case or controversy?
• Is the dispute moot? Is it ripe?
• Does the case raise political questions?
• Standing
• Do the parties have standing?
• Is the defendant the proper person?
• Jurisdiction?
• Federal or state case?
• Proper venue?
• Statute of limitations?

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Starting the Lawsuit

• Plaintiffs Attorney
• Prepares the complaint
• Delivers the complaint to the Courthouse
• Clerk of the Court
• Files Complaint
• Assigns a docket number and judge
• Issues summons and returns summons to the
  plaintiffs attorney
• Plaintiffs Attorney
• Delivers summons and complaint to defendant, or
  gives the summons complaint to a marshall,
  sheriff or process server to be delivered to the
  defendant.
• A signed copy of the summons must be returned to
  the courthouse to indicate the defendants
  receipt of the complaint.

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Wyle E. Coyote vs. ACME
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Deciding to Respond to a Lawsuit

• Questions
• Am I legally liable?
• Have I fulfilled my legal liability? (e.g., paid
  worker compensation to an injured employee)
• Do I have any continuing moral or social
  obligations to the plaintiff?
• What is the probability of successful litigation?
• Is it economically more reasonable to concede
  than to fight this lawsuit?

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Responding to the Complaint

• Do Nothing
• File Motions (prior to answering the complaint)
• File a motion requesting dismissal of the
  complaint (e.g., venue, jurisdiction, timeliness)
• File a motion requesting that the court order an
  amendment to the complaint
• more definitive statement (need information)
• to strike (remove scandalous material from
  documents)
• File an Answer
• Admit to the allegations in the complaint
• Deny the allegations in the complaint
• Assert defenses to the allegations in the
  complaint
• Admit to insufficient knowledge to form any
  opinion about the complaint
• Countersue!

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ACME Responds
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Summary I

• Grievance
• Claim
• Dispute
• (attempt settlement)
• Complaint
• (attempt settlement)
• Answer
• The PLEADINGS are now complete.

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The Pre-Trial Phase
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Discovery

• Do I need additional information to continue
  participating in this lawsuit?
• Is information available?
• Is it relevant?
• Is it protected?
• Is it necessary to prove my case?
• Is it unavailable without the use of discovery
  tools?
• In other words Who has information? Where is
  it? How can I get access to it?

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Discovery Tools

• Depositions
• Written Depositions
• Interrogatories
• Production of Documents
• Access to Premises
• Written Request for Admission
• Physical and/or Mental Examinations

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The Deposition

• Notice sent to all parties
• Subpoenas issued. Orders to 3rd parties requiring
  them to appear.
• Examination (Questioning) of person with
  information
• Transcription by court reporter
• Signed by witness
• Used to contradict testimony at trial
• Used in case of absence, illness, or death

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The Purpose of Discovery

• Acquire Information (so as not to be blindsided
  at trial and to stimulate settlement)
• Narrowing of the issues
• Stipulate (Agree on) facts prior to trial so that
  they dont have to be disputed in the courtroom.

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Summary II

• Pleadings Complete
• (settlement attempted)
• Discovery
• (settlement attempted)
• Motion for Summary Judgment
• (settlement attempted)
• Pre-trial Memorandum
• (settlement attempted)
• Conference with Judge
• (settlement attempted)
• Pre-Trial Order
• (settlement attempted)
• Placement on Trial List (Calendaring)
• (settlement attempted)
• Called for Trial

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The Pre-Trial Order

• Contentions of both parties
• Statement of stipulated facts
• Issues remaining Facts in dispute
• Issues remaining Legal issues in dispute
• List of exhibits
• List of witnesses
• Estimated trial length
• Ready for Trial certification

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How far do small civil lawsuits go in Colorado?

• Default Judgment 30
• Summary Judgment 3
• Dismissed by Court 5
• (Failure to Prosecute)
• Bankruptcy 5
• Settlement 45
• Trial 5
• In Progress 7
• (more than 2 years)

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The TRIAL
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The Basic Structure of a Trial

• Jury Selection (optional)
• Plaintiffs Opening Statement
• Roadmap to the case
• What the Plaintiff hopes to prove
• Defendants Opening Statement (optional at this
  time)
• Alternative roadmap
• What the Defendant hopes to prove

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Jury Selection

• Voter Lists
• Jury Array Established
• Notification to Report for Duty
• Jury Panel Sent to Courtroom
• Voir Dire (Examination of jurors)
• Removal on challenge for cause
• Removal on peremptory challenge
• Petit Jury Selected

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What are the legal qualifications for jury
service (in Colorado)?

• You must be 18 years of age or older.
• You must live in the county or municipality that
  summoned you.
• You must be a United States citizen.
• You must read, speak, and understand English.
• You must not have served on a jury for five or
  more days in the past 12 months.

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• You must not be solely responsible for the daily
  care of a permanently disabled person living in
  your home.
• You must not have a physical or mental disability
  that would prevent your ability to serve as a
  juror.
• If you do not qualify to serve because of any of
  the reasons listed above, you should discuss your
  situation with the jury commissioner. You may be
  required to provide written proof of
  disqualification. By law, there are no economic,
  age-related, or occupational exclusions from jury
  service.

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The Basic Structure of a Trial

• Plaintiffs Case
• Examination ( Cross-examination) of Witnesses
• Presentation of Physical Evidence
• Conclusion
• Motion for Non-suit
• Motion for Directed Verdict

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Examining a Witness

1. Direct Examination (testimony of presumptively
   favorable witness)
2. Cross-Examination (questioning of the witness by
   the opposition)
3. Re-Direct (further questions by attorney to
   resurrect favorable witness if necessary)
4. Re-Cross (further questions by opposition to
   damage witness after redirect)

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The Basic Structure of a Trial

• Defendants Case
• Examination ( Cross-examination) of Witnesses
• Presentation of physical evidence
• Conclusion
• Motion for Directed Verdict

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The Basic Structure of a Trial

• Defendants Closing Argument
• Plaintiffs Closing Argument
• Judges Instructions to the Jury

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The Judge Instructs the Jury

• On procedure
• Presumption of innocence (criminal only)
• Determination of facts
• Admissibility of evidence
• Credibility of witnesses
• Reasonable inference from facts and testimony
• Standard of proof

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The Judge Instructs the Jury II

• The Verdict
• Special vs. General Verdict
• Identity,
• mental state,
• actions
• circumstances

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The Basic Structure of a Trial Jury Deliberation
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The Verdict
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Wait! Its not over yet.

• Legal Manuvers
• Motion for Judgment N.O.V
• Motion for a New Trial

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The Final Word

• Judgment
• To the loser goes the court costs.
• The court will enforce the jurys decision if
  the jury determines an award is appropriate.
  This could be monetary (1 to 100,000,000,000)
  or non-monetary (e.g. Brittany loses custody of
  her children).

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Fight versus Truth?

• What do you think? Is this a good way to run a
  trial?
• Should it be adversarial with lawyers on both
  sides? Or should we set aside all this fighting
  and maneuvering to let the judge run the
  investigation?