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A roadmap to American civil litigation
Transcript of A roadmap to American civil litigation
You need a lawyer for his expert knowledge of the legal system
Mind lawyers’ professional responsibilities
duty of loyalty
duty of due diligence Consider first whether this accident might enter the formal legal system.
settlement agreement Where Can the Suit Be Brought?
Michigan or Minnesota?
cheaper & more convenient
State Court or Federal Court?
tactical factors Step #2 Forum shopping
Peter’s lawyer must find out whether she can bring his suit in one or more state courts or in a federal court. Step #3 Subject matter jurisdiction
Subject matter jurisdiction is the term used describe whether a court can hear a particular type of dispute.
general jurisdiction vs. limited jurisdiction Can Peter bring his case in a federal court? It depends on:
the nature of the claim
the citizenship of the parties to the suit Step #4 Personal jurisdiction
The federal court in that state must have the power to render a judgment against this particular defendant.
Traditionally, obtaining personal jurisdiction over a defendant required service of process on such defendant within the particular state.
Today, courts may hold that persons who engaged in certain types of activities in a state are subject to jurisdiction for claims arising from those activities. Step #5 Venue
The term “venue” means place of trial, and venue rules are an attempt to allocate business among those courts that have both subject matter jurisdiction and Personal jurisdiction.
A suit lies open to a defendant’s challenge unless the court has subject matter jurisdiction, personal jurisdiction and venue.
Most state venue rules permit the case to be brought where either party resides, where the claim arose, or where a defendant is doing business. Step 6 Complaint & Service
Once Peter’s lawyer has decided where to bring the suit, she must begin the action and notify the defendant that it has begun.
draft a complaint
notify the defendant
There are two basic means of notice.
wavier of service
summons Step 7 Response
Generally, that response takes one of two forms: a motion attacking the summons and complaint in some way or a responsive pleading (usually called an answer).
motions are simply requests to the court that it do something
answer is a response to the allegations of the complaint If the defendant does not make a pre-answer motion or if the court denies a pre-answer motion, the defendant must then answer.
generally, the defendant can include any or all of the possible responses in his answer. Amendment of pleadings
leave to amend shall be freely given when justice so requires Step #8 Parties to the lawsuit
Who may be joined as a plaintiff or defendant in the lawsuit?
Who must be joined as a plaintiff or defendant in the lawsuit?
Are there persons who are not in the lawsuit can be joined as parties if they so choose?
May some of the parties in the lawsuit represent others who are not in the lawsuit, so that the final decision will determine the rights of all? Step #9 Discovery
The discovery rules, which compel the parties and others involved in a lawsuit to cooperate in the unearthing of factual background, are a major innovation of modern procedure. There are five primary means of discovery:
production or inspection of documents
physical and mental examinations Step #10 Summary judgment
The Federal Rules of Civil Procedure have adopted the device of summary judgment to provide a mechanism for deciding cases for which a trial is not necessary and would serve no purpose.
The court would reason that summary judgment is not for weighing evidence but for determining whether there is any evidence to weigh; the conflicting evidence would establish that there was an issue for trial. Step #11 Trial
Notify the lawyers of the trial date
Select the jury
From those called to hear the particular case, twelve or six will be seated in the jury box.
The actual trial starts
In trial, the parties’ lawyers typically take turns at each stage of the proceeding.
Losing party’s hope
jnov, or a new trial, or both Step #12 Formal adjudication
A plaintiff who brings a case, or a defendant who defends one, should not be able to try again if he is not satisfied with the result. This principle is often called “res judicata”.
issue preclusion Step #13 Appeal
A losing party is permitted to appeal an adverse judgment of the trial court to a higher court.
when in the course of a given lawsuit an adverse ruling can be appealed
how closely an appellate court will scrutinize any alleged error.