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20190406231405civil_procedure1.ppt
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Civil Procedure
Stages

  • 1 exploratory stage
  • Exploring whether a law suit
  • 2 pleadings stage
  • Complaint & answer
  • 3 pre trial stage
  • Discovery
  • Pretrial motion/hearings
  • Settlement

4 trial stage

  • litigation of the facts
  • 5 post trial stage
  • Post trial motions & appeal

Exploratory stage

  • 1 the triggering event
  • 2 ∏ meets w/ lawyer
  • Intake interview—whether grounds for a law suit
  • Lawyer conducts minimal investigation
  • 3 ∏ meets w/ lawyer again
  • Contract for services
  • By the Hr.
  • Contingency
  • Retainer
  • Flat fee
  • 4 lawyer agrees to file a suit

Salmon v. Atkins (Ark. 2003)

  • Facts:
  • George Brown died & Solman (nurse) who cared for him during his illness believed she was married to him & wants a piece of the estate. On June 19, Solman signed a contingency contract w/ atty. Atkins.—50% if successful, $0 if not. July 31, atty. Asks Solman to sign petition to file suit. Solman balked took petition but then decided to file pre se. Atty. Sends bill for 48 hrs. of time. She refuses
  • Issue: when does a fired contingency atty. get money:

Salmon v. Atkins

  • Resolution:
  • When fired
  • Reasoning
  • Some states= when contract is fulfilled
  • Other states=when fired
  • Doctrine=client can fire atty. at any time w/ no reason but atty. is entitled to reasonable value of services rendered up to that point

Pleadings stage

  • 1) ∏”s lawyer files a complaint—see p.159
  • Complaint Establishes/ alleges:
  • subject matter jurisdiction
  • in personam jurisdiction
  • Alleges facts from ∏”s perspective
  • Asks the court for a remedy

  • 2 ∆ is served a summons (typically 120 days of filing complaint)
  • A) personal service/certified, registered mail w/ receipt
  • B) substitute service= certified mail, copy at ∆’s home w/ someone who is “responsible”.
  • C) constructive service=publication in newspaper
  • Do Dorsey v. Gregg (1988)

Dorsey v. Gregg

  • Facts:
  • ∏ filed suit against Gregg Dec. 5, 1985. ∆ is a student at U. of Oregon, member of a frat but doesn’t live in frat house.
  • Personal service attempted at frat house Dec 29-Feb 19. Next, service by certified mail to frat house, CC to dad in another city. Law allows for this procedure provided service cannot be made in any other way.
  • Judge entered default judgment
  • Issue:
  • Vacate default judgment for lack of proper service?

Dorsey v. Gregg

  • Resolution:
  • yes
  • Reasoning:
  • law requires attempt at service by all methods—mail requires service to ∆’s post office address.

Pleadings stage

  • 3) motion to dismiss, judgment on the pleadings, 12(b) motion, demurrer
  • A motion to dismiss the complaint due to defect in the complaint (jurisdiction, service process, failure to state a claim…)
  • 4) ∆’s Lawyer files an answer to the complaint (typically 60 days)—P.160
  • Answer:
  • Agrees w/ or challenges jurisdiction (subject or personal)
  • Agrees with or challenges facts as alleged in complaint
  • Establishes defenses or affirmative defenses (∆ carries burden of proof)
  • May contain a counter claim
  • Asks the court for a remedy

Pre Trial stage

  • 1) Discovery : each side gets to “discover” the other side’s case.
  • Oral depositions
  • Examination of a witness under oath; court ordered/supervised, taken by court-authorized folks; opposition lawyer is present for cross exam
  • Written interrogatories
  • Specific questions answered under oath—principals to suit only—not witnesses
  • That’s what Special Prosecutor Mueller got from Pres. Trump
  • Production of documents & exhibits
  • Requests for physical or mental examination—court ordered
  • 2) motion for a summary judgment
  • There exist no material issues of fact and the judge should decide who wins simply by applying the law to the agreed upon facts

  • Do Clement v. Alegre

Clement v. Alegre

  • Case involves abuse & obstruction by lawyers regarding the discovery process. Discovery here was written interrogatories and the lawyers made nonsensical objections and argued over terms clearly defined in statutes.
  • The other party, recover the costs of forcing compliance & a court order to comply w/ the interrogatories.

Pre Trial stage

  • 3) Pretrial conference: informal meeting between judge & attorneys to sharpen & narrow issues, negotiations to speed the trial,
  • SETTELMENT attempts
  • 4) other pre-trial motions & hearings—Summary judgment motion

Based on discovery material, there is no MATERIAL issue of fact, judge should decide who wins as a matter of law

Discuss Meyers v. Ramada Hotel

Meyers v. Ramada Inn

  • Material (the legal definition)
  • Probative=tending to (or actually) prove something of importance is true
  • Material=testimony or evidence that has significant probative value
  • There is snow on the ground is probative and material that it must have snowed last night.

Trial stage

  • Selection of a jury
  • Jury pool=thousands of citizens chosen randomly from a large universe for a court term
  • Jury panel=100s chosen randomly for potential trials during a week of the term
  • Potential jury=25-30 chosen randomly for a specific trial
  • Petite jury= 12 chosen to sit in judgment
  • Vior dir
  • Judge asks questions about familiarity w/ case or litigants—judge can discharge
  • Lawyers ask questions of specific potential jurors
  • Challenge for cause
  • Preemptory challenges—not based on race or gender

Trial stage

  • 1) ∏’s opening statement
  • 2) ∆’s opening statement—can be postponed
  • 3) ∏’s case-in-chief
  • ∏’s atty direct examines ∏’s witnesses, enters evidence
  • ∆’s atty cross examines
  • ∏ has the burden of proving facts alleged in the complaint by a preponderance of evidence

4) ∏ rests their case

5) motion for a non suit

∏ failed to carry their burden of proof

Trial stage

  • ∆’s case-in-chief
  • ∆’s attorney can open if they didn’t at start
  • Direct exam of ∆ witnesses
  • ∏ cross of ∆ witnesses
  • ∆ rests its case
  • Both sides present closing arguments ∏’s rebuttal
  • Motion for directed verdict
  • There are no remaining material issues of fact and no evidence that could justify a verdict for the non-moving party
  • Do Cody v. Atkins

Cody v. Atkins

  • Facts
  • Nov.13 1980 Atkins truck collided w/ Cody’s auto. Roads were icy , snowing but visibility was good. Neither side claims substantial injuries. Cody sued Atkins for negligence.
  • ∆ testified that roads were icy, snow on top, downhill street. He slowed from 20 MPH to 5 MPH but couldn’t avoid the accident. End of ∆’s case, ∏ moved for directed verdict-denied-case goes to jury-verdict for ∆. ∏ moves for judgment NOV & new trial—both denied
  • Issue
  • Judicial error in denying motions?

Cody v. Atkins

  • Resolution:
  • NO
  • Reasoning:
  • 1) Directed verdict-standard=no genuine issues of fact & no evidence that could justify a verdict for the non-moving party (∆ in this instance)
  • That standard is not met here
  • 2) judgment NOV-standard= absence of substantial evidence to support the verdict
  • 3) new trial-standard= would substantial injustice occur if verdict is up held

Trial stage

  • Judge’s instructions to the jury
  • Jury verdict
  • General verdict=who wins & how much$$
  • Special verdict=jury answers (yes/no) to specific questions (did ∆ behave with reckless disregard for the situation?)
  • Judgment notwithstanding the verdict (judgment NOV)
  • Reasonable people could not have reached the verdict the jury reached
  • Substantial evidence test
  • Motion for new trial
  • Interest of justice, new evidence, jury prejudice

motion for relief from judgment

new evidence, fraud

Some rules of evidence

  • All testimony (spoken words) and evidence must be relevant to be admissible
  • Relevence=Logically tends to prove or disprove an issue of fact in dispute at the trial ( look to complaint & answer for issues of fact)
  • Probative
  • Tending to (or actually) proves something important is true
  • Material testimony or evidence (necessary)
  • Relevant evidence that has SIGNIFICANT probative value is MATERIAL

Some rules of evidence

  • Evidence/testimony must be COMPETENT
  • Lay witnesses can only testify to what they witnessed (perhaps heard)
  • Expert witnesses generally have not witnessed the event; they can testify as to their opinions—requires sufficient foundation
  • Best evidence rule
  • Requires original documents rather than copies (unless the original is unobtainable).

Some rules of evidence

  • HEARSAY
  • An out-of-court statement offered for the proof of the matter asserted (offered to prove the truth of the out of court statement).
  • Reason for excluding hearsay is because it is not a witness testifying about what she saw, it is one witness testifying about what a second person said and the opposing atty can’t cross the 2nd person cause they aren’t in court.
  • May not be reliable testimony

Do question #9 on P. 185

Exceptions to hearsay

  • Exceptions (there are a lot)
  • Spontaneous utterance
  • Considered reliable testimony because the uttering person is unlikely to manipulate the words uttered
  • As in, “he said ‘oh my god. The damn gun went off by mistake and now she’s dead’”
  • While that IS hearsay testimony, it would be admitted because it is an excited utterance immediately following an event

Privileged information

Rule=any person who can provide relevant, competent,& material testimony to assist in the fact-finding process is REQUIRED to testify

EXCEPTION=Certain information cannot be revealed in the discovery process or used as evidence at trial

  • Self incrimination
  • PRIVILEGED INFORMATION
  • Dr./patient
  • Counselor/patient
  • Attorney/client (attorney work product)
  • Spousal privilege
  • Priest/confessor
  • Mediator/clients
  • Do Utah v. Timmermann\
  • Relevant or material testimony or evidence is different for discovery

Utah v. Timmermann

  • Facts
  • When neighbors heard a disturbance from the house next door, they called the cops. Officers arrived and noticed the wife w/ bruises. She said her husband assaulted her and tried to rape her. They took her to a hospital and a sexual assault nurse examined her & filed a report. Mr. Timmerman was charged with assault & attempted rape-2 felonies. At Preliminary hearing, wife invoked her spousal privilege & refused to testify. Prosecutor called the officer & sexual assault nurse. Timmerman was bound over for trial; he files a motion to quash the bindover; dist. Court denied the motion
  • Issue
  • Statements by a spouse to 3rd parties excluded under spousal privilege?

Utah v. Timmermann

  • Resolution
  • no
  • Resoning
  • because privileged testimony hides what otherwise would be relevant testimony from the trier of fact, it must be read narrowly. Purpose of the privilege is to protect a spouse from being put between a rock & a hard place. Hence the privilege only applies to compelled TESTIMONY (involuntary in-court testimony) hence doesn’t apply to 3rd party testimony

Modification of a jury award

  • Additur
  • Jury didn’t award enough money to make ∏ whole
  • If judge agrees
  • A)looser can agree to pay more:)
  • B) looser refuses to pay more
  • Judge will order new trial on damages
  • C) federal judges can’t do additur due to 7th Amendment

  • Appeal to higher court on damages only

Junginger v. Betts

  • Facts:
  • Betts car hit Junginger’s car in a shopping mall parking lot. 2 people in Betts’ car reported feeling nothing. Junginger said she was thrown against the passenger window, her car was dented and she complained of back & neck injuries which were confirmed by Dr.’s objective tests. Case went to a jury. Jury found Betts negligent but awarded $0 damages. ∏ moved for a new trial.
  • Issue: new trial warranted where there are objective signs of injury (however slight) and the jury ignored instructions

Junginger v. Betts

  • Resolution:
  • no
  • Reasoning:
  • To set aside a jury verdict requires that the verdict be against the great weight of evidence. This is not necessarily the case here although, damage awards are required where there is objective injury, as here. ∏ was not a particularly believable witness. Her injuries, while objective were slight and short-lived. Damage to car was minimal.
  • Order a additur of $13,500. ∆ has 10 days to accept or a new trial on damages.

Modification of a jury award

  • Remittitur
  • Jury awarded too much, “a reduction in a jury award of damages”
  • If judge agrees
  • Winner can agree to a reduction
  • Winner can refuse—judge orders a new trial on damages
  • Appeal to higher court on damages only

The judgment

  • Judgment=judicial decision regarding the legal rights of the parties and the remedy awarded
  • Winner=judgment creditor
  • Looser=judgment debtor
  • Winner can obtain a “writ of execution” from Clerk that is sent to sheriff to seize nonexempt property in order to satisfy a judgment.

Motions to know

  • Pleading stage after ∆ is served
  • To dismiss; judgment on pleadings;12(b); demurrer
  • Pretrial after discovery
  • SUMMARY JUDGMENT
  • trial END OF ∏’S CASE-IN-CHIEF
  • NON-SUIT—plaintiff faild to carry burden
  • END OF ∆’S CASE-IN-CHIEF
  • Directed verdict—no material issue of fact & no evidence to support verdict for non-moving party
  • AFTER VERDICT
  • Judgment NOV—absence of evidence to support the verdict
  • New trial—substantial injustice if verdict is upheld---new evidence prejudice
  • AFTER JUDGMENT
  • Relief from judgment—new evidence fraud
  • Post trial
  • Additur—not enough$
  • Remittitur—too much $$