business law

CIVIL PROCEDURE Procedural rules govern the process used to decide the merits of a dispute. They govern the conduct of trials and are sanctioned by government. Violating the rules (contempt) is a crime and punishments are imposed. The principle objective of procedural law is to give each party to a dispute an equal and fair opportunity to present their case to a non-prejudiced and convenient court. Procedural rules govern how evidence should be presented and also describe how each party must share evidence with the other. A law suit is triggered when one causes injury to another’s person, property, rights or reputation. The injured party (plaintiff) selects a lawyer who presents an evaluation of the case in terms of remedies available and the probability of a favorable settlement. Lawyers can be paid a flat fee or paid by the hour. In some cases they are paid a percentage of the “damages” (money) collected from the defendant. In those cases, the lawyer receives nothing if his client loses. Clients have the power to discharge their lawyer at any time. (Can you imagine potential conflicts that might arise from this rule?) The plaintiff's lawyer drafts the complaint, stating the facts and the relief (remedy) sought. It is filed with the court. A copy is delivered to the defendant along with a summons. The defendant files an "answer" in which he or she makes admissions or denials and asserts legal defenses. An admission means that there is no need to prove certain facts while a denial creates a factual issue and the need for a trial. The second stage of the litigation involves motions (requests of the judge) filed prior to trial. If the complaint is poorly drafted or vague, the defendant's lawyer may file a "motion to dismiss." If there is no genuine issue of fact, either lawyer may file a "motion for summary judgment." If the judge grants either motion there would be no trial. Of course, in the case of summary judgment, the judge would determine the outcome without a jury. (Can you see a "due process" issue associated with summary judgment?) Each party is entitled to information in the possession of the other prior to trial. Evidence includes the identity and location of persons, the location of documents, known facts and opinions of experts who might appear as witnesses along with depositions (sworn statements of witnesses). This is the right of discovery. Opposing lawyers, however, are not required to share their strategies with each other only their evidence. The judge is responsible for making sure that a jury is properly selected and that due process requirements for a fair trial are followed. The judge rules on motions and also makes sure that procedural rules are enforced. Jurors are selected at random from voter registration and/or drivers' license records. A pool of jurors appears by summons on a predetermined day. Specific people are subsequently chosen by chance from the pool to serve on particular cases. A voir dire examination (literally, "to speak the truth"), is conducted by the lawyers to determine if prejudice exists. Lawyers can reject potential jurors for "cause" (possible prejudice). They can also reject a limited number of jurors without giving a reason (peremptory challenge). After each lawyer has made his/her opening remarks to the jury, witnesses are called to testify. Both attorneys may introduce their own witnesses and question them (direct examination). The opposing attorney may then "cross-examine" each witness. Attorneys may also conduct "redirect" examination of their own witnesses following cross-examination. Attorneys may not ask their own witnesses leading questions (ones that suggest answers) except when introducing a witness to the jury. For example, a lawyer may say, "You are a doctor, are you not?" but he may not ask, "You've never seen this gun before, have you?" Leading questions are permitted on cross-examination because the purpose of cross is to test the creditability of a witness. Evidence, which might prejudice the jury, is excluded from the trial. The judge is responsible for deciding what evidence the jury should not hear. If an improper question has been asked and answered by a witness, the judge may instruct the jury to disregard it. However, if the judge concludes that irreversible error has occurred, he may declare a mistrial in which case a new trial would be arranged and a new jury convened. Rules which judges follow in evaluating evidence include: Evidence must be relevant (tend to prove some issue of consequence) and material (have some power as proof). An expert witness must be competent in the sense of having adequate training, knowledge and expertise. Original documents are preferred over copies if available. Hearsay evidence is excluded; that is, evidence is excluded that does not come from personal knowledge of the witness but, instead, is a repetition of what was said by another. This applies if the testimony is offered for the purpose of proving the truth of what was said. Spontaneous exclamations are an exception. Statements made spontaneously and impulsively coincident with the event in question are generally thought to be true. Evidence may be excluded if privilege exists. A defendant can not be forced to testify against himself nor can a person's spouse, doctor, lawyer or priest be compelled to testify against him. The privilege rests with the defendant not the witness and can be waived by the defendant. During the course of a trial, attorneys often ask a judge to rule on specific issues or take certain actions. For example, either lawyer may move for a directed verdict after all evidence has been presented but before the case has been submitted to the jury. The judge may grant the request (motion) if he/she decides that the case is perfectly clear and reasonable people could not disagree with the result. In that event, the judge simply renders a decision without turning the case over to the jury. After the verdict has been rendered, a party who isn't satisfied may move for a judgment notwithstanding the verdict (j.n.o.v.). The judge might grant it if he decides that reasonable people could not have reached the verdict the jury reached. The judge might also grant a motion for a new trial. The judge also has latitude in adjusting damages (additur or remittitur) if he determines they were inadequate or of they were excessive. Another trial might be granted if new evidence was discovered or if there were errors in the production of evidence or if there was reason to believe that jurors had been bribed or otherwise influenced illegally. ...... Please follow the following format when writing your briefs:. 1 FACTS: This section will constitute a very short (two or three sentences) rendition of the events which brought the parties to the courtroom. 2. ISSUE: The issue should be phrased as a question and confined to one sentence. The court’s answer to this question will resolve the case and can usually be simple “yes” or “no.” (Be on the look out for it as you read the case. The judge will usually give it to you by saying something like: “the question before us is....” He might simply say: “the issue is...”). 3. DECISION: Of course, this is the court’s resolution of the dispute. Most of the cases we look at will be appeals so the decision will usually be only one or two words: “affirmed, reversed or reversed and remanded.” 4. REASONING: In this section we will relate the court’s logic in reaching its decision. This is where we will acknowledge the opposing arguments andexplain why one prevailed over the other. This is where the law is explained and applied so we must refer to the relevant legal principles, statutes and/or precedents.