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Chapter 5

Introduction to Civil
Procedure
Joel Leppard, Legal
Studies II
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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.

1: 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.

2: Consulting an
Attorney
Generally, the first step in litigation is contacting any
attorney to seek qualified legal advice.
Legal Fees (hourly vs. contingent fee).
Settlement Considerations.

3: Pre-Trial Procedures
(Stages of Litigation)
Pleadings.
Discovery.
Pre-Trial.
Trial.
Post-Trial.

Litigation- Pleadings
1st

2nd

3rd

4th

5th

Pleadings // Discovery // Pre-Trial // Trial // Post

1st Stage: PleadingsComplaint


Prepare Pleadings
File Petition/Complaint.
Court acquires jurisdiction over subject matter and Plaintiff.
Facts: what happened.
Prayer: Court relief.

Complain
t

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: Rio Properties v. Rio International Interlink
(2002)

Summon
s

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Pleadings-Answer
The Answer is the Defendants response to the allegations
stated in the Plaintiffs Complaint.
In the Answer, the Defendant must specifically admit or
deny each allegation in the Complaint.

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Pleadings-Answer
Defendants Answer:
States General Denial.
Move for Change of Venue.
Allege Affirmative Defenses.
Counter Claim against Plaintiff.

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Answer-Affirmative
Defense
Defenses in which the defendant essentially claims that
even if all of the plaintiffs allegations are true, the
plaintiff cannot win because there is a more powerful law
on the defendants 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
against the Plaintiff, in response to the original complaint.
A cross-claim is against a co-Plaintiff or co-Defendant.

CounterClaim

D1
VS.

D2

CrossClaim

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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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Pleadings-Answer
Move to Dismiss.
Motion for Judgment on Pleadings.
Motion for Summary Judgment.

Case 3.2: Ausley v. Bishop


(1999).

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Litigation- Discovery
1st

2nd

3rd

4th

5th

Pleadings // Discovery // Pre-Trial // Trial // Post

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2nd 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.

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Litigation- Pre-Trial
1st

2nd

3rd

4th

5th

Pleadings // Discovery // Pre-Trial // Trial // Post

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3rd Stage: LitigationPretrial


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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Litigation- Trial
1st

2nd

3rd

4th

5th

Pleadings // Discovery // Pre-Trial // Trial // Post

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4: 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 Plaintiffs 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.
Plaintiffs Case--Evidence:
Witnesses- Direct examination vs. Cross X.
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]

Plaintiffs Case (contd).


Party may impeach the testimony or credibility of opposing
witness by showing prior inconsistent statements and/or
Perjury.

Defendants Case.
Closing Arguments.
Jury Instructions and Deliberations.

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The Trial

Verdict.

[6]

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 Casesgenerally, 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 Courts acceptance and


recording of the jurys verdict.
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Litigation- Post Trial


1st

2nd

3rd

4th

5th

Pleadings // Discovery // Pre-Trial // Trial // Post

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5: Post Trial Motions


Once the trial is concluded, a dissatisfied party may:
File a Motion for a New Trial.

Case 3.3: LeBlanc v. American Honda


Motor Co (1997).
Ask that the judge enter a judgment contrary to the verdict (JNOV)
rendered by the jury.

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6: The Appeal
A party may appeal the jurys 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 Appellants behalf.
Appeals court can affirm (agree with) or reverse
(disagree with) the lower courts decision.
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7: 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 Defendants assets.

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Law on the Web


Federal Court Locator at Villanova U.
National Center for State Courts.
Rules of Civil Procedure at Cornell U.
Michigan Cybercourt.
Legal Research Exercises on the Web.

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