introduction to civil litigation chapter one legl 261
TRANSCRIPT
INTRODUCTION TO CIVIL LITIGATION
Chapter OneLEGL 261
Objectives Today we will look at
The differences between civil litigation and other types of litigation
Where civil litigation law comes from How the California Court system is
structured How a case moves through the process What the paralegal’s role is in the litigation
process.
A lawyer joke…
The rich, greedy, old man who wanted to take his money with him when he died…
his doctor, priest and lawyer….. My check is good for every penny!
Legally Blond?
http://www.youtube.com/watch?v=_I_GYgGjxFM
What we call ourselves tells the story….
Lawyer Counselor Attorney Barrister Solicitor Advocate “liar”?
Attorney
Champion “at the tournament” Professional fighters, not with swords
anymore…. Now we fight with words.
How are lawyers paid?
By the hour… By the case… On contingency…
%33 and 1/3 percent %40 if trial %0 if lost
What is “Litigation”?
Definition: a legal proceeding in a court; a judicial contest to determine and enforce legal rights. This may include:
Interviews of clients and witnesses Gathering of physical or documentary evidence Correspondence with opposing parties Preparation pleadings and court filings Mediation proceedings Trials and hearings Collections or post-trial actions
Litigation is an Adversarial System Texas style?
EXAMPLES OF CIVIL CASES AUTO ACCIDENT SLIP AND FALL MEDICAL MALPRACTICE BREACH OF CONTRACT FRAUD NON-DISCLOSURE OF DEFECTS IN REAL PROPERY LIBEL OR SLANDER CIVIL RIGHTS VIOLATIONS PRODUCTS LIABILITY EMPLOYMENT DISCRIMINATION SEXUAL HARRASSMENT INVASION OF PRIVACY ASSAULT AND BATTERY
Is the purpose of litigation to get to the “truth”?
I wish! The purpose of the law is to settle arguments
and disputes peacefully and quickly, if possible.
So what is the Law of the United States? Impossible question!!!
The Common Law System
Roots in English law custom and precedent cases - decisions by judges A wall of books…. Supplemented by codes, statutes and
regulations. Can be “over-ruled”
Sources of American Laws
So who writes the law? Lawyers? The Balance of Powers The President (the Executive) The Congress(Senate and House) The Judiciary (Supreme Court)
Jurisdictions
From Latin… Juris = law Diction = speak Local, city, county,
state, federal…. So, how many
jurisdictions are there?
Jurisdictions...
50 states… plus the territories, like Puerto Rico, Guam.. plus the military… plus the Indian Reservations plus the Federal! So what is the law of the United States? I am a California Lawyer...
The Legal Team
Partners Associates Managing Partner Supervising Attorney Paralegal Legal Secretary Law Clerk Intern Investigator (usually a contractor)
Role Of The Paralegal in Litigation
Client intake and filtering Pre-litigation investigation Trial Preparation Conducting Trial Post Trial motions or appeals
Ethical Considerations
Paralegal must work under supervision of an attorney. Why?
Paralegals cannot give legal advice or represent a client in court. Why not?
Paralegals must be competent in performing tasks for clients. Duh! ... ?
Paralegals have a duty to maintain client information confidential. What does that mean?
Ethical Considerations
Communication between an attorney (or paralegal) and a client is privileged (cannot be revealed to third parties without client’s permission). Rule 3-100
Paralegal cannot communicate directly with an adverse party who is represented by counsel. Rule 3-320
Must make sure that there are no conflicts of interest between your firm and the client. Rule 3-310
http://ethics.calbar.ca.gov/Ethics.aspx
Paralegal Representing Parties??Maybe… Social Security Administration Patent Office Federal Disability Claims “Hearing Representative”…Employee of a
Corporation acting in that capacity for employer, and no one else.
Types of Litigation
Civil – resolution of disputes between private parties through the court system.
Criminal - government prosecutes an action against an individual who has committed a crime against society.
Administrative – process by which administrative agencies resolve disputes.
Sources of Law for Civil Litigation
Statutes - legislative law California Code of Civil Procedure
Court Cases - judicial law common law or case law
Constitution U.S. and California
The Federal Court System
Trial Courts – U.S. District Courts or special courts
Intermediate Appeals - U.S. Courts of Appeal – 13 Circuit
Final Appeal - U.S. Supreme Court
The State Court System
Trial Court – Superior Court For the State of California, County of San Diego
Court of Intermediate Appeals – CA Courts of Appeal – 6 Districts
Final Appeals - CA Supreme Court – highest court in the state
From low to high…
Small Claims Court Municipal Court Superior Court (may be joined with Muni) State Supreme (highest court) United States Supreme Court
Other “courts”
Tax court Military Courts... Administrative courts
worker injury unemployment public labor more…. Specialty courts
Alternatives to court...
Negotiation Mediation Arbitration
binding non-binding
Lawsuit… soot, suite, suut?
suit (n.) c.1300, "attendance at court, the company
attending," also their livery or uniform, via Anglo-French siwte, from Old French suitte "attendance, act of following," from Gallo-Romance *sequita, fem. of *sequitus, from Latinsecutus, past participle of sequi "to attend, follow" (see sequel).
Stages of Litigation
Information gatheringPleadingDiscovery and motionsTrial Post-trial proceedingsEnforcement
Stages of a Lawsuit
Injury or disagreement Demand Complaint Answer Motions and Discovery Trial Appeal Enforcement
Parties To A Civil Lawsuit
The person or persons who initiate a lawsuit are called the “plaintiffs.”
The person or persons being sued are called the “defendants.”
Legally the word “person” can mean a corporation, business, governmental entity, or an organization, as well as an individual.
Pleading
Is that “begging”? Well, kind of… The King and his court
Asking the authorities for help pleading (n.)
late 13c., "the carrying on of a suit at court," verbal noun from plead (v.). Meaning "supplication, intercession" is from early 15c.
PLEADINGS
The first document filed in a civil lawsuit is called the complaint.
The complaint is filed by the plaintiff(s). The court will issue a Summons to be served
with the complaint on the defendant(s). The first documents filed by the parties to a
lawsuit are called the pleadings.
Burden of Proof
Civil Case Preponderance of
evidence Criminal Case
Beyond Reasonable Doubt
Defendant’s Pleadings
Answer To Complaint Motion To Strike Demurrer Cross-complaint If the defendant does not respond to the
complaint, a default judgment can be entered against the defendant at plaintiff’s request.
LEGAL REMEDIES
Remedies are what the plaintiff wants the court to order the defendant to do.
Legal remedies are called money damages. Compensatory Damages
General Damages Pain & suffering Can’t put a specific amount to it
Special Damages Reimbursement for medical or other expenses.
LEGAL REMEDIES
Punitive Damages Sometimes called exemplary
damages purpose is to punish the
defendant
EQUITABLE REMEDIES
An equitable remedy is a remedy that does not involve money.
Examples of equitable remedies: Injunction Specific performance Declaratory relief Replevin Rescission of a contract
Lady Justice … why?
While you’re on break…
Legally Blond?
http://www.youtube.com/watch?v=_I_GYgGjxFM