Chapter 7 - The Litigation Process

Question 1

Ways to Solve a dispute

Answer 1

1 - Negotiation
2 - Mediation
3 - Arbitration
4 - Litigation

Question 2

Before The Lawsuit - Civil

Answer 2

• Settlement talks - negotiate before going to court.

Question 3

Before The Lawsuit - Criminal

Answer 3

• The accused must be INDICTED or ATTEND A PRELIMINARY HEARING (right to know what I’m being charged with).
• Accused is then ARRAIGNED (defendant appears before the judge to plead guilty or not guilty).
• A PLEA BARGAIN may be available (if I confess as guilty, I will receive lower charges and reduced recommended sentence)

Question 4

Parties To the Lawsuit - Civil

Answer 4

• Plaintiff (who sues)
• Defendant (person being sued)
• A 3rd party defendant

Question 5

Parties to the Lawsuit - Criminal

Answer 5

• Prosecution (state or gov’t)

- Defendant (criminal)

Question 6

Standing To Sue

Answer 6

• In order to bring a case that the court will hear, one must have standing.
• STANDING - the plaintiff has been harmed in some way and seeks payment or restitution.

Question 7

Hein vs. Freedom From Religion Case

Answer 7

• Freedom from Religion people sued the gov’t because the gov’t was using tax payer money to promote activities run by the religion.
• FFR said that you can’t use the money.
• Courts said FFR doesn’t have standing, so the courts threw out the case.

Question 8

Pleadings

Answer 8

• Plaintiff files a COMPLAINT (facts that the defendant caused harm)
• Defendant responds with an ANSWER (if fails to do this, the defendant automatically loses)
• COUNTERCLAIM filed by the defendant (suing plaintiff at the same time) or could file a CROSSCLAIM (when the defendant wants to bring in a 3rd party).

Question 9

Pretrial Motions (before the trial begins)

Answer 9

• A MOTION TO DISMISS (defendants lawyer files to dismiss the case that the plaintiff’s case isn’t worth it/no merit).
• MOTION FOR SUMMARY JUDGEMENT (filed by either; ask judge to make a decision w/o going to trial)

Question 10

Discovery

Answer 10

• The process of obtaining facts. The “fact-finding process”.
• DEPOSITION - verbally asking questions to witnesses.
• INTERROGATORY - asking questions in writing.

Question 11

The Trial - #1 Jury Selection

Answer 11

• A pool of jurors is brought in to question.
• VOIR DIRE
• PEREMPTORY CHALLENGE - can eliminate people from the jury and don’t have to give reason. (usually have 3)

Question 12

Edmonson v. Leesville Concrete Co.

Answer 12

• Pool of potential jurors.
• Lawyer used peremptory challenges to get 2 black jurors out of the jury.
• The black people sued and said it was unconstitutional to use a peremptory challenge for a person’s race.
• EDMONSON WON.
• You can’t use a peremptory challenge to remove someone based on race.

Question 13

The Trial - #2 Opening Statements

Answer 13

• Jury has been impaneled.

- Lawyers give overview.

Question 14

The Trial - #3 Presentation of Evidence and Witnesses

Answer 14

• Plaintiff goes first - DIRECT EXAMINATION (plaintiff’s lawyer questions witnesses)
• CROSS-EXAMINATION (defendant’s lawyer gets up and makes the plaintiff’s witnesses look unbelievable.
• RE-DIRECT EXAMINATION (plaintiff’s lawyer follows up with more questions).
• RECROSS EXAMINATION (more questions from the defendant’s lawyer.
• MOTION FOR A DIRECTED VERDICT (asking the judge to rule in favor of the defendant)

Question 15

The Trial - #4 Closing Statements/Arguments

Answer 15

• “If it doesn’t fit, you must aquit.”

Question 16

The Trial - #5 Jury Instructions

Answer 16

The Judge instructs the jury on what to do and explains the law to them.

Question 17

Arthur Anderson LLP v. United States

Answer 17

• Accounting firm that collapsed because of Enron.
• Fed gov’t charge firm with a crime.
• Go to trial and judge told the jury to find AA guilty.
• The needed to IMPEDE gov’t investigation then guilty of obstruction of justice. Needed INTENT.
• AA lost at court and was convicted of a crime.
• AA appealed based upon jury instructions that were faulty. They had just shredded documents as a normal process.
• Supreme Court ruled that the judge MADE ERROR IN INTRUCTIONS, so AA NOT GUILTY.

Question 18

The Trial - #6 Verdict and Judgement

Answer 18

• The jury deliberates and comes back with a verdict (aka decision)

Question 19

Posttrial Motions

Answer 19

• The losing party can file a motion requesting a JUDGEMENT NOTWITHSTANDING THE VERDICT.
• MOTION FOR A NEW TRiAL

Question 20

Other Issues of the Litigation Process - BURDEN OF PROOF

Answer 20

• When you’re deciding innocent or quilty
• Criminal cases = prosecution. Must show that the defendant is guilty BEYOND A REASONABLE DOUBT (highest)
• CIVIL CASES - PREPONDERANCE OF THE EVIDENCE (lower - means that the evidence weighs more in favor of one party than another.
• • In some cases the standard is CLEAR AND CONVINCING EVIDENCE (higher)

Question 21

Enforcing a Judgement

Answer 21

EXECUTION - go back to the judge

• Either garnishments that are missing
• OR…the judge can order a sheriff to seize property (EXECUTION).

Question 22

Appeals

Answer 22

• If I lose, I have the right to appeal.
• ORAL JUDGEMENT - No trial at appellate level.
• LEGAL BRIEFS - These convince the judges that district courts have made a mistake.
• APPELLATE COURT - confirms or reverses trial court action.
• APPELLANT/PETITIONER = person who lost at district
• APPELLEE/RESPONDENT = person who won at court.