Chapter 9 Flashcards
Complaint/Petition
Paperwork filed with the court by the Plaintiff to initiate a civil proceeding (in federal court. In Texas it is a Petition)
2 schools of thought about drafting a complaint/petition
- Throw everything in the complaint
2. Choose strongest points
Discovery
- Occurs after pleading filed (or sometimes simultaneous with complaint
- Phase that will make or break a case as it exposes strengths and weaknesses in cases when utilized correctly
- Paralegals play a large role in discovery- drafting questions and responses, calendaring deadlines, communicating with clients, and gathering information
Judgment
The court’s final decision regarding the rights and claims of the parties to a lawsuit
Settlement
An out-of-court resolution of the dispute
Elements of Pretrial Settlements
- Out-of-court resolution of the dispute
- Reached in most cases
- In the interest of both parties to settle
a. Save time and money - Must work on the assumption that the case will go to trial
- All pretrial preparation must be completed
Procedural Requirements (4 elements)
- Essential in the litigation process
- Set out in the procedural rules of each court
a. FRCP/FRAP/FRE in federal courts
b. Rules specify what must be done in various stages - Each state has its own rules of civil procedure (TRCP/TRAP/TRE)
- Each court also has its own rules (local rules)
Local Rules
The rules specific to each court
The Initial Client Interview (3 elements)
- Most often conducted by the attorney
a. Explain his services
b.
Creating the Litigation File
- Organization
a. 3 goals
i. Preserve confidentiality
ii. Safeguard legal documents
iii. Easily and quickly retrievable - Litigation Files
a. Comprehensive record of the case
b. Must be well organized
The Complaint (Pleading)
Each party is informed of the claims made by the other and specify the issues (disputed questions) involved in the case
Answer to the complaint
The other sides response to the complaint
Caption
The heading, which identifies the name of the court, the title of the action, the names of the parties, the type of document, and the court’s file number (added by the court)
Allegations
An assertion, claim, or statement made by one party in a pleading that sets out what the party expects to prove to the court; must allege court has jurisdiction over case and explain how/why
General allegations
The body of the complaint
Prayer for Relief
Indicates the relief desired
Affidavits
Sworn statements attesting to the existence of certain facts
Signature
Attorney signs and certifies that he/she has read the complaint and that the facts alleged are true to the best of his or her knowledge
Demand for a Jury Trial (Pleading)
Demand for a Jury Trial
Filing the Complaint
- Traditional Method of Filing
a. Copies hand delivered to court clerk (with copies)
b. Filing fee - E-Filing
a. Reduced time and paperwork
b. 24 hours a day
Service of Process
Official process of delivering complaint to defendant
Summons
Identifies the parties to the lawsuit, as well as the court in which the case will be heard, and directs the defendant to respond to the complaint within a specified period of time
Alternative service methods
Any method of service allowed by law in place of personal service; AKA substituted service
Return of service
Proof of service
Summons has to be done by (2 ways):
- Private process server
2. Constable
Substituted service is only done:
- As a last resort
2. With the permission of the court
Types of Substituted Service
- Publication
- Leaving with someone over the age of 14
- Leaving on the door
Waiver
An Affidavit the defendant can sign to waive service of process
Complaint/Petition
Paperwork filed with the court by the Plaintiff to initiate a civil proceeding (in federal court. In Texas it is called a Petition)
