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Civil Procedure. PSCI 2481. Their Legal Options?.

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Civil procedure

Civil Procedure

PSCI 2481


Their legal options
Their Legal Options?

  • What would happen if the Giant sued Jack for his trespass and the resulting damages? (Or should Jack sue the vendor of the magic beans that got him into trouble with the Giant? Or Jack’s neighbors sued Jack when the beanstalk fell on their homes?)




An evolving lawsuit
An Evolving Lawsuit he does to their homes?

Grievance

Claim

Dispute

Lawsuit


Civil litigation research project
Civil Litigation Research Project he does to their homes?

  • 40% of Americans have had a significant grievance ($1000+) in the last 3 years.

  • 25% of these people hired an attorney

  • 11% filed legal papers

  • 1% went to trial


What types of problems to people bring to lawyers
What Types of Problems to People Bring to Lawyers? he does to their homes?

  • Execute a will 79%

  • Obtain Divorce 77%

  • Buy Property 40%

  • Personal Injury 39%

  • Difficulty w Govt. Agency 12%

  • Consumer Problem 10%

  • Violation of Constitutional Rights 10%

  • Property Damage 5%


What s the alternative
What’s the alternative? he does to their homes?

  • Accept a “small” loss

  • Leave to scene of your troubles

  • Engage in private negotiation/compromise

  • Harass or commit violence


Examples
Examples he does to their homes?

  • Friendswood Exxon – truck repairs

  • Boulder dentist – bad crown

  • Katy apartment complex - leaks

  • Safeway/Perrier – facial injury

    Value of the attorney – assessment of value of the claim as a legal issue.


Going to court
“Going to Court” he does to their homes?

  • Most people don’t get there… but if you do

  • Most people need an attorney to handle…

    • Procedures

    • Official Language

    • Interpretations of Law

  • (It is possible to go “pro se” – as your own attorney – but it is difficult)

  • Indigents may qualify for legal assistance. (“Guaranteed” in criminal cases, not in civil.)


Costs of going to court
Costs of Going to Court he does to their homes?

  • $$$$ (for lawyers, filing fees and court costs)

  • Psychological costs (stress, anger, fear)

  • Time and energy


Finding an attorney
Finding an Attorney he does to their homes?

  • Word of Mouth

  • Yellow pages

  • Internet

  • Local Bar/Legal Services

  • Lawyer Referral

  • Company or Union Legal Plan


First steps
First Steps he does to their homes?

  • An initial consultation

  • Negotiation of fees

    • Retainer

    • Flat rate

    • Hourly rate

    • Contingency fee


Deciding to file a lawsuit
Deciding to File a Lawsuit he does to their homes?

  • Are there facts or data available to support the claim? (Can the facts be proven?)

  • Does the client have a “cause of action?

  • Is the case being filed within time limits?

  • Can the defense arguments be rebutted?

  • Is this financially worthwhile?

    • for the client?

    • For the attorney?

      If the answer to all of these questions is “YES”, then legal action can be worth pursuing.


Other key issues
Other Key Issues he does to their homes?

  • Justiciable

    • Is there a “case or controversy”?

    • Is the dispute “moot”? Is it “ripe”?

    • Does the case raise “political questions”?

  • Standing

    • Do the parties have standing?

    • Is the defendant the proper person?

  • Jurisdiction?

    • Federal or state case?

    • Proper venue?

    • Statute of limitations?


Starting the lawsuit
Starting the Lawsuit he does to their homes?

  • Plaintiff’s Attorney

    • Prepares the complaint

    • Delivers the complaint to the Courthouse

  • Clerk of the Court

    • Files Complaint

    • Assigns a docket number and judge

    • Issues summons and returns summons to the plaintiff’s attorney

  • Plaintiff’s Attorney

    • Delivers summons and complaint to defendant, or gives the summons & complaint to a marshall, sheriff or process server to be delivered to the defendant.

    • A signed copy of the summons must be returned to the courthouse to indicate the defendant’s receipt of the complaint.


Wyle e coyote vs acme

Wyle E. Coyote vs. ACME he does to their homes?


Deciding to respond to a lawsuit
Deciding to Respond to a Lawsuit he does to their homes?

Questions:

  • Am I legally liable?

  • Have I fulfilled my legal liability? (e.g., paid worker compensation to an injured employee)

  • Do I have any continuing moral or social obligations to the plaintiff?

  • What is the probability of successful litigation?

  • Is it economically more reasonable to concede than to fight this lawsuit?


Responding to the complaint
Responding to the Complaint he does to their homes?

  • Do Nothing

  • File Motions (prior to answering the complaint)

    • File a motion requesting dismissal of the complaint (e.g., venue, jurisdiction, timeliness)

    • File a motion requesting that the court order an amendment to the complaint

      • “more definitive statement” (need information)

      • “to strike” (remove scandalous material from documents)

  • File an “Answer”

    • Admit to the allegations in the complaint

    • Deny the allegations in the complaint

    • Assert defenses to the allegations in the complaint

    • Admit to insufficient knowledge to form any opinion about the complaint

  • Countersue!


Acme responds
ACME Responds he does to their homes?


Summary i
Summary I he does to their homes?

  • Grievance

  • Claim

  • Dispute

    (attempt settlement)

  • Complaint

    (attempt settlement)

  • Answer

    The PLEADINGS are now complete.


The pre trial phase

The Pre-Trial Phase he does to their homes?


Discovery
“Discovery” he does to their homes?

  • Do I need additional information to continue participating in this lawsuit?

    • Is information available?

    • Is it relevant?

    • Is it “protected”?

    • Is it necessary to prove my case?

    • Is it unavailable without the use of discovery “tools”?

  • In other words: Who has information? Where is it? How can I get access to it?


Discovery tools
Discovery “Tools” he does to their homes?

  • Depositions

  • Written Depositions

  • Interrogatories

  • Production of Documents

  • Access to Premises

  • Written Request for Admission

  • Physical and/or Mental Examinations


The deposition
The Deposition he does to their homes?

  • Notice sent to all parties

  • Subpoenas issued. Orders to 3rd parties requiring them to appear.

  • Examination (Questioning) of person with information

  • Transcription by court reporter

  • Signed by witness

    • Used to contradict testimony at trial

    • Used in case of absence, illness, or death


The purpose of discovery
The Purpose of Discovery he does to their homes?

  • Acquire Information (so as not to be “blindsided” at trial and to stimulate settlement)

  • Narrowing of the issues

    • Stipulate (Agree on) facts prior to trial so that they don’t have to be disputed in the courtroom.


Summary ii
Summary II he does to their homes?

  • Pleadings Complete

    (settlement attempted)

  • Discovery

    (settlement attempted)

  • Motion for Summary Judgment

    (settlement attempted)

  • Pre-trial Memorandum

    (settlement attempted)

  • Conference with Judge

    (settlement attempted)

  • Pre-Trial Order

    (settlement attempted)

  • Placement on Trial List (“Calendaring”)

    (settlement attempted)

  • Called for Trial


The pre trial order
The Pre-Trial Order he does to their homes?

  • Contentions of both parties

  • Statement of stipulated facts

  • Issues remaining – Facts in dispute

  • Issues remaining – Legal issues in dispute

  • List of exhibits

  • List of witnesses

  • Estimated trial length

  • “Ready for Trial” certification


How far do small civil lawsuits go in colorado
How far do “small” civil he does to their homes?lawsuits go in Colorado?

  • Default Judgment 30%

  • Summary Judgment 3%

  • Dismissed by Court 5%

    (“Failure to Prosecute”)

  • Bankruptcy 5%

  • Settlement 45%

  • Trial 5%

  • In Progress 7%

    (more than 2 years)


The trial

The TRIAL he does to their homes?


The basic structure of a trial
The Basic Structure of a Trial he does to their homes?

  • Jury Selection (optional)

  • Plaintiff’s Opening Statement

    • Roadmap to the case

    • What the Plaintiff hopes to prove

  • Defendant’s Opening Statement (optional at this time)

    • Alternative roadmap

    • What the Defendant hopes to prove


Jury selection
Jury Selection he does to their homes?

  • Voter Lists

  • Jury Array Established

  • Notification to Report for Duty

  • Jury Panel Sent to Courtroom

  • “Voir Dire” (Examination of jurors)

    • Removal on challenge “for cause”

    • Removal on “peremptory challenge”

  • Petit Jury Selected


What are the legal qualifications for jury service in colorado
What are the legal qualifications for jury service (in Colorado)?

  • You must be 18 years of age or older.

  • You must live in the county or municipality that summoned you.

  • You must be a United States citizen.

  • You must read, speak, and understand English.

  • You must not have served on a jury for five or more days in the past 12 months.


  • You must not be solely responsible for the daily care of a permanently disabled person living in your home.

  • You must not have a physical or mental disability that would prevent your ability to serve as a juror.

    If you do not qualify to serve because of any of the reasons listed above, you should discuss your situation with the jury commissioner. You may be required to provide written proof of disqualification. By law, there are no economic, age-related, or occupational exclusions from jury service.


The basic structure of a trial1
The Basic Structure of a Trial permanently disabled person living in your home.

  • Plaintiff’s Case

    • Examination (& Cross-examination) of Witnesses

    • Presentation of Physical Evidence

  • Conclusion

    • Motion for Non-suit

    • Motion for Directed Verdict


Examining a witness
Examining a Witness permanently disabled person living in your home.

  • Direct Examination (testimony of presumptively favorable witness)

  • Cross-Examination (questioning of the witness by the opposition)

  • Re-Direct (further questions by attorney to resurrect favorable witness if necessary)

  • Re-Cross (further questions by opposition to damage witness after redirect)


The basic structure of a trial2
The Basic Structure of a Trial permanently disabled person living in your home.

  • Defendant’s Case

    • Examination (& Cross-examination) of Witnesses

    • Presentation of physical evidence

  • Conclusion

    • Motion for Directed Verdict


The basic structure of a trial3
The Basic Structure of a Trial permanently disabled person living in your home.

  • Defendant’s Closing Argument

  • Plaintiff’s Closing Argument

  • Judge’s Instructions to the Jury


The judge instructs the jury
The Judge Instructs the Jury permanently disabled person living in your home.

  • On procedure

    • Presumption of innocence (criminal only)

    • Determination of facts

    • Admissibility of evidence

    • Credibility of witnesses

    • Reasonable inference from facts and testimony

    • Standard of proof


The judge instructs the jury ii
The Judge Instructs the Jury II permanently disabled person living in your home.

  • The Verdict

    • Special vs. General Verdict

      • Identity,

      • mental state,

      • actions

      • circumstances


The basic structure of a trial jury deliberation
The Basic Structure of a Trial: permanently disabled person living in your home.Jury Deliberation


The Verdict permanently disabled person living in your home.


Wait it s not over yet
Wait! It’s not over yet. permanently disabled person living in your home.

  • Legal Manuvers

    • Motion for Judgment “N.O.V”

    • Motion for a New Trial


The final word
The Final Word permanently disabled person living in your home.

  • Judgment

    • To the loser goes the court costs.

    • The court will “enforce” the jury’s decision if the jury determines an “award” is appropriate”. This could be monetary ($1 to $100,000,000,000) or non-monetary (e.g. Brittany loses custody of her children).


Fight versus truth
Fight versus Truth? permanently disabled person living in your home.

  • What do you think? Is this a good way to run a trial?

  • Should it be adversarial with lawyers on both sides? Or should we set aside all this fighting and maneuvering to let the judge run the investigation?


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