Civil procedure
1 / 45

Civil Procedure - PowerPoint PPT Presentation

  • Uploaded on
  • Presentation posted in: General

Civil Procedure. PSCI 2481. Their Legal Options?.

I am the owner, or an agent authorized to act on behalf of the owner, of the copyrighted work described.

Download Presentation

Civil Procedure

An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.

- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -

Presentation Transcript

Civil Procedure

PSCI 2481

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?)

  • Or how about if the wicked step-mother could sue Cinderella for damages to her daughters’ chances with the Prince?

  • Or if the first two pigs could sue the wolf for the damages he does to their homes?

An Evolving Lawsuit





Civil Litigation Research Project

  • 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?

  • Execute a will79%

  • Obtain Divorce77%

  • Buy Property40%

  • Personal Injury39%

  • Difficulty w Govt. Agency12%

  • Consumer Problem10%

  • Violation of Constitutional Rights10%

  • Property Damage 5%

What’s the alternative?

  • Accept a “small” loss

  • Leave to scene of your troubles

  • Engage in private negotiation/compromise

  • Harass or commit violence


  • 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”

  • 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

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

  • Psychological costs (stress, anger, fear)

  • Time and energy

Finding an Attorney

  • Word of Mouth

  • Yellow pages

  • Internet

  • Local Bar/Legal Services

  • Lawyer Referral

  • Company or Union Legal Plan

First Steps

  • An initial consultation

  • Negotiation of fees

    • Retainer

    • Flat rate

    • Hourly rate

    • Contingency fee

Deciding to File a Lawsuit

  • 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

  • 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

  • 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

Deciding to Respond to a Lawsuit


  • 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

  • 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

Summary I

  • Grievance

  • Claim

  • Dispute

    (attempt settlement)

  • Complaint

    (attempt settlement)

  • Answer

    The PLEADINGS are now complete.

The Pre-Trial Phase


  • 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”

  • Depositions

  • Written Depositions

  • Interrogatories

  • Production of Documents

  • Access to Premises

  • Written Request for Admission

  • Physical and/or Mental Examinations

The Deposition

  • 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

  • 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

  • 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

  • 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?

  • Default Judgment30%

  • Summary Judgment 3%

  • Dismissed by Court 5%

    (“Failure to Prosecute”)

  • Bankruptcy 5%

  • Settlement45%

  • Trial 5%

  • In Progress 7%

    (more than 2 years)


The Basic Structure of a Trial

  • 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

  • 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)?

  • 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 Trial

  • Plaintiff’s Case

    • Examination (& Cross-examination) of Witnesses

    • Presentation of Physical Evidence

  • Conclusion

    • Motion for Non-suit

    • Motion for Directed Verdict

Examining a Witness

  • 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 Trial

  • Defendant’s Case

    • Examination (& Cross-examination) of Witnesses

    • Presentation of physical evidence

  • Conclusion

    • Motion for Directed Verdict

The Basic Structure of a Trial

  • Defendant’s Closing Argument

  • Plaintiff’s Closing Argument

  • Judge’s Instructions to the Jury

The Judge Instructs the Jury

  • 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 Verdict

    • Special vs. General Verdict

      • Identity,

      • mental state,

      • actions

      • circumstances

The Basic Structure of a Trial: Jury Deliberation

The Verdict

Wait! It’s not over yet.

  • Legal Manuvers

    • Motion for Judgment “N.O.V”

    • Motion for a New Trial

The Final Word

  • 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?

  • 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?

  • Login