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Civil Procedure. PSCI 2481. Their Legal Options?.

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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?)
Or how about if the wicked step-mother could sue Cinderella for damages to her daughters’ chances with the Prince?
an evolving lawsuit
An Evolving Lawsuit





civil litigation research project
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
What Types of Problems to People Bring to Lawyers?
  • 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?
  • 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
“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
Costs of Going to Court
  • $$$$ (for lawyers, filing fees and court costs)
  • Psychological costs (stress, anger, fear)
  • Time and energy
finding an attorney
Finding an Attorney
  • Word of Mouth
  • Yellow pages
  • Internet
  • Local Bar/Legal Services
  • Lawyer Referral
  • Company or Union Legal Plan
first steps
First Steps
  • An initial consultation
  • Negotiation of fees
    • Retainer
    • Flat rate
    • Hourly rate
    • Contingency fee
deciding to file a lawsuit
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
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
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.
deciding to respond to a lawsuit
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
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!
summary i
Summary I
  • Grievance
  • Claim
  • Dispute

(attempt settlement)

  • Complaint

(attempt settlement)

  • Answer

The PLEADINGS are now complete.

  • 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”
  • Depositions
  • Written Depositions
  • Interrogatories
  • Production of Documents
  • Access to Premises
  • Written Request for Admission
  • Physical and/or Mental Examinations
the deposition
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
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
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
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
How far do “small” civil 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 basic structure of a trial
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
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
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
  • 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
  • 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
  • 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
  • Defendant’s Closing Argument
  • Plaintiff’s Closing Argument
  • Judge’s Instructions to the Jury
the judge instructs 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 Judge Instructs the Jury II
  • The Verdict
    • Special vs. General Verdict
      • Identity,
      • mental state,
      • actions
      • circumstances
wait it s not over yet
Wait! It’s not over yet.
  • Legal Manuvers
    • Motion for Judgment “N.O.V”
    • Motion for a New Trial
the final word
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
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?