1. Civil Litigation

Civil Litigation

19 Videos: 47 Minutes

Topics: Learning Material

Introduction to Civil Litigation Procedure
This chapter introduces the concept of civil litigation (“suing someone” or “bringing a lawsuit”). More specifically, it explores the methods and procedure for enforcing one’s rights in a civil lawsuit. It introduces the individuals involved in a civl trial and provides a detailed explanation of the mechanics of a proceeding. It explains the authority for a court to adjudicate certain types of actions and explains what elements must be present for a court to legally subject individuals to its authority. Lastly, the chapter will explore the post-trial stages and the remedies and enforcement mechanisms available to the litigating parties. For further written and video explanation, discussion and practice questions, see Civil Litigation Procedure (Intro)

What is a “Lawsuit” or “Civil Action”?
A civil lawsuit is a private legal action between two or more parties addressing a legally recognizable dispute. A civil lawsuit can be grounded in tort, contract, property, or family law. One or more of the parties have allegedly suffered a harm or loss as a result of the actions or inactions of the other party. Those parties are seeking resolution of the legal dispute and an enforceable remedy from the court. For further written and video explanation, discussion and practice questions, see What is a "civil lawsuit" of "civil action"?

Who are the Parties to a Lawsuit?
A lawsuit involves (or may involve) the following parties: Plaintiff - The plaintiff is the party (individual or business) who files the action claiming that she has suffered a wrong at the hands of the defendant. Basically, the plaintiff is the individual suing or bringing a civil action against someone else. Defendant – The defendant is the party being sued in the civil action. More specifically, a defendant is a party named by the plaintiff in the formal complaint filed with the court. Often times, the plaintiff will name multiple defendants. In some cases, each defendant’s conduct may subject her to potential liability independently of other defendants. In other cases, the collective actions of multiple individuals may subject them to liability collectively. Counterclaim – A counterclaim is a claim by a named defendant against the plaintiff. The defendant alleges that the plaintiff is responsible for some loss or harm she has suffered. A counterclaim by the defendant against the plaintiff does not have to be related in any way to the claims alleged by the plaintiff against the defendant. This all happens within the same court case. In this situation, the defendant or “counter-plaintiff” is the one bringing the counterclaim against the original plaintiff or “counter-defendant”. Third-party Defendants – A third-party defendant is a party who is not initially named as a defendant in the plaintiff’s complaint but is added to the case by a defendant. Basically, a defendant makes a claim against a third party alleging that she should be brought into the litigation as a co-defendant. For further written and video explanation, discussion and practice questions, see Who are the parties to a lawsuit?

What is “Standing”?
Standing is the requirement that a person have a legally recognizable interest in a dispute before the court. In summary, to seek redress before the court, a person must suffer a loss or harm caused by the defendant(s). This rule seeks to ascertain that there is indeed an adversarial relationship between the plaintiff and defendant. To have standing, a plaintiff must demonstrate two things to the court: Legal Wrong - The complaint, as written, must demonstrate a legal controversy. That is, there must be a legal wrong that took place. A legal wrong is an action that is prohibited by law and, if proven, may allow the plaintiff redress. Personal Stake - The plaintiff must show that she has a personal stake in the dispute or controversy with the named defendant. This means that she must be the one wronged. For example, a plaintiff cannot generally sue someone for harming another person who is not closely related to her. While she may be negatively affected, she is not the individual directly suffering the harm. Her harm is incidental. Standing does not depend upon the validity or merits of the case. It only depends upon the relationship and nature of the controversy between the parties. Standing is determined at the time of filing the action. It does not matter if the plaintiff suffers harm at some time well after the dispute arises. She must have suffered the harm prior to the commencement of the action. For further written and video explanation, discussion and practice questions, see What is "standing" to sue?

What is Personal Jurisdiction
Personal jurisdiction means that the court has authority not only over the subject matter of the case but also over the parties to the case. You need to understand what is In Personam jurisdiction, or jurisdiction over the person and jurisdiction over real or personal property, known as In Rem jurisdiction. A court generally establishes personal jurisdiction over a defendant by the defendant voluntary submitting to the courts jurisdiction or by serving a summons on the defendant. This is known as, "Service of Process". Service of process can happen while a defendant is within the state. If it happens outside of the state, it must be done in accordance with the "Long-Arm Statute". For further information on service of process, the long-arm statute, "Due Process", "Minimum Contacts" with the state, and written and video explanation, discussion and practice questions, see What is "personal jurisdiction"?

What is a “Class Action”?
A class action is a special type of lawsuit in which one or more plaintiffs file suit on their own behalf and on behalf of all other persons who have a similar claim against the defendant. The individuals represented by the lead plaintiff(s) are known as a “class” of plaintiffs. This type of lawsuit is popular when many individuals suffer the same type of harm by the defendant’s conduct. Frequently, it involves matters in which no one member of the class has suffered a sufficient loss or harm to justify bringing the lawsuit alone. Basically, the damage suffered by one person is not enough to support the expense of litigation. Class status allows plaintiffs to aggregate their claims into one trial. It also avoids multiple legal actions involving the same issue. It provides advantages to the class of plaintiffs when the cost of litigation high and the issues are complex. You should understand how a plaintiff can "Certify a Class Action" with the court, through the elements of numerosity, commonality, typicality, and adequacy of remedy. You should also understand the process for opting into the class and who pays the costs of litigation. You also need to understand the unique requirements for class actions in state or federal court. For further written and video explanation, discussion and practice questions, see What is a "class action"? and Procedures for Bringing a Class Action

What are “Pleadings”
Pleadings are the legal documents that parties use to communicate their grievances and responses to each other and to the court. In summary, they are used to start the litigation process. The pleadings consist of the following documents: Summons, Complaint, and Answer. Failure to follow the appropriate steps can lead to dismissal of the complaint or a default judgment against the defendant. For further written and video explanation, discussion and practice questions, see What are the "pleadings"?

What is “Discovery”?
Discovery is the process of identifying and obtaining any information or evidence that is relevant and material to the dispute. The rules of procedure for federal and state court litigation allow a party to obtain any such evidence from the other party or third parties. The purpose behind discovery is to allow the parties to obtain the necessary information to resolve or litigate the dispute. The outcome of a case should be based upon all of the facts and evidence available. Several methods exist for requesting information between the parties: Interrogatories, Requests for Production, Depositions, Requests for Admission. Through these court-approved methods, parties to a civil suit have extensive authority to uncover evidence this is material to the litigation. The authority to demand evidence becomes controversial when the evidence demanded in some way discloses private or personal information of third parties. For further written and video explanation, discussion and practice questions, see What is "discovery"?

What is the “Scope of Discovery”?
A party is permitted to seek evidence that is relevant to the dispute. Basically, the evidence requested through discovery must have a tendency to lead to evidence that may be relevant and admissible at trial. This standard is construed very broadly. If one party fails to produce requested discovery, the other party generally files a motion with the court to mandate its production. Parties are free to contest any discovery request before the court. The court will determine whether the request is valid and the extent of the required disclosure. Failure to produce discovery can lead to sanctions from the court. In severe cases, it can lead to the court deeming certain allegations to be true and not subject to dispute. For further written and video explanation, discussion and practice questions, see What is the "scope of discovery"?

What are “Motions”?
A motion is a method by which a party asks the court to do something. That is, the party moves the court to take action. Motions are most often used to ask the court for some form of procedural action. Below are examples of common motions: Motion to Compel Production, Statute of Limitations, Judgment on the Pleadings, Directed Verdict/Summary Judgment. A motion can take many forms and can be for any purpose. In business cases, motions litigation is often the most intense aspect of a trial. The result of motions litigation will often be the determining factor as to whether parties continue on with litigation, dismiss the action, or settle the lawsuit. For further written and video explanation, discussion and practice questions, see What are "motions" and how are they used?

What is a “frivolous case?”
A frivolous case is a civil lawsuit that lacks any factual merit. Basically, the plaintiff is suing the defendant based upon facts that do not amount to a cause of action. A frivolous case is based upon conjecture or false information. Any party can move to dismiss a frivolous suit or the judge can dismiss it unilaterally. Generally, the rules of procedure in civil trials seek to prohibit the filing of frivolous cases. Specifically, Rule 11 of the Federal Rules of Civil Procedure requires an attorney to sign an attestation that the case is filed in good faith. The attorney’s signature says that the facts and claims in pleading are meritorious and, to her knowledge, not for an improper purpose. For further written and video explanation, discussion and practice questions, see What are "frivolous cases?

How to select a jury?
Individuals called to serve jury duty are referred to as the “jury pool”. The jury pool is a cross-section of the population and each member is randomly chosen from government records. Jurors fill out a questionnaire and submit to a background check as part of this process. This procedure seeks to expose any biases or prior conduct that might disqualify the potential juror from service. For example, an individual who has previously been convicted of a felony may not serve on the jury. Once the final pool is selected, these individuals are eligible for selection to serve on a “trial jury” for any case in the court’s jurisdiction. The trial jury is selected through a process known as “voir dire”. In this process, the plaintiff and defendant (through their counsel) ask questions to evaluate the jurors. The purpose of the questions is to identify any biases that may prejudice the juror’s ability to be fair and impartial in the execution of her duties. If the questions reveal any biases that disqualify the juror from service, the juror is stricken “for cause” from the jury pool. This is a procedural process to narrow the jury pool down to a group of eligible, non-biased individuals. Then, each party is given the ability to strike a limited number of jurors from the pool for any non-discriminatory reason. These are known as “preemptory challenges”. This allows the party to strike potential jurors that they simply do not want on the jury. The only limitation is that the peremptory challenge cannot be used to eliminate a potential juror based upon any protected classification (race, religion, gender, etc.). For further written and video explanation, discussion and practice questions, see What is the process for selecting a jury?

What are the steps in a civil trial?
A civil trial begins with the pleadings. Following the pleadings, the parties will generally submit a number of motions to the court for various reasons. This is generally known as pretrial matters. After the pre-trial matters conclude, the trial process begins. A jury trial begins with the parties selecting a jury through the voir dire process. Once the jury is selected, the trial commences. The judge opens the case by going on the record and announcing the case and the parties to the dispute. The pleadings become part of the official record of trial. The parties are then given the opportunity to make an opening statement to the jury. The plaintiff goes first and the defendant is given the opportunity to follow. Often, the defendant will defer delivering the opening statement until after the plaintiff has delivered her entire case. Following the opening statement, the plaintiff will present all of the evidence and witnesses to support her case. Once the plaintiff completes her presentation of evidence, the Defendant will move the court for a directed verdict. If the motion is denied, the defendant is allowed to present evidence in rebuttal of the plaintiff’s case. Once the defendant completes her presentation of evidence, the jurisdiction may allow the plaintiff a chance to rebut the defendant’s case with any additional presentation of evidence. At the conclusion of the plaintiff’s “rebuttal”, the defendant is allowed to the opportunity to rebut the plaintiff’s rebuttal. This is known as the “surrebuttal”. At the conclusion of the surrebuttal, all parties rest. At this point, the defendant will again move the court for summary judgment based upon the presentation of all evidence. If the motion is denied, the court will then allow the parties to make a closing statement to the jury. After closing statements, the presentation of evidence is closed. The remainder of the case belongs to the judge and jury. For further written and video explanation, discussion and practice questions, see What are the steps involved in a civil trial?

What is the “Burden of Proof”?
The burden of proof in a trial refers to the responsibility of a party to produce evidence in support of her allegations. The burden of persuasion refers to the strength of that evidence. The burden of proof in a civil trial is a finding of liability by either a “preponderance of the greater weight of evidence” or by “clear and convincing evidence”. In either case, the plaintiff must present evidence sufficient to meet this standard in order to demonstrate liability. For further written and video explanation, discussion and practice questions, see What is the "burden of proof" in a civil trial?

How is a civil trial decided?
At the conclusion of all evidence and arguments, the judge instructs the jury on the applicable law to apply to the facts. This is known as “charging the jury”. The jury charge explains the state of the law to the jury. The jury will use this law when determining liability. Following the jury instruction by the judge, the jury will recess to deliberate about the facts and apply them to the applicable law. The jury must find that the facts demonstrate each element required by the statute consistent with the burden of proof. The jury must be persuaded that the facts have merit. After deliberation, the jury will return with a verdict of liable or not liable on all of the plaintiff’s claims. If the jury find’s liability, there may be a separate presentation of evidence by the parties regarding damages. The jury will deliberate to determine damages to award based upon the finding of liability. The jury will then deliver the verdict to the judge. The judge, if satisfied that all procedural requirements are met, will enter a judgment on the verdict. The losing party will generally move the court for a directed verdict in contrast to the jury’s findings, known as a “judgment non obstante veredicto”. This is also known a “judgment notwithstanding the verdict” or (“JNOV”). Judges rarely grant JNOV motions. At the same time, the losing party will generally request permission from the court to file an appeal to the appellate court. If done in a timely manner, requests to appeal are routinely granted. The trial process is now closed. The appellate court will review the losing party’s request for appeal (along with the record of trial). If the appeal is denied, the case is closed. If the appeal is granted, the appellate process begins. For further written and video explanation, discussion and practice questions, see How is a civil trial decided?

What is “joint and several” liability?
Joint and several liability is a manner of apportioning liability among multiple parties. It will only apply when there is more than one tortfeasor. Parties that are jointly liable are assessed a certain amount of damages. Joint and severally liable individuals are all liable to the plaintiff, but the entire award of damages may be recovered from any defendant. For further written and video explanation, discussion and practice questions, see What is "joint and several liability"?

What is “appeal” of a civil trial decision?
The losing party in a case must file a request or notice of appeal with the trial court. This request allows the party to undertake the appeals procedure with the immediate appellate court. The request for appeal will generally include the grounds for appeal (allegations as to how the law was incorrectly applied or that the law is unconstitutional) and the record of trial. The appellate court will review and either grant or deny the request. If the court grants the appeal, the parties are allowed to file a brief in support of their position regarding the issues presented on appeal. The appellate hearing generally consists of 3-5 judges sitting together (“en banc”) to hear the parties’ arguments. In rare cases, all of the appellate judges will sit to hear a case. At the appellate hearing, counsel for each party is allowed to present an oral argument in support of her client’s position. The appellate court will take the briefs and arguments under consideration and deliberate on the case. The judges will then render an opinion as to the application of the law in the case and, sometimes, the constitutionality of the law. The appellate court’s written opinion about these matters becomes a part of the common law and serves as “precedent” for the future application of that law by subordinate courts. If the court finds that the trial court erred in the application of law, the trial court’s decision (or part of the decision) will be reversed and remanded for further action. The parties apposing the appellate court’s decision may request immediate appeal to the higher appellate court (generally the State or US Supreme Court). If the appeal is granted, the appellate procedure repeats itself. If the case is remanded to the trial court and the parties do not immediately appeal the appellate court’s decision, they may then re-litigate the issues that are remanded. At that point, the process repeats itself. For further written and video explanation, discussion and practice questions, see What is the process for "appeal"?

How to enforce a judgment
Collecting on a judgment can be a difficult process. There are three primary methods by which a party may enforce a court’s judgment, including "Encumbrance", "Execution", and "Garnishment". These methods vary in degree of effectiveness. Encumbering property does not immediately ensure payment. Executing on property and selling it is only available if the defendant owns property. Garnishment of wages provides greater certainty of payment but only if the debtor is employed. For further written and video explanation, discussion and practice questions, see How do parties "enforce" a civil judgment?

Res Judicata
Res Judicata is a legal expression meaning that the legal dispute between the parties is decided. This principle prevents successive lawsuits involving the same facts or occurrence. A plaintiff may not sue the defendant for the same conduct under the same or a separate cause of action. The separate cause of action should have been raised during the initial trial. It brings the dispute to a conclusion. For further written and video explanation, discussion and practice questions, see What is "res judicata"?


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