Chapter 4

Litigation: The process of bringing, maintaining, and defending a lawsuit

Pretrial litigation process can be divided into: Pleadings Discovery Pretrial judgments Settlement conference

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The paperwork that is filed with the court to initiate and respond to a lawsuit

Plaintiff: The party who files a complaint Summons: A court order that directs the defendant to

appear in court and answer the complaint

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Type of Pleading

Description

Complaint • The document a plaintiff files with the court and serves on the defendant to initiate a lawsuit

Answer • The defendant’s written response to a plaintiff’s complaint that is filed with the court and served on the plaintiff

Cross-complaint • A document filed by the defendant against the plaintiff to seek damages or some other remedy

Reply • A document filed by the original plaintiff to answer the defendant’s cross-complaint

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• The act of other parties to join as parties to an existing lawsuit

Intervention

• The act of a court to combine two or more separate lawsuits into one lawsuit

Consolidation

A lawsuit where a group of plaintiffs with common claims collectively bring a lawsuit against a defendant

To maintain a class action lawsuit A class must be certified by the appropriate federal or state

court After a court certifies a class

Notice of the class action must be sent, published, or broadcast to class members

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A statute that establishes the period during which a plaintiff must bring a lawsuit against a defendant If a lawsuit is not filed within this time period, the plaintiff

loses his or her right to sue

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A legal process during which both parties engage in various activities to discover facts of the case from the other party and from witnesses prior to trial

Major forms of discovery Depositions Interrogatories Production of documents Physical and mental examinations

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Type Description

Deposition Oral testimony given by a deponent, either a party or witness. Depositions are transcribed.

Interrogatories Written questions submitted by one party to the other party of a lawsuit. They must be answered within a specified period of time.

Production of documents

Copies of all relevant documents obtained by a party to a lawsuit from another party upon order of the court.

Physical or mental examination

Court-ordered examination of a party where injuriesare alleged that could be verified or disputed by such examination.

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A motion a party can make to try to dispose of all or part of a lawsuit prior to trial

Motion for judgment on the pleadings: A motion that alleges that if all the facts presented in the pleadings are taken as true The party making the motion would win the lawsuit when

the proper law is applied to these asserted facts

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A motion which asserts that: There are no factual disputes to be decided by the jury The judge can apply the proper law to the undisputed facts

and decide the case without a jury These motions are supported by affidavits,

documents, and deposition testimony

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A hearing before a trial in order to facilitate the settlement of a case

If there is no settlement The pretrial hearing is used to identify major issues

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Pursuant to the Seventh Amendment to the U.S. Constitution A party to a civil action at law is guaranteed the right to a

jury trial in a case in federal court Trier of fact: The jury in a jury trial

The judge where there is not a jury trial

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Voir dire: The process whereby the judge and attorneys ask prospective jurors questions to determine whether they would be biased in their decisions After selection, the jury is impaneled to hear the case Alternative jurors are usually also selected A jury can be sequestered in important cases

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An attorney from each party Summarizes the main factual and legal issues of the case Describes why the client’s position is valid

The plaintiff’s case Plaintiff bears the burden of proof Direct examination – plaintiff’s attorney examines the

witness Cross-examination – defendant’s attorney can question the

witness▪ Re-direct examination

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The defendant’s case must Rebut the plaintiff’s evidence Prove any affirmative defenses asserted by the defendant Prove any allegations contained in the defendant’s cross-

complaint Rebuttal and rejoinder

Rebuttal – plaintiff’s attorney calls witnesses and puts forth evidence to rebut the defendant’s case

Rejoinder – defendant’s attorney counters the rebuttal

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Made by each party’s attorney to the jury Jury instructions, deliberation, and verdict

Jury instructions: Instructions that the judge gives to the jury that inform jurors of the law to be applied in the case

Jury deliberation – Jury retires to consider the evidence and reach a verdict

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Official decision of the court Judgment notwithstanding the verdict

The court overturns the verdict if it finds bias or jury misconduct

Remittitur The judge reduces the amount of monetary damages

awarded by the jury Written memorandum

Sets forth the reasons for the judgment

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The act of asking an appellate court to overturn a decision after the trial court’s final judgment has been entered

Appellant: The appealing party in an appeal Appellee: The responding party in an appeal An appellate court will reverse a lower court decision

if it finds an error of law in the record

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Negotiation

Arbitration

Mediation

Mini-trial

Fact-finding

Judicial referee

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A procedure whereby the parties to a dispute engage in discussions and bargaining to try to reach a voluntary settlement of their dispute A settlement agreement is drafted that contains the terms of

the agreement

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A form of ADR in which the parties choose an impartial third party to hear and decide the dispute

Federal Arbitration Act: A federal statute that provides for the enforcement of most arbitration agreements

Binding arbitration – Parties agree in advance to be bound by the arbitrator’s decision and remedy

Nonbinding arbitration – The decision and award of the arbitrator can be appealed to the courts

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A form of alternative dispute resolution in which the parties use a mediator to propose a settlement of their dispute If the parties agree to a settlement, a settlement agreement

is drafted that expresses their agreement If an agreement is not reached, the parties may proceed to a

judicial resolution of their case

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A voluntary private proceeding in which lawyers for each side present a shortened version of their case to the representatives of both sides

Fact-finding The parties to a dispute employ a neutral third party to act

as a fact-finder to investigate the dispute

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The court appoints a judicial referee to conduct a private trial and render a judgment Referees have most of the same powers as trial judges Referees’ decisions stand as judgments of the court

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Key Word Description

Electronic court (e-court)

A court that either mandates or permits the electronic filing of pleadings, briefs, and other documents related to a lawsuit

E-dispute resolution The use of online alternative dispute resolution services to resolve a dispute

Electronic arbitration The arbitration of a dispute using online arbitration services

Electronic mediation The mediation of a dispute using online mediation services

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