CIVIL PROCEDURE

LAW 2: CIVIL LAW

CIVIL PROCEDURE

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INTRODUCTION

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CRIMINAL LAW v. CIVIL LAW

• Within the U.S. legal system, civil law is a body of law pertaining to non-criminal private disputes among individuals, businesses, and governments.

• Civil law and criminal law are meant to accomplish very different things.

• The main purpose of criminal law is to punish people who do harm to others.

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CRIMINAL LAW v. CIVIL LAW

• An important goal of civil law, however, is to compensate, or repay, the people who have been harmed.

• In criminal law, when someone commits a wrong, it is called a crime.

• In civil law, when a person does the same, it is called a TORT.

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CRIMINAL LAW v. CIVIL LAW

• The word tort comes from the Latin term tortum, which means "twisted, wrong, or crooked."

• A crime is considered a wrong against all of society, even though there is usually a specific victim.

• The criminal is prosecuted and punished by the government.

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CRIMINAL LAW v. CIVIL LAW

• By contrast, civil law deals with wrongs against individuals.

• A harmed individual becomes the PLAINTIFF in a civil lawsuit.

• The plaintiff seeks to win a judgment against the DEFENDANT, or accused wrongdoer.

• A defendant who loses a judgment in a civil case will not be punished with jail or other penalties associated with criminal law.

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CRIMINAL LAW v. CIVIL LAW

• Instead, they will be ordered to compensate the plaintiff for injuries, usually by paying monetary damages.

• Although a tort and a crime are two different legal issues, the same illegal activity can be both a crime and a tort.

• This may lead to two separate actions—civil and criminal—against the defendant.

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CRIMINAL LAW v. CIVIL LAW

• Many crimes do not have a specific tort counterpart, but individuals can still sue someone in civil court for their injuries.

• For example, there is no tort called rape, but a rape victim can sue their assailant in civil court for the torts of assault, battery, false imprisonment, and infliction of emotional distress.

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STANDARD OF PROOF• In a criminal case, the standard of proof

that the prosecutor must present is guilt beyond a reasonable doubt.

• In contrast, civil courts typically use a PREPONDERANCE OF THE EVIDENCE as the standard of proof.

• This standard requires that to win, the evidence must be of greater weight or more convincing than that of the opposing side.

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STANDARD OF PROOF• In some civil claims, however, the

standard of proof may be somewhat higher.

• In particular, regarding fraud claims, the standard of proof is generally considered to be what is called CLEAR AND CONVINCING EVIDENCE.

• That standard of proof is higher than simply a preponderance of the evidence.

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STANDARD OF PROOF• If assigning a numerical value for

illustration purposes, clear and convincing evidence would be a level of proof in the range of 75% to perhaps as high as 90%.

• The civil standard, regardless of which one is applied, is much easier to meet than the criminal standard.

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STANDARD OF PROOF• This is appropriate, because the

penalties for those found liable in a civil action are generally less severe than the penalties for those found guilty of a crime.

• A person does not go to jail for committing a tort, but instead pays damages to those injured.

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SUMMARY OF LEGAL SYSTEMS

LEGAL TOPICS CRIMINAL CIVIL Wronged Party Society/“The People” Individual/Plaintiff Wrongdoer Criminal/Defendant Tortfeasor/Defendant Issues Guilt or Innocence Liability and Damages Initiator of Court Action Prosecutor/

Government Individual Citizen

Burden of Proof Guilt Beyond a Reasonable Doubt

Preponderance of Evidence, Clear/Convincing Evidence

Consequences Fine, Imprisonment, Death

Damages, Injunction

Beneficiary of Consequences

Society as a Whole Individual Citizens

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FILING SUIT• The process of resolving a dispute in civil

court is called LITIGATION or a lawsuit.• A lawsuit begins when the plaintiff files a

document, called a complaint, with the court.

• The COMPLAINT recounts what happened to the plaintiff, what the plaintiff wants the court to do about it, and the legal reasons why the court ought to do what the plaintiff asks.

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FILING SUIT• The various wrongs the plaintiff claims

to have suffered are listed in separate counts of the complaint.

• The complaint also sets forth the remedy the plaintiff is seeking from the court.

• The lawyer for the plaintiff or the clerk of the court will then draft a paper called a summons.

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FILING SUIT• The SUMMONS tells the defendant that

a suit has been filed against them, who filed it, and the time and place at which the defendant must appear in court.

• This summons, along with the complaint, must then be given to the defendant.

• They are typically served in person by a sheriff, marshal, or hired private process server.

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FILING SUIT• In certain instances, however, the

documents might be delivered by registered mail.

• These documents provide defendants with the first official notice that they are being sued.

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RESPONSE BY THE DEFENDANT

• Once the lawsuit has been filed and the complaint has been properly served, the defendant has a designated period in which to respond.

• That period of time normally ranges anywhere from twenty to thirty days.

• At this point, most defendants hire a lawyer to prepare their defense.

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RESPONSE BY THE DEFENDANT

• The defendant’s lawyer will determine when the defendant needs to respond to the complaint, discuss the details of the complaint with the defendant, and review the complaint and summons to be certain that they meet all legal requirements.

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RESPONSE BY THE DEFENDANT

• If the complaint appears defective, legally or factually, the defendant may file a MOTION with the court.

• Otherwise, the defendant must file an ANSWER to respond to each allegation in the complaint, by stating whether they are contesting or admitting each allegation, or are unable to contest or admit because of insufficient information.

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RESPONSE BY THE DEFENDANT

• A failure to respond can be interpreted as an admission by the defendant that the plaintiff’s allegation is true.

• In addition to answering the plaintiff’s complaint, the defendant in a civil case may file a claim against the plaintiff.

• This action is known as a counterclaim.

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RESPONSE BY THE DEFENDANT

• If a COUNTERCLAIM is filed, the plaintiff becomes a defendant and will be called on to file an answer to the allegations and counts contained in the counterclaim

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EXCHANGE OF INFORMATION

• After the complaint and answer are filed, both parties begin to prepare for the trial.

• In a process called DISCOVERY, the plaintiff and defendant gather as many facts as possible about the case.

• The advantage of exchanging information is that it becomes clear early what the facts are at issue between the parties.

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EXCHANGE OF INFORMATION

• As a result, the parties might need to spend less time presenting evidence at trial, or may even be able to resolve their dispute.

• Discovery is designed to allow each party to ask the other party what they know about the claim that has been asserted, who any relevant witnesses may be, and to identify any important documents or evidence.

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EXCHANGE OF INFORMATION

• Some of the many available pretrial discovery tools include depositions, interrogatories, motions to produce, and requests to admit.

• A DEPOSITION allows attorneys for each side of the lawsuit to require potential witnesses to answer oral questions under oath before the trial.

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EXCHANGE OF INFORMATION

• Each party can also submit an INTERROGATORY, or list of written questions, to the other party, which also must be answered under oath.

• A MOTION TO PRODUCE requires the other party to generate relevant documents or physical evidence in the other party’s possession for the purpose of inspecting, copying, or photographing.

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EXCHANGE OF INFORMATION

• A REQUEST TO ADMIT allows each party to ask the other to agree that certain facts are true, thus sparing both parties the trouble, expense, and delay of having to prove those facts at trial.

• Discovery is a vital step in civil litigation, and a reminder that the goal of the U.S. legal system is to provide justice rather than to reward the clever lawyer or secretive litigant.

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EXCHANGE OF INFORMATION

• Surprise witnesses and covert evidence often show up on television or in the movies, but rarely in a real courtroom.

• The overall purpose of the discovery process is to make sure that each side has ample opportunity to discover the claims or defenses of the other party so that at the time of trial, each party is fully aware of what the other party intends to present.

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PRETRIAL AND TRIAL• After the conclusion of the discovery

process, there may be a pretrial conference with a judge.

• The purpose of a pretrial conference is to identify any remaining legal and factual issues prior to the trial.

• Once the pretrial conference has concluded and if all settlement attempts have been exhausted, the case will be scheduled for trial.

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PRETRIAL AND TRIAL• From this point on, a civil trial

essentially models the proceedings of a criminal trial; both parties present evidence and call witnesses to support their side of the story.

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ALTERNATIVES TO LITIGATION

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ALTERNATIVES TO LITIGATION

• Litigation is not the only way to settle disputes, and it is certainly not the best way.

• Most legal experts would agree that a lawsuit should be a last resort, to be used only if all attempts to settle a dispute have failed.

• Fortunately, most disputes can be and are settled without the time and expense of a civil trial.

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ALTERNATIVES TO LITIGATION

• There are several different ways to settle disputes such as negotiation, mediation, arbitration, and small claims court—some options being more formal than others.

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NEGOTIATION• The most common and informal way to

settle a dispute is NEGOTIATION—working out an agreement through discussion.

• Negotiation works best when both parties want to stay on good terms with each other and are therefore willing to compromise.

• Although negotiation is a common technique for dispute resolution, it is not always successful.

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NEGOTIATION• There are times when people’s points

of view are so far apart that they can’t find a compromise acceptable to both parties.

• When this happens, the conflicting parties may decide to bring in a neutral third party—such as a mediator or an arbitrator.

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MEDIATION• Mediation is a nonaggressive, casual

forum to resolve a dispute. • The purpose of MEDIATION is to have

both parties sit down with an independent third party to try to resolve a conflict by developing mutually acceptable solutions.

• This third party, called a mediator, listens to both sides of the dispute in an informal setting.

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MEDIATION• The mediator may ask questions, but

typically only for clarification purposes. • No testimony is recorded and any

statements made during mediation are inadmissible as evidence in the event a settlement cannot be reached.

• After hearing from both sides, the mediator separately meets with each party.

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MEDIATION• The mediator may go back and forth in

an attempt to broker an agreement to resolve the dispute.

• Mediation can be a highly efficient, cost effective tool; however, neither party has a legal obligation to settle the dispute.

• Therefore, any recommendations made by a mediator are advisory, meaning they are not legally binding on the parties.

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ARBITRATION• The most significant difference

between mediation and arbitration is that ARBITRATION is binding on both parties, meaning the decision can be enforced by a court, if necessary.

• This type of proceeding may be heard by a panel of up to three people called arbitrators.

• Testimony is heard from both sides and may be recorded by a court reporter.

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ARBITRATION• Each side may make opening and

closing remarks, witnesses can be called to testify, and each party can be subject to cross-examination.

• Arbitration is generally governed by the Rules of Civil Procedure, but the proceeding is often considered more relaxed than a formal court hearing.

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SMALL CLAIMS COURT• For many minor disputes—such as

those between landlords and tenants or between consumers and businesses—a good alternative to a regular civil trial is small claims court.

• SMALL CLAIMS COURT is a court designed to handle disputes regarding small amounts of money, usually no more than $3,000.

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SMALL CLAIMS COURT• The legal procedure in small claims

court is less complicated than that followed in ordinary courts.

• It involves less paperwork and does not require lawyers.

• As a result, a trial in a small claims court is quicker and much less expensive than an ordinary court.

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SMALL CLAIMS COURT• However, small claims court has an

important limitation: the only remedy a plaintiff can ask for is damages.

• Therefore, small claims courts cannot order an injunction or reform a contract.

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CIVIL REMEDIES

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DAMAGES• Most civil cases are remedied in the

form of money, or DAMAGES.• Damages are generally categorized

as either compensatory or punitive.• COMPENSATORY DAMAGES, or

actual damages, are designed to cover actual injury or economic loss.

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DAMAGES• They are supposed to restore

plaintiffs to the position they would have been in if they hadn’t been wronged in the first place.

• Compensatory damages typically include medical expenses, lawsuit and attorney fees, lost wages, and the repair or replacement of property.

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DAMAGES• In some circumstances, when the

defendant’s behavior is thought to be especially outrageous, the plaintiff may ask the court to award punitive damages.

• PUNITIVE DAMAGES, or exemplary damages, exceed normal compensation.

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DAMAGES• They are designed to punish the

defendant and to discourage others from engaging in similar conduct.

• Punitive damages are not awarded in Michigan.

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INJUNCTION• Compensation is not the only kind of

remedy available in civil cases.• In special circumstances where money

damages will not adequately repay the injured party, an injunction is available.

• An INJUNCTION is a court order by which an individual is required to perform, or is restrained from performing, a particular act.

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ENFORCING REMEDIES• When a court makes a decision in a civil

case, it has the power to enforce that decision.

• If a defendant refuses to pay damages, the court may send law enforcement officers to seize the defendant’s property.

• The court may then hold on to the property until the defendant pays the plaintiff.

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ENFORCING REMEDIES• If the defendant still refuses to pay,

the court may sell the defendant’s property and give the plaintiff the money from the sale.

• In some cases, the court can order the defendant’s employer to collect the damages.

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ENFORCING REMEDIES• The employer does this by taking a

certain amount of money out of each paycheck the defendant receives and gives it directly to the plaintiff.

• This process may continue for weeks, months, or years until the plaintiff is compensated fully.

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ENFORCING REMEDIES• In addition, a defendant who violates

a court ordered injunction may be fined or jailed until they comply.