INTRODUCTION TO CIVIL LITIGATION

1. INTRODUCTION TO CIVIL LITIGATION Chapter One LEGL 261

2. Objectives • Today we will look at • The differences between civil litigation and other types of litigation • Where civil litigation law comes from • How the California Court system is structured • How a case moves through the process • What the paralegal’s role is in the litigation process.

3. A lawyer joke… • The rich, greedy, old man who wanted to take his money with him when he died… • his doctor, priest and lawyer….. • My check is good for every penny! • Legally Blond? http://www.youtube.com/watch?v=_I_GYgGjxFM

4. What we call ourselves tells the story…. • Lawyer • Counselor • Attorney • Barrister • Solicitor • Advocate • “liar”?

5. Attorney • Champion “at the tournament” • Professional fighters, not with swords anymore…. • Now we fight with words.

6. How are lawyers paid? • By the hour… • By the case… • On contingency… • %33 and 1/3 percent • %40 if trial • %0 if lost

7. What is “Litigation”? • Definition: a legal proceeding in a court; a judicial contest to determine and enforce legal rights. This may include: • Interviews of clients and witnesses • Gathering of physical or documentary evidence • Correspondence with opposing parties • Preparation pleadings and court filings • Mediation proceedings • Trials and hearings • Collections or post-trial actions

8. Litigation is an Adversarial System • Texas style?

9. EXAMPLES OF CIVIL CASES • AUTO ACCIDENT • SLIP AND FALL • MEDICAL MALPRACTICE • BREACH OF CONTRACT • FRAUD • NON-DISCLOSURE OF DEFECTS IN REAL PROPERY • LIBEL OR SLANDER • CIVIL RIGHTS VIOLATIONS • PRODUCTS LIABILITY • EMPLOYMENT DISCRIMINATION • SEXUAL HARRASSMENT • INVASION OF PRIVACY • ASSAULT AND BATTERY

10. Is the purpose of litigation to get to the “truth”? • I wish! • The purpose of the law is to settle arguments and disputes peacefully and quickly, if possible. • So what is the Law of the United States? • Impossible question!!!

11. The Common Law System • Roots in English law • custom and precedent • cases - decisions by judges • A wall of books…. • Supplemented by codes, statutes and regulations. • Can be “over-ruled”

12. Sources of American Laws • So who writes the law? • Lawyers? • The Balance of Powers • The President (the Executive) • The Congress(Senate and House) • The Judiciary (Supreme Court)

13. Jurisdictions • From Latin… • Juris = law • Diction = speak • Local, city, county, state, federal…. • So, how many jurisdictions are there?

14. Jurisdictions... • 50 states… • plus the territories, like Puerto Rico, Guam.. • plus the military… • plus the Indian Reservations • plus the Federal! • So what is the law of the United States? • I am a California Lawyer...

15. The Legal Team • Partners • Associates • Managing Partner • Supervising Attorney • Paralegal • Legal Secretary • Law Clerk • Intern • Investigator (usually a contractor)

16. Role Of The Paralegal in Litigation • Client intake and filtering • Pre-litigation investigation • Trial Preparation • Conducting Trial • Post Trial motions or appeals

17. Ethical Considerations • Paralegal must work under supervision of an attorney. Why? • Paralegals cannot give legal advice or represent a client in court. Why not? • Paralegals must be competent in performing tasks for clients. Duh! ... ? • Paralegals have a duty to maintain client information confidential. What does that mean?

18. Ethical Considerations • Communication between an attorney (or paralegal) and a client is privileged (cannot be revealed to third parties without client’s permission). Rule 3-100 • Paralegal cannot communicate directly with an adverse party who is represented by counsel. Rule 3-320 • Must make sure that there are no conflicts of interest between your firm and the client. Rule 3-310 • http://ethics.calbar.ca.gov/Ethics.aspx

19. Paralegal Representing Parties??Maybe… • Social Security Administration • Patent Office • Federal Disability Claims • “Hearing Representative”…Employee of a Corporation acting in that capacity for employer, and no one else.

20. Types of Litigation • Civil– resolution of disputes between private parties through the court system. • Criminal- government prosecutes an action against an individual who has committed a crime against society. • Administrative– process by which administrative agencies resolve disputes.

21. Sources of Law for Civil Litigation • Statutes - legislative law • California Code of Civil Procedure • Court Cases - judicial law • common law or case law • Constitution • U.S. and California

22. The Federal Court System • Trial Courts – U.S. District Courts or special courts • Intermediate Appeals - U.S. Courts of Appeal – 13 Circuit • Final Appeal - U.S. Supreme Court

23. The State Court System • Trial Court – Superior Court For the State of California, County of San Diego • Court of Intermediate Appeals – CA Courts of Appeal – 6 Districts • Final Appeals - CA Supreme Court – highest court in the state

24. From low to high… • Small Claims Court • Municipal Court • Superior Court (may be joined with Muni) • State Supreme (highest court) • United States Supreme Court

25. Other “courts” • Tax court • Military Courts... • Administrative courts • worker injury • unemployment • public labor • more…. Specialty courts

26. Alternatives to court... • Negotiation • Mediation • Arbitration • binding • non-binding

27. Lawsuit… soot, suite, suut? • suit (n.) • c.1300, "attendance at court, the company attending," also their livery or uniform, via Anglo-French siwte, from Old French suitte "attendance, act of following," from Gallo-Romance *sequita, fem. of *sequitus, from Latinsecutus, past participle of sequi "to attend, follow" (see sequel). 

28. Stages of Litigation • Information gathering • Pleading • Discovery and motions • Trial • Post-trial proceedings • Enforcement

29. Stages of a Lawsuit • Injury or disagreement • Demand • Complaint • Answer • Motions and Discovery • Trial • Appeal • Enforcement

30. Parties To A Civil Lawsuit • The person or persons who initiate a lawsuit are called the “plaintiffs.” • The person or persons being sued are called the “defendants.” • Legally the word “person” can mean a corporation, business, governmental entity, or an organization, as well as an individual.

31. Pleading • Is that “begging”? • Well, kind of… • The King and his court • Asking the authorities for help • pleading (n.) • late 13c., "the carrying on of a suit at court," verbal noun from plead (v.). Meaning "supplication, intercession" is from early 15c.

32. PLEADINGS • The first document filed in a civil lawsuit is called the complaint. • The complaint is filed by the plaintiff(s). • The court will issue a Summons to be served with the complaint on the defendant(s). • The first documents filed by the parties to a lawsuit are called the pleadings.

33. Burden of Proof • Civil Case • Preponderance of evidence • Criminal Case • Beyond Reasonable Doubt

34. Defendant’s Pleadings • Answer To Complaint • Motion To Strike • Demurrer • Cross-complaint • If the defendant does not respond to the complaint, a default judgment can be entered against the defendant at plaintiff’s request.

35. LEGAL REMEDIES • Remedies are what the plaintiff wants the court to order the defendant to do. • Legal remedies are called money damages. • Compensatory Damages • General Damages • Pain & suffering • Can’t put a specific amount to it • Special Damages • Reimbursement for medical or other expenses.

36. LEGAL REMEDIES • Punitive Damages • Sometimes called exemplary damages • purpose is to punish the defendant

37. EQUITABLE REMEDIES • An equitable remedy is a remedy that does not involve money. • Examples of equitable remedies: • Injunction • Specific performance • Declaratory relief • Replevin • Rescission of a contract

38. Lady Justice … why?

39. While you’re on break… • Legally Blond? http://www.youtube.com/watch?v=_I_GYgGjxFM