A Guide to Court Appearances in Civil Cases

1. Part I Sources of Corrections Law

2. Chapter 4 - Going to Court • Introduction – Chapter provides information on appearing in court, either as a witness or party in a case • Most common: being called as a witness for a civil case • More serious: when you yourself are being sued • In either case, should treat as a serious matter

3. Chapter Outline • You Are Summoned • Getting Representation • Step by Step • Not Going to Trial • Trial • Appeal

4. You Are Summoned • Served by an official of the court or by certified mail • Summons indicates the time by which the defendant must respond to the complaint • The time is the legal deadline for filing an answer in court (often thirty days) • The complaint is attached to the summons

5. You Are Summoned: cont’d • The complaint states • Who is bringing the action [plaintiff(s)] • Who is being sued [defendant(s)] • The allegations made by the plaintiffs – statement of “facts” • The relief (injunction, declaratory, monetary damages) being requested

6. Getting Representation • Important steps for the defendant • Retain all papers, including the envelope, noting the date and time received, in which the papers were mailed or carried • Don’t discuss complaint with the plaintiff • Do immediately notify supervisor about the lawsuit

7. Getting Representation: cont’d • Do “get yourself a lawyer” • Ordinarily provided information on how to do this during orientation • Get representation even if lawsuit appears frivolous or ridiculous, or you know nothing about the facts that are in the complaint • Take all the papers received, and any notes you made, and other relevant information, to the attorney

8. Getting Representation: cont’d • Ordinarily, employee will be represented by government lawyers or, in some cases, by outside counsel hired by the agency • Done at no financial cost to employee

9. Getting Representation: cont’d • This assumes employee was operating within the “scope of employment” • If the employee was, the government will take responsibility for his actions • If the employee was not, the government may decline representation • Employee, when representation is declined, is notified and must still secure such representation, at his own expense

10. Getting Representation: cont’d • “Scope of employment” refers to the employee having acted in such a manner that the government will take responsibility for his actions. Factors in making this determination include: • Agency philosophy • Agency policy • Employee’s job description • Post orders • Training

11. Getting Representation: cont’d • Liability insurance – covers actions within scope of insurance policy • Insurer may have a tendency to want to settle to avoid costs of litigation • This could be detrimental to prison administration by serving as an incentive for inmates to sue, regardless of merit

12. Step-by-Step • Complaint is served by summons • Representation is secured • Employee provides her legal counsel with the required information needed for the response • Answer is filed in response to the complaint • Must be filed by court specified deadline

13. Step-by-Step: cont’d • Employee’s attorney may file motions to dismiss the case for such reasons as • Improper service (notice) of the complaint • Lack of court jurisdiction • No basis for judicial relief

14. Step-by-Step: cont’d • If the case is not dismissed, discovery occurs • Four types of discovery • Interrogatories – written questions submitted by one side for response by the other side

15. Step-by-Step: cont’d • Depositions – questions asked in person and under oath, and their responses • A court reporter takes down what is being said • No judge is present • Purpose of this process is to try and nail down what testimony the other side has, and to get an idea of the strengths and weaknesses of the overall case

16. Step-by-Step: cont’d • Motions to produce documents – obtaining written information from the other side • Excludes attorney work product, such as notes taken by the attorney during the interview of the employee she is representing

17. Step-by-Step: cont’d • Requests for admissions – one party asking the other whether it is true that certain facts exist • Intended to identify information that is not in dispute

18. Not Going to Trial • Motion for summary judgment – effort to have case dismissed • Attorney files motion alleging her party is entitled to win the case, based on the law governing the case, because the facts shown in affidavits (sworn written statements) and other documents are not in dispute and do not require trial • Other side has opportunity to respond

19. Not Going to Trial: cont’d • Court decides whether to deny, in which case, the court process continues, or to grant • If defendant’s motion for summary judgment is granted, the case is dismissed • If plaintiff’s motion is granted, court decides appropriate relief, such as money damages and injunction

20. Not Going to Trial: cont’d • If case proceeds to trial, may see settlement discussions prior to the trial beginning • Such an outcome is less likely in prison cases

21. Trial • May occur with or without a jury – the jury is solely a fact-finding body • As a defendant, employee may be called to testify • Employee may also be called as a witness • If called to testify • Notify superiors • Contact the attorney who is calling you, to learn more about your role as a witness

22. Trial: cont’d • Some basic rules for being a witness • Review records and reports available to you that relate to the facts of the case • Do not memorize your testimony • Dress and act professionally • Try to remain as calm as possible • Take the time you need to answer the question

23. Trial: cont’d • Answer only the question asked, exactly as it is given to you • If you don’t understand a question, ask for clarification • Answer as briefly as you can • If you do not know the answer to a question, say so • If a wrong or misleading answer has been given, clarify your answer as soon as you can

24. Trial: cont’d • In response to a question, it is okay to say that you have discussed your testimony before trial with your attorney and other appropriate parties • Be courteous – if the judge or an attorney interrupts, stop talking and wait for someone to tell you to go on

25. Trial: cont’d • At the end of all testimony, the attorneys will summarize the points that are made and most favorable to their clients • If there is a jury, the judge will give instructions • These are the rules that must be used to decide the facts of the case

26. Trial: cont’d • After deliberations, a verdict is returned • If defendant wins, the case is dismissed • If plaintiff wins, the court must decide the appropriate relief • After the verdict and damages are decided, the court enters a judgment • This is the official court order

27. Appeal • May be filed by the attorney for the losing party • There is a time limit for this filing • In a civil case, either side may appeal • The government may provide the employee with representation at no cost • Appeal is filed in an appellate court – for example, in the federal system, the appeal is filed in the court of appeals for that circuit

28. Appeal: cont’d • Appeal is handled by papers being filed • Court will set an argument date for the appeal • A lawyer for each side will argue the case • Arguments are primarily on the legal merits of what has occurred in the trial court

29. Appeal: cont’d • Appeals courts ordinarily don’t review the case facts • Only the issue of whether certain facts should not have been considered, and the issue of whether there is enough evidence in the record to support the verdict will be reviewed

30. Appeal: cont’d • Judgments that are approved (affirmed) in the appellate courts are returned as final • If the appellate court finds significant mistakes were made, it will return the case to the trial judge with instructions on how to proceed • If the case has to be tried over, this is called a reversal and a remand.

31. Appeal: cont’d • In practice, the right of appeal, as just described, is up to the first level of appeal, the appellate court • Subsequent appeals (to the state Supreme Court, or to the United States Supreme Court) may be requested by the losing party, but those courts may decide not to hear the case