Legal Research & Writing LAW-215

1. Legal Research & WritingLAW-215 Litigation Roadmaps

2. Civil Litigation Roadmap

3. Civil Litigation

4. Steps in Beginning Litigation • Pleadings: Papers that begin a lawsuit

5. Possible Variations on Pleadings • Class Actions • If the plaintiff has evidence that the wrong in question has affected a large number of unrelated persons, the suit may become a class-action suit, with the plaintiff representing an entire class of plaintiffs. • Default Judgment • If the defendant fails to answer in time, the plaintiff will ask for a default judgment, meaning an automatic win without a trial.

6. Discovery -- next step after pleadings Allows both sides to uncover evidence, encouraging a settlement or ensuring few surprises during a trial. • Interrogatories --written questions that the other party must answer, under oath • Depositions --interview (under oath) of other party or potential witnesses; done by opposing lawyer • Production of Evidence --each side may request to see the other side’s evidence • Physical or Mental Exams --one party may request the court to order an examination of the other party if relevant

7. Discovery (cont’d) • Sometimes the results from interrogatories and depositions will cause one side or the other to file a motion in response. • Motion to compel answers to interrogatories – may be made if one side thinks the other has not adequately answered interrogatories • Motion for protective order – is a request to the court that the other side be made to reduce the number of depositions.

8. Other Steps Before Trial • Summary Judgment --a ruling by the court that no trial is necessary because there are no essential facts in dispute; may be requested by either side. • Final Preparation-- if the case is to proceed to trial, both sides make a list of witnesses and rehearse questions with their own witnesses. Preparation is allowed, but telling the witnesses how to answer is not legal or ethical.

9. Adversary System • The adversary system presumes that the truth will be found if lawyers are allowed to question witnesses for both sides. • Both the plaintiff and the defendant have the right to request a jury trial, but only in those criminal cases which may result in the death penalty or incarceration for a period of greater than six months is there an absolute right to a jury trial.

10. Procedural Rules for a Trial • Burden of Proof • The plaintiff must convince the jury that its version of the case is correct. • In a civil case, the proof needs to be by a preponderance of evidence (meaning at least slightly more likely to be true). • In a criminal case, the proof required is higher; it must be beyond a reasonable doubt.

11. The Plaintiff’s Case • Opening Arguments • This is a brief summary, given by each side, of the facts they hope to demonstrate. • Plaintiff Calls Witnesses • Questions to own witnesses is direct examination. • Lawyer only asks questions with helpful answers. • Defendant Questions Witnesses • Questions to opposing witnesses is cross examination. • Again, lawyer asks questions with helpful answers. • Defendant Moves for Directed Verdict • This is asking the judge to decide that the plaintiff has no case worth proceeding with.

12. The Defendant’s Case • Opening Arguments • Defendant’s opening arguments were presented earlier, before the plaintiff presented its case. • Defendant Calls Witnesses • Questions to own witnesses is direct examination. • Lawyer only asks questions with helpful answers. • Plaintiff Questions Witnesses • Questions to opposing witnesses is cross examination. • Again, lawyer asks questions with helpful answers. • Closing Arguments • Brief summary, by both sides, urging the jury to believe their side of the case.

13. After Both Sides Rest (Finish) • Jury Instructions • The judge instructs the jury to evaluate the case solely on the facts of the evidence presented. • If the case is influenced by a certain legal presumption, the judge will summarize that for the jury. • Deliberation and Verdict • The jury discusses the case for as long as needed (anywhere from less than an hour to several weeks). • Sometimes the jury must be unanimous; other times only a majority (at least 7) or a 10-2 vote is required.

14. The Trial is Over… or is it? • Motions after the Verdict • The loser might request the judge to overturn the verdict on a legal technicality or on a claim that the jury ignored the evidence. • Appeal • The recourse for the loser is to file an appeal, a request for a higher court to examine the facts. • The appeals court may affirm the verdict, modify the award, reverse and remand (send it back to trial) or simply reverse (overturn) the lower court’s verdict. • Settlement • At any point, either side may offer to settle the case, even between the verdict and the beginning of an appeal.

15. Criminal Litigation Roadmap

16. Civil Law vs. Criminal Law Civil law concerns the rights and liabilities between private parties; criminal law concerns those activities that society has outlawed. • Procedure for criminal trial -- government decides whether to prosecute; defendant has the right to a jury trial. • In a criminal suit, the court determines guilt, so that a punishment can be given. • A felony is a serious crime, with a sentence of one year or more in prison. A misdemeanor is less serious, often with a sentence of less than a year.

17. The Prosecution’s Case • Conduct Outlawed • The prosecution must show that the defendant’s alleged activity is indeed illegal. • Burden of Proof • The jury must believe beyond a reasonable doubt in order to convict. This is to protect innocent defendants from undeserved punishment. • Actus Reus(means “the guilty act”) • The prosecution must show that the defendant committed the act (not just talked about doing it). • Mens Rea(means “guilty state of mind”)

18. Mens Rea The defendant must have had a “guilty state of mind.” • General Intent • Required by most crimes; the defendant intended to do the illegal act they are accused of doing. • Specific Intent • Some cases require that the defendant intended to do something beyond the act they are accused of.

19. Defenses • Insanity • A defendant who can prove he was insane at the time of the crime will be declared not guilty. • Most common test used to determine sanity: • M’Naughten Rule: must show a serious, identifiable mental illness and that he didn’t understand the nature of his act. • A very small percentage of defendants plead insanity and a very small percentage of those are acquitted. Those who are acquitted often spend longer in mental institutions than they would have spent in prison.

20. The Criminal Process

21. The Criminal Process • Notification to Police-- the police find out about a suspect, sometimes by an informant. • Warrant-- if a search is needed, police take an affidavit (sworn written statement from an informant) to a judge, who issues a warrant, giving permission to search a particular place, looking for particular evidence. (Fourth Amendment) • Probable Cause-- based on the information given, it is likely that the specified evidence will be found. • Search and Seizure-- police may search and seize only what is specified by the warrant.

22. The Criminal Process(cont’d) • Arrest Warrant-- based on information found in the search, the judge may issue an arrest warrant. • Arrest-- when a suspect is arrested, he is informed of his rights (Miranda warning) and booked (name, photograph and fingerprints are recorded, along with the charges). • Self-incrimination-- the prosecution may not use coercion to force a confession from a suspect. The suspect may refuse to answer any questions that could be used to convict him. (Fifth Amendment)

23. The Criminal Process(cont’d) • Indictment-- if a grand jury (ordinary citizens) determines that there is probable cause to proceed to trial, the suspect is indicted (charged with the crime). • Arraignment-- the indictment is read to the suspect, who then pleads guilty or not guilty to the charges. • Plea Bargaining-- in many cases, the prosecution will offer to end the case with reduced charges if the defendant will plead guilty.

24. The Criminal Process(cont’d) • Trial and Appeal-- if no plea bargain is reached, the case goes to trial. The prosecution must convince the jury beyond a reasonable doubt in order to convict. Convicted defendants may appeal. • The Patriot Act of 2001– passed in response to the terrorist acts of September 11, 2001; designed to give law enforcement officials greater power to investigate and prevent potential terrorist assaults.

25. Criminal Procedural Protection

26. Criminal Procedural Protection (cont’d)

27. Criminal Procedural Protection (cont’d)

28. Yes Did the Defendant have the requisite criminal intent? Yes Did the Prosecution prove each of these elements beyond a reasonable doubt? Yes Was the statute constitutionally valid? Yes Conviction Did the Defendant violate a statute? No No No No No criminal conviction A Criminal Case

29. End of Litigation Roadmaps