BUS 201 Highline Collage Business Law Partnerships Reflection

BUSINESS LAWCHAPTER 32
PARTNERSHIPS
1
Overview of Partnerships
• The association of two or more
persons to carry on as co-owners a
business for profit forms a partnership,
whether or not the persons intend to
form a partnership.
• Partnerships are governed by the
Uniform Partnership Act (UPA) of
1914, which has been revised several
times (most recently in 1997).
2
Is it a Partnership?
• The following factors help determine if
an association is a partnership:
– Partners share profits
– Partners share management of business
– Partners usually share losses
• Referring to yourselves as partners
does not create a partnership, but may
be evidence that one was intended.
• Charitable businesses are not
partnerships.
3
Partnership by Estoppel
• Partnership by estoppel applies if:
– Participants tell other people that they
are partners (even though they are
not), or they allow other people to say,
without contradiction, that they are
partners.
– A third party relies on this assertion;
and
– The third party suffers harm.
4
Liability to Outsiders
• Partners with actual or apparent authority may
bind the partnership.
– Actual Express Authority –set forth in
partnership agreement, or in decisions made
by a majority of partners.
– Actual Implied Authority –reasonably deduced
from the nature of the partnership, partnership
agreement, or relations of the partners.
– Apparent Authority –acts of a partner
apparently carrying on the ordinary
partnership business bind the partnership, so
long as that third person has no knowledge or
notice of the lack of actual authority.
5
Liability to Outsiders
• Ratification
– If the partnership accepts the benefit of an
unauthorized transaction or fails to
repudiate it, it has ratified the transaction.
• Information
– Under the Uniform Partnership Act,
whatever one partner knows, the
partnership is deemed to know.
• Tort Liability
– A partnership is liable for intentional and
negligent torts of a partner in the ordinary
course of business or when the partner is
acting with actual authority.
6
Paying Partnership Debts
• Personal Liability – each partner is
personally liable for the debts of the
partnership.
• Joint and Several Liability – a creditor
may sue the partners jointly as a group
or separately as individuals.
• Incoming Partners – are liable only for
debts incurred after becoming a partner;
liability for earlier debts is limited to the
investment in the partnership.
7
Relationships Among Partners
• Financial Rights
– Partners share profits equally, unless
agreed otherwise.
– Partners share losses in the same
ratio as profits.
– Unless agreed otherwise, partners get
no pay for work done beyond their
share of profits.
– All partnership property belongs to the
partnership, not to an individual.
– A partner can transfer the right to
profits, but not membership in the
partnership.
8
Relationships Among Partners
• Management Rights
– Each partner has equal rights in management
of the partnership unless otherwise agreed.
– Partners with authority have the right to bind
the partnership to a contract; even partners
without authority have the power (but not right)
to bind.
– Unless agreed otherwise, partners have an
equal vote on matters of partnership business.
– All partners have a right to inspect and copy the
partnership’s books and records. Partners are
also required to share any important
information with all other partners.
9
Relationships Among Partners
• Management Duties
– Duty of Care – duty owed by partners to
manage the partnership affairs without
gross negligence, reckless conduct,
intentional misconduct, or knowing
violation of law.
– Duty of Loyalty – duty of utmost loyalty.
Duty to not compete with partnership,
turn over any profit to partnership, and
avoid conflicts of interest.
– Duty of Good Faith & Fair Dealing –
duty to deal with each other and the
partnership in a fair way.
10
Terminating a Partnership
• Partnership at Will vs. Term
Partnership
– Partnership at Will — the partners have
not agreed in advance how long their
partnership will last; any of them may
leave at any time.
– Term Partnership — the partners have
decided on a length of time or a
particular task to be completed; the
partnership automatically ends at the
end of the time or task.
11
Dissociation
• Dissociation occurs if a partner
quits.
• When one or more partners
dissociate, the partnership can
either buy out the departing
partner(s) and continue in business
or wind up the business and
terminate the partnership.
• A partner always has the power to
leave a partnership but may not
have the right.
12
Dissociation
• Rightful Dissociation
– Partner in a partnership at will gives notice
that he intends to withdraw.
– Partners agree in advance on events that will
cause dissociation.
– Partner dies or becomes incompetent.
– Partner is expelled by the other partners.
• Wrongful Dissociation
– Partner violates the partnership agreement.
– Partner withdraws before the end of the term.
– Court expels a partner in a term partnership
due to harmful behavior.
– Partner in a term partnership is bankrupt.
13
Continuation of Partnership
Business
• Financial Settlement
– If the partnership decides to continue,
it must pay the ex-partner the value of
her share of the business.
• Liability of the dissociated partner to
outsiders for debts incurred before
dissociation
– A dissociated partnership is liable to
outsiders for debts incurred during her
term as a partner, but the partnership
must indemnify her for these debts.
14
Continuation of Partnership
Business (cont’d)
• Liability of Dissociated Partner for Debts Incurred
After Dissociation
– A dissociated partner is liable to outsiders for
partnership debts incurred within two years
after she leaves, but only if the creditor
reasonably believes she is still a partner.
– A partnership must indemnify her for these
debts.
• Liability to the Partnership
– If the ex-partner harms the partnership after
she leaves, she is liable for the damage.
15
Termination of the
Partnership Business
• Ending a partnership business
involves three steps:
– Dissolution –decision to end
business; can be voluntary or
automatic.
– Winding Up — During the winding up
process, all debts of the partnership
are paid, and the remaining proceeds
are distributed to the partners.
– Termination — the end; happens
when winding up is complete.
16
“Partnerships are common.
You need to know how to form
a partnership, how to avoid
forming one, and how to exit
without legal or financial
penalty.”
17
Civil
Litigation
Seventh Edition
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Civil
Litigation
Seventh Edition
Peggy Kerley
Joanne Banker Hames, J.D.
Paul A. Sukys, J.D., Ph.D.
Australia • Brazil • Mexico • Singapore • United Kingdom • United States
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Civil Litigation, Seventh Edition
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Brief Contents
Preface xx
Acknowledgments xxvii
About the Authors xxviii
PART I
Introduction to Civil Litigation
C h ap t e r 1
Litigation and the Paralegal
2
C h ap t e r 2
The Courts and Jurisdiction
29
PA R T I I
Initiating Litigation
C h ap t e r 3
Preliminary Considerations and Procedures
62
C h ap t e r 4
Investigation and Evidence
92
C h ap t e r 5
The Complaint
123
C h ap t e r 6
Responses to the Complaint
169
C h ap t e r 7
Motion Practice
204
v
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vi   Brief Contents
PA R T I I I
Discovery
C h ap t e r 8
Overview of the Discovery Process
228
C h ap t e r 9
Depositions
273
C h ap t e r 1 0 Interrogatories
297
C h ap t e r 1 1 Physical and Mental Examinations
324
C h ap t e r 1 2 Request for Documents
340
C h ap t e r 1 3 Request for Admission and the Future of
Discovery
388
PA R T I V
Pretrial, Trial, and Posttrial
C h ap t e r 1 4 Settlements, Dismissals, and
Alternative Dispute Resolution
416
C h ap t e r 1 5 Trial Techniques
444
C h ap t e r 1 6 Posttrial Practice
495
Appendix A Sample Deposition 523
Appendix B Bennett and Douglass Research Files 535
Glossary 562
Index 573
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Contents
Preface xx
Acknowledgments xxvii
About the Authors xxviii
Part I
Introduction to Civil Litigation
C h ap t e r 1
Litigation and the Paralegal
2
Objectives 3
Introduction to Civil Litigation 4
Differences between Criminal and Civil Cases 4
An Overview of Civil Litigation 6
Types of Civil Lawsuits 7
Alternatives and Limitations to Litigation 9
Alternative Dispute Resolution 10
Administrative Agency Hearings 10
Legislative and Judicial Limitations 10
Locating the Law of Civil Litigation 11
Primary Sources 11
Secondary Sources 13
The Role of Technology in Litigation 13
Technology and the Law Firm 13
Technology and the Courts 15
The Role of the Litigation Paralegal 15
The Litigation Law Firm 15
Litigation Paralegal Job Description 16
What a Litigation Paralegal Cannot Do 18
Skills Required of the Litigation Paralegal 18
Continuing Legal Education 19
Professional Organizations 19
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vii
viii   Contents
Practical Tips for Success in the Law Firm 19
Forms File—Invaluable Aid 19
How to Build a Litigation Procedures Manual 21
c h ap t e r 2
The Courts and Jurisdiction
29
Objectives 30
The Courts and Litigation 30
Trial Courts 31
Courts of Appeals 31
Courts of Last Resort 32
Federal Court System 33
U.S. District Courts 34
Miscellaneous Federal Trial Courts 34
U.S. Courts of Appeals 34
U.S. Supreme Court 34
State Court Systems 36
The Courts and the Internet 36
Jurisdiction 38
Subject Matter Jurisdiction 39
Personal Jurisdiction 46
In Rem Jurisdiction 50
Quasi in Rem Jurisdiction 51
Venue 52
Federal Court Venue 52
State Court Venue 53
Changing Venue 54
Part I I
Initiating Litigation
C h ap t e r 3
Preliminary Considerations and Procedures
62
Objectives 63
Determining the Existence of a Cause of Action 63
Feasibility of the Lawsuit 66
Turning Down a Case 66
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ix
Contents
Time Limitations 68
Statute of Limitations 69
Claim Statutes 71
Laches 72
Tickler Systems 75
Ethical Considerations in Accepting a Case 76
Competency to Handle the Case 76
Frivolous Claims 76
Conflict of Interest 76
Ethical Considerations After Accepting a Case 78
Communication with the Client 78
Communication with the Opposing Party 78
Confidentiality 79
Honesty 79
Attorney Fees and Ethics 80
Property of Client—Trust Accounts 81
Ethical Considerations and Technology 83
Confidentiality and Client Communication 83
Confidentiality and Client Information 84
Document Retention Advice 84
Special Ethical Concerns for Paralegals 85
law Office Procedures 86
Basic Procedures 86
C h ap t e r 4
Investigation and Evidence
92
Objectives 93
The Client Interview 93
Preparing for the Initial Client Interview 94
The Paralegal’s Role in the Interview 99
Interview Summary 101
Professional Demeanor 101
Locating Fact Witnesses or Elusive Defendants 101
Steps for Locating the Agent of Corporations
or Partnerships 102
Techniques for Interviewing Fact Witnesses 103
Evidence 107
Direct Evidence versus Circumstantial Evidence 107
Forms of Evidence 108
Federal Rules of Evidence 109
Relevancy 109
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x   Contents
Evidence of Character and Habit 110
Documentary Evidence 110
Self-Authentication 111
Best Evidence Rule 111
Scientific Evidence and Expert Witnesses 111
Hearsay Rule 112
Exceptions to Hearsay 112
Privileged Communications 114
State Rules of Evidence 114
Additional Resources Relating to Evidence 114
Methods for Locating and Preserving Evidence 115
Court Records—PACER 115
Evidence Control and Retrieval 116
Preservation of Evidence 117
Litigation Holds 117
Expert Witnesses 117
C h ap t e r 5
The Complaint
123
Objectives 124
The Nature and Purpose of Pleadings 125
The Elements and Format of a Complaint 125
Identifying and Describing the Parties 126
Real Party in Interest 127
Status 128
Capacity 128
Parties and Fictitious Names 131
Joining Multiple Parties 132
Class Actions 133
Interpleader 134
Alleging Jurisdiction and Venue 134
Pleading the Cause of Action 136
Alleging Multiple Claims 136
Multiple Parties and Causes of Action 140
Request for Damages or other Relief 141
Money Damages 141
Equitable Relief 142
Provisional Remedies 143
Drafting the Complaint 143
The Caption 144
The Causes of Action 144
The Prayer 148
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xi
Contents
The Subscription 148
The Request for a Jury 148
Verifications 149
Disclosure Statement by Nongovernmental
Corporate Party 149
Exhibits 149
Filing the Complaint 152
Electronic Filing (E-Filing) 153
Federal Courts 153
State Courts 154
The Summons 155
Serving the Complaint 155
Waiver of Service 160
Amending the Complaint 161
C h ap t e r 6
Responses to the Complaint
169
Objectives 170
Responding to the Complaint 170
Time Limits 172
Stipulations Enlarging Time 173
Motions to Extend or Enlarge Time 175
Types of Answers 175
General Denial 175
Specific Denial 176
Qualified Denial 176
Affirmative Defenses 176
Drafting the Answer 178
Caption 178
Body 179
Prayer and Signature 182
Verification 184
Service and Filing 184
Amending 185
Counterclaims, Cross-Claims, and
Third-Party Complaints 186
Counterclaims 186
Cross-Claims 187
Third-Party Complaints 189
Replies and Answers 193
Amending 193
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xii   Contents
Legal Challenges to the Complaint 193
Failure to Answer 198
Setting Aside Defaults 199
C h ap t e r 7
Motion Practice
204
Objectives 205
Motions Generally 205
Preparing, Serving, and Responding 206
Preparation of the Written Papers 206
Service and Filing 210
Responding to Motions 211
Court Procedures Involving Motions 212
Hearings 212
Tentative Rulings 213
Orders after Motions 214
Sanctions 215
Specific Motions 215
Pretrial Motions 215
Trial Motions 218
Posttrial Motions 219
Preliminary Injunctions and Temporary Restraining Orders 221
Part I I I
Discovery
C h ap t e r 8
Overview of the Discovery Process
228
Objectives 229
The Nature of Discovery 230
Developments Concerning Discovery 230
Electronically Stored Information 230
The Objectives of Discovery 231
Preliminary Decisions Regarding Discovery 232
Ethical Considerations in Discovery 243
The Extent of Allowable Discovery 244
The Scope of Discovery 244
Limits on Discovery 248
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xiii
Contents
Duty of Mutual Disclosure Under Rule 26 257
The Discovery Conference 258
Mutual Disclosures 259
Duty to Supplement 261
Cooperating with Discovery 261
Voluntary Cooperation 261
Involuntary Cooperation 264
c h ap t e r 9
Depositions
273
Objectives 274
The Deposition 274
Traditional and Electronic Depositions 275
Traditional Oral Depositions 275
Advantages of the Traditional Oral Deposition 276
Disadvantages of the Traditional Oral Deposition 277
Electronic Depositions 277
Advantages of the Electronic Deposition 278
Disadvantages of the Electronic Deposition 278
The Paralegal’s Role Before the Oral Deposition 279
Amendments to the Notice Requirements 279
Subpoena Requirement 280
Recent Amendments to Rule 45 Subpoena 282
Preparation for the Deposition 282
The Paralegal’s Role During the Oral Deposition 286
Note-Taking 286
Witness Evaluation 287
The Paralegal’s Role After the Oral Deposition 288
Transcript Arrangements 288
The Deposition Summary 289
The Deposition Upon Written Questions 291
C h ap t e r 1 0
Interrogatories
297
Objectives 298
Interrogatories 299
Scope and Number of Interrogatories 299
Purposes of Interrogatories 299
Advantages of Interrogatories 300
Disadvantages of Interrogatories 300
Interrogatories and ESI 300
The Use of ESI to Respond to Interrogatories 301
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xiv   Contents
The Downside of Electronically Stored Information 301
Drafting Interrogatories 302
Preliminary Steps in Drafting Interrogatories 303
Form and Content of Interrogatories 303
Title of the Interrogatories and Introductory Paragraph 303
Motion to Compel 311
Drafting Answers to Interrogatories 312
Determining Time Limits 312
Answering the Interrogatories 313
Fulfilling the Duty to Supplement 314
Objecting to Interrogatories 315
C h ap t e r 1 1
Physical and Mental Examinations
324
Objectives 325
The Physical or Mental Examination 326
Types of Cases Using Physical or Mental Examinations 326
Reasons for Allowing Physical and Mental Examinations 326
Filing a Motion for Compulsory Examination 327
Requirements for Granting the Motion for
Compulsory Examination 328
Evidence of Good Cause 328
Condition in Controversy 329
Granting a Motion for Compulsory Examination 329
The Paralegal’s Role in Physical
and Mental Examinations 330
Arranging for the Examination of an Opposing Party 330
Preparing the Client for an Examination 332
C h ap t e r 1 2
Request for Documents
340
Objectives 341
The Request for Documents 342
Recent Developments Concerning Mutual Disclosure
of Documents 342
Mutual Disclosures and ESI 342
Alternative Methods of Requesting Documents 343
Legal Holds and the Duty to Preserve Evidence
Including ESI 346
Preliminary Decisions Regarding Requests
for Documents 347
Approaches to Document Production 348
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xv
Contents
ESI and the Document Request 350
Document Production Requests and
Computer Systems 350
Document Production Requests and the Nature of ESI 351
Document Production Requests and Storage of ESI 355
The Expense Involved in the Retrieval of ESI 356
Predictive Coding and the ESI Production Revolution 356
Protection of Documents 357
The Attorney–Client Privilege 357
The Work Product Privilege 358
Additional Privileges 359
Overbroad and Duplicative Requests 359
Inadmissible and Irrelevant Evidence 359
Confidentiality Agreements and Protective Orders 359
Format Objections to Document Requests 360
Inadvertent Production of Documents 360
Inadvertent Production of Electronically
Stored Information 360
Requesting the Production of Documents 361
Form and Content of the Request 361
Final Responsibility in Drafting the Request 366
Motion to Compel 366
Reviewing the Documents of the Opposing Party 367
Responding to a Request for Documents 367
Determining a Target Date 367
Categorizing the Documents 368
Involving the Client in Document Production 369
Organizing the Document Production 370
Organizing and Indexing the Documents after Production 375
Organizing the Documents after Production 375
Indexing the Documents after Production 376
Inspection of Property 376
Obtaining an Inspection 376
Responding to a Demand for Inspection 377
ESI and On-Site Inspections 377
Reasons for the On-Site Inspection of a Computer System 377
Procedures for the On-Site Inspection
of a Computer System 378
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xvi   Contents
C h ap t e r 1 3
R equests for Admission and the
Future of Discovery          388
Objectives 389
Requests for Admission and the Future
of Discovery 390
Requests for Admission 390
Purposes of Requests for Admission 390
Uses of Requests for Admission 391
Advantages of Requests for Admission 392
Drafting Requests for Admission 393
Preliminary Steps in Drafting Requests for Admission 393
Form and Content of Requests for Admission 393
Responding to Requests for Admission 399
Alternative Responses to Requests for Admission 399
Objections to Requests for Admission 400
The Discovery Protocols Pilot Project 401
The Creation of the Pilot Project 401
Experimental Discovery Protocols for Employment Cases 403
Emerging Ethical Issues and the ESI Revolution 404
Ethical Responsibilities Related to ESI 404
The Ethics of Cloud Storage 406
Positive Steps to Avoid ESI Pitfalls 407
Amending Discovery in the Federal Courts 408
The Federal Court’s Advisory Committee on Civil Rules 408
Streamlining the Discovery of ESI 408
Proposed New Sanctions for Spoliation 409
Part I V
Pretrial, Trial, and Posttrial
C h ap t e r 1 4
S ettlements, Dismissals, and
Alternative Dispute Resolution      416
Objectives 417
The Settlement 418
Initial Factors Involved in the Settlement Decision 418
Preliminary Investigative Work 419
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xvii
Contents
Settlement Offer 420
Settlement Summary and Settlement Letter 420
Settlement Brochure 424
Settlement Conference 425
Settlement Agreement and Release 426
Settlement Agreements 426
Covenant Not to Sue 429
Releases 429
Dismissal, Consent Decree, and Distribution of Funds 431
Dismissals 431
Consent Decree 433
Distribution of Settlement Funds 433
Alternative Dispute Resolution 434
Court-Related ADR 434
Private ADR 436
C h ap t e r 1 5
Trial Techniques
444
Objectives 445
Preliminary Preparation for Trial 445
Pretrial Conference 448
Litigation File Organization 448
Amending the Pleadings 449
Motions at the Beginning of Trial 449
The Trial Notebook 449
Preparation of Witnesses 455
Subpoena of Witnesses 455
Communicating with Witnesses 458
Witness Preparation Meeting 459
Preparation of Trial Exhibits and Briefs 460
Preparing Trial Exhibits 460
Researching for the Trial Brief 462
Coordinating Trial Logistics 468
Arranging for Accommodations 468
Visiting the Courthouse 469
Contacting Court Personnel 469
Preliminary Steps in the Trial Process 470
Decisions Regarding Jury Trials 470
The Jury Process 471
Preparing a Juror Profile 471
Holding a Mock Jury Trial 472
Using Shadow Juries 472
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xviii   Contents
The Trial 473
Jury Selection 473
The Voir Dire Process 476
Peremptory Challenges 476
Opening Statement 476
Characteristics of a Good Opening Statement 477
The Presentation of Evidence 478
The Plaintiff’s Case-in-Chief 479
The Defendant’s Case-in-Chief 480
The Presentation of Rebuttal Evidence 481
Closing Argument 482
Jury Deliberation and Verdicts 483
Motions during Trial 484
Motions at the End of Trial 485
The Paralegal’s Role at Trial 487
Ensuring the Presence of Witnesses 487
Keeping Track of Exhibits 487
Participating in Jury Selection 487
Taking Notes during the Trial 488
The Electronic Courtroom 488
Laptop Computer with Presentation Software 489
C h ap t e r 1 6
Posttrial Practice
495
Objectives 496
Federal Rules Changes Regarding Calculating Due Dates
in the Appeal Process 496
Posttrial Motions 497
Motion for a New Trial 497
Indicative Ruling and Remand to the District Court 497
Preliminary Steps in the Appeal 498
Notice of Appeal 499
Appeal Bond 501
Ordering the Transcript 501
Transmitting the Record 505
Enlargement of Time 506
The Appellate Brief 506
Drafting the Appellate Brief 506
Appellant, Appellee, and Reply Briefs 510
Filing and Service of Appellate Briefs 512
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xix
Contents
Coordinating the Oral Argument 513
Preparing for the Oral Argument 513
Assisting at Oral Argument 514
Final Procedures 514
Further Appeal Procedures 514
Posttrial Judgment Procedures 514
Appendix A Sample Deposition 523
Appendix B Bennett and Douglass Research Files 535
Glossary 562
Index 573
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Preface
The paralegal profession remains one of the fastest growing professions in the United
States. One reason for the phenomenal growth of this relatively young profession is the
unique role that the paralegal plays within the legal system. The paralegal bridges the gap
between the attorney and the legal secretary by bringing to the law office a body of knowledge and a set of skills developed specifically for the day-to-day practical realities of the
practice of law.
THE REASON FOR THE DEVELOPMENT
OF CIVIL LITIGATION
xx
Paralegal education requires a skillful blend of the principles of the law with its practical
application. Nowhere in the law is that skillful blend of theory and practice more imperative than in the study of litigation. The litigation paralegal meets new and different challenges each day on the job. These daily challenges mean that, from the very first hour
on the job, the paralegal must be prepared to understand not only what is required in a
specific situation but also why it is required. The paralegal is expected to know the most
efficient, the most effective, and the most economical way to accomplish the task at hand.
In recent years this often involves the use of technology. Familiarity with the many uses of
technology, including the Internet, is essential to a litigation paralegal. Civil Litigation was
planned and written with these specific goals in mind.
While paralegal educators have recognized the requirements of proper paralegal training, many of the available textbooks have not satisfied those requirements, either concentrating too heavily on legal theory or containing one form after another with little or no
discussion of the relevant law. Too many times paralegal instructors have had to supplement texts by creating their own practical assignments or by filling in all the legal blanks.
This textbook combines theory and practice and includes numerous practical assignments
for students. Also, although this is not a computer text, each chapter addresses the use of
technology, including the Internet, in litigation.
Additional factors also prompted our development of this text. Civil litigation instructors
know that one of the most difficult tasks is covering both federal and state law and doing it in
a way that does not confuse students. Although the text emphasizes federal litigation practice
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Preface
and forms, it also incorporates common state practice and forms. Furthermore, several individual state supplements for this text have been prepared and are available for students.
To successfully acquaint the fledgling paralegal student with this intricate mix of legal
theory and practical legal skills, we have remained attuned to the fact that, for many students, civil litigation will be their first legal studies course. Consequently, we have been
careful to present the study of litigation in a straightforward, yet lively, fashion that should
not only inform but also challenge both student and instructor. All legal terms are in bold
type and defined in the text, a necessity for beginning paralegal students. We also begin each
chapter with a hypothetical case that is fully developed as the chapter unfolds. Our objective
in doing this is to show students that the law deals not only with books and documents but
also with people—usually people in trouble, often people who have been hurt or unfairly
treated and who have turned to the law and to legal professionals for help. The hypothetical
cases, found in the chapter opening case commentaries, deal with a variety of factual and
legal problems illustrating the breadth of civil litigation in the legal system. In addition, so
that students can follow the progression of two cases, we have included assignments in each
chapter that refer back to the cases introduced in the Chapter 1 Commentary. It is our belief
that this approach will give a realistic and energetic flavor to the study of litigation.
THE ORGANIZATION OF CIVIL LITIGATION
For clarity and ease of understanding, we have chosen to use chronological order throughout the text. The book has been divided into four parts representing the four major stages
in the litigation process. In Part I we introduce the student to the role of the paralegal in
the litigation process. The two chapters in this section also provide an overview of the
court system and the litigation process, along with a discussion of the concepts of jurisdiction and venue.
In Part II we begin the study of litigation in earnest by walking the student through
the opening stages of a lawsuit. Naturally, this means concentrating on the preliminary
legal and practical concerns that must be taken into consideration at the onset of a lawsuit.
Consequently, these early chapters focus on such things as interviewing and investigation
skills, the role of evidence in litigation, the writing and filing of initial and responsive
pleadings, and an understanding of motion practice. To accomplish our objective of making the text a practical guide for students, we have explained the requirements for pleadings and motions found in the Federal Rules of Civil Procedure and have included many
examples and sample documents. We have also provided detailed explanations and guidelines for drafting various legal documents.
Following our chronological plan, Part III explores the discovery process. Because the
paralegal has an extensive role in discovery, we have devoted one of the six chapters in this section to an overview of the process, including a lengthy discussion of the most recent changes
to the Federal Rules of Civil Procedure relating to discovery. The remaining five chapters
discuss specific discovery techniques. Separate chapters cover depositions, interrogatories,
requests for physical and mental examinations, requests for the production of documents,
and requests for admission. Part III also includes the new amendments to the Federal Rules
of Civil Procedure, which were added recently to deal with the growing use of electronically stored information (ESI) in the litigation process. Again, in keeping with our objective
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xxi
xxii
Preface
of providing students with a practical guide, we have explained in great detail the day-today role of the paralegal during each stage of the discovery process. These chapters combine
theory with practice, covering the discovery rules in the Federal Rules of Civil Procedure. We
have also included an extensive array of sample documents, including requests for physical
and mental examinations, requests for the production of documents, and requests for admissions. As a supplement to Part III, Appendix A provides a sample deposition based on the
case scenario that serves as the basis for the examples and samples in Chapter 9.
Part IV provides the student with an in-depth view of the final stages in the litigation
process. We have devoted one chapter to pretrial settlements, dismissals, and alternative dispute resolution; one to the trial itself; and one to posttrial procedures. Again, in keeping with
our goal of making Civil Litigation a practical guide, we have provided students with a wide
variety of suggestions for making the trial process run as smoothly as possible. Some of these
tips include how to prepare a trial notebook, how to arrange for accommodations during the
trial, how to contact court personnel, how to prepare a jury profile, and how to use shadow
juries among many others. We have included a wide variety of practical illustrations and sample documents, including releases and dismissals, a settlement summary, a settlement letter,
a detailed settlement agreement, a notice of appeal, and a motion for enlargement of time,
among others. Sample letters, charts, and diagrams also are included, as are appropriate references to the Federal Rules of Civil Procedure and the Federal Rules of Appellate Procedure.
Chapter Organization
Each chapter follows the same organizational pattern. Chapters begin with a case commentary, establishing a realistic setting for the material to be covered in the chapter. This
is followed by a statement of the chapter objectives. The student immediately identifies
the learning goals of the specific chapter. Text material is presented along with multiple
charts, diagrams, and sample forms. Where applicable, reference is made to the facts
described in the commentary. All legal terms are bold and defined. Special features in
each chapter address the application of technology and the Internet to litigation practice.
Each ­chapter ends with a chapter summary, questions for review, chapter exercises, and a
major chapter project. At the end of each chapter are assignments relating to the fictional
Bennett and Douglass cases, which are introduced in Chapter 1.
Teaching and Learning Features
The practical nature of Civil Litigation makes it an ideal text for use in and beyond the classroom. Because of its many forms, letters, memos, charts, and diagrams, it can easily serve as
a reference manual for the paralegal in the litigation section of a law firm. Nevertheless, the
primary objective of the book is to serve as a textbook for a basic civil litigation course for
paralegal students. Consequently, we have included several important features to enhance
this objective and to make the book the best in its market. Those features include:
• an outline at the beginning of each chapter pointing out the major topics to be covered in the chapter
• case commentaries at the beginning of each chapter that illustrate the varied nature of
civil litigation, demonstrate the practical application of the matters contained within
the chapter, and give a realistic color to the study of litigation
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Preface
xxiii
• a list of learning objectives at the beginning of each chapter to provide the student
with a sense of direction
• a set of review questions at the end of each chapter to provide students with a sense of
continuity with the learning objectives and to guarantee that students understand the
chapter material
• definitions of all legal terms in the chapter material (all terms are bold), in a running
glossary and in a full glossary at the end of the text
• chapter exercises at the end of each chapter that include questions for analysis and
practical assignments, including those that require students to investigate specific state
statutes and apply them to the topics covered in the chapter
• a chapter project that offers a chance for the student to undertake a major paralegal
task related to the matter in the chapter, including such activities as writing letters and
memos; drafting pleadings, motions, and affidavits; and preparing discovery devices
• case assignments in each chapter based on the same cases to give students the opportunity to work one case from start to finish
• an Automated Litigation Support feature in each chapter that relates the effective use
of technology to the material in the chapter
• a Finding It on the Internet feature in each chapter that describes Internet applications to
the material in the chapter and includes several Web sites as well as Internet assignments
• an appendix containing the transcript of a deposition
• an appendix containing research material and forms to enable students to complete
the case assignments based on the Chapter 1 hypothetical cases
• state-specific supplements for Florida, New York, Texas, California, Ohio, and ­Pennsylvania
are provided on the Instructor Companion Site and MindTap.
THE Seventh EDITION OF CIVIL LITIGATION
When we first wrote this text, our basic plan was to present the litigation process in chronological order, emphasizing the practical aspects of litigation and the role of the paralegal
in the process. Comments from instructors and students who have used the book convince
us that this is the correct approach. However, nothing in the law, including litigation,
remains static. Of course, there have been changes in the law. But more important, the
development and use of technology, including the Internet, have resulted in tremendous
changes in the way litigation is practiced. The increased utilization of paralegals in law
firms, especially in the area of litigation, has also affected litigation practice. Attorneys have
come to recognize the full potential of paralegals and are now giving them more and more
responsibility. We have revised this text with these thoughts in mind. Accordingly, the following matters have been revised.
• Where applicable, legal concepts have been updated to reflect revisions of the U.S.
Code and Federal Rules.
• Where applicable, the feature illustrating the ways that technology plays a role in the
litigation process was updated.
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xxiv
Preface
• Where applicable, Internet references were updated so as to allow students to avail
themselves of the wealth of information currently related to litigation. Of primary
importance are sites containing the U.S. Code, the Federal Rules of Civil Procedure,
and the Federal Rules of Evidence. Accessing these rules through the Internet assures
that students will be reading the latest version of the law, something that would not
happen if the rules were included as an appendix to the text.
• Material on ethical concerns raised by the use of technology in the law firm was added,
including telephone appearances for motion hearings.
• The extensive changes made to the time limits related to amendments, responsive
pleadings, and motions are discussed.
• The discovery chapters were revised to include new amendments to the Federal Rules
of Civil Procedure, especially those related to handling electronically stored information
(ESI), new material on the Sedona Conference including the Fourteen Principles of ESI
that formed the groundwork for the amendments to the Federal Rules of Civil Procedure.
The discovery chapters also include new material on the EU Data Protection Directive
and the Safe Harbor Principles enforced by the U.S. Department of Commerce.
• New material was added on the Genetic Information Nondiscrimination Act of 2008
and how it may relate to the rules governing physical and mental examinations.
• Additional material relating to the Uniform Arbitration Act of 2000 is included.
• Major revisions on the presentation of evidence at trial and jury deliberation and verdicts are discussed.
• Appendix B contains additional documents related to the Bennett case, a hypothetical
employment law case that allows students to work on all stages of one case. In addition, documents from a new case were added to give students the opportunity to work
on a case in state court.
HOW TO USE THIS TEXT
This text was designed to follow the litigation process from beginning to end. Following
this pattern, we believe, gives the student a realistic and complete picture of the litigation
process and the role of the paralegal at the various stages of litigation. We do offer some
suggestions about the various chapter features.
• Students can be required to answer the Questions for Review in writing. Alternatively,
they can be used for discussion in class either with the entire class or in small groups.
• The Chapter Exercises provide opportunities for students to explore state law and
to engage in factual analysis. Students can, of course, be assigned all of the exercises.
Alternatively, with exercises requiring outside research, small groups in the class can
each be assigned a different exercise and asked to report their findings to the class. The
exercises requiring analysis can be assigned for writing or for discussion.
• The Chapter Project provides an important opportunity for students to engage in
realistic litigation tasks. For the most part, the projects at the end of each chapter
relate to the case commentary. Students are given the experience of working on different cases, just as litigation paralegals commonly do. Additionally students can work
on one case from start to finish by completing the assignments found at the end of
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Preface
xxv
each chapter relating to the Bennett and Douglass cases. Selected hypothetical documents from these cases are found in Appendix B.
• Internet access gives students the opportunity to read actual code sections (both federal and state) and case law. Relevant Web sites are included in the chapters.
• The chapters in the state-specific supplements relate state law to the material in the
corresponding chapter in the text. In those states for which there is a state-specific
supplement, reading assignments should include both the text and the corresponding
chapter in the supplement.
SUPPLEMENTal Teaching and learning
materials
Instructor Companion Site
Instructor’s Manual
The Instructor’s Manual has been revised to incorporate changes in the text and to provide
comprehensive teaching support. The Instructor’s Manual contains the following:
Syllabus and lesson plans for each chapter
• Chapter outlines
• Answers to exercises in the text
• Test Bank and answer key
PowerPoint Presentations
Customizable PowerPoint® Presentations focus on key points for each chapter.
(­PowerPoint® is a registered trademark of the Microsoft Corporation.)
Cengage Learning Testing Powered by Cognero is a flexible, online system
that allows you to:
• author, edit, and manage test bank content from multiple Cengage Learning solutions
• create multiple test versions in an instant
• deliver tests from your LMS, your classroom, or wherever you want
Start Right Away!
Cengage Learning Testing Powered by Cognero works on any operating system or browser.
• No special installs or downloads needed
• Create tests from school, home, the coffee shop—anywhere with Internet access
What Will You Find?
• Simplicity at every step. A desktop-inspired interface features drop-down menus
and familiar, intuitive tools that take you through content creation and management
with ease.
• Full-featured test generator. Create ideal assessments with your choice of 15 question types (including true/false, multiple choice, opinion scale/likert, and essay).
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xxvi
Preface
Multi-language support, an equation editor, and unlimited metadata help ensure your
tests are complete and compliant.
• Cross-compatible capability. Import and export content into other systems.
To access additional course materials, please go to login.cengage.com, then use your SSO
(single sign on) login to access the materials.
MindTap
MindTap for Civil Litigation is a highly personalized fully online learning platform of
authoritative content, assignments, and services offering you a tailored presentation
of course curriculum created by your instructor. MindTap for Civil Litigation guides you
through the course curriculum via an innovative learning path where you will complete reading assignments, annotate your readings, complete homework, and engage with quizzes and
assessments. MindTap includes a variety of web-apps known as “MindApps” — allowing
functionality like having the text read aloud to you as well as MindApps that allow you to
synchronize your notes with your personal Evernote account. MindApps are tightly woven
into the MindTap platform and enhance your learning experience.
How MindTap Helps Students Succeed?
• Use the Progress App to see where you stand at all times—individually and compared
to highest performers in your class
• ReadSpeaker reads the course material to you
• MyNotes provides the ability to highlight text and take notes—that link back to the
MindTap material for easy reference when you are studying for an exam or working
on a project
• Merriam Webster Dictionary and a glossary are only a click away
• Flashcards are pre-created to help you memorize the key terms
Not using MindTap in your course?
• It’s an online destination housing ALL your course material and assignments . . .
neatly organized to match your syllabus
• It’s loaded with study tools that help you learn the material more easily
• To learn more go to www.cengage.com/mindtap or ask your instructor to try it out
Please note that the Internet resources are of a time-sensitive nature and URL addresses
may often change or be deleted.
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Acknowledgments
Civil Litigation is the result of the planning and input of many individuals and entities. With
grateful appreciation, we would like to acknowledge and give our thanks to our editors; to Bob
Nirkind, who supported the authors in the original ideas for the book; to the former ­Southeastern
Paralegal Institute, which initially introduced Peggy ­Kerley to the exciting field of paralegal
­textbook publishing; to our former and present students for the ­positive comments about the text;
to Mark Hames, for his support, encouragement, and ­especially his assistance with ­technology
questions and issues; to Kerry Hames, attorney, for her assistance; to Terry Ellis, director of the
Administration of Justice program at DeAnza ­College, for his support and ­flexibility and to all of
the paralegal students at DeAnza ­College who have helped in the development of this edition; to
Addie Tackett, former director of the ­Radiologic Technology Department of North Central State
College, and Dale Maurer, a ­registered ­radiologic technologist, who ­provided the medical details
for the sample ­deposition; to L. Dan Richards, John Falls, Diane Hipsher, and Judith Sturgill
of North Central State College for their support of the paralegal program at the college; to the
spring quarter 1991 advanced business law students at North Central State College for their
enthusiastic ­willingness to test several of the cases in the text; to John and Louise Sukys, Jennifer
Ann Chiocco, Ashley Gentille, Megan Gentille, and Susan Sukys for their patient understanding
and loyal encouragement; and to the many paralegal students whose enthusiasm and intelligence
continually motivate us. The authors gratefully acknowledge the encouragement and support
and extend their sincere appreciation to these individuals and entities.
In addition, we acknowledge the contributions of the following reviewers, whose
­suggestions and insights have helped us enormously:
Sally Bisson
College of St. Mary
Omaha, NE
Howard Sokol
Athens Area Technical Institute
Athens, GA
Tamara McIntosh
Cincinnati State Technical and
Community College
Cincinnati, OH
Glossary definitions from Oran. Oran’s Dictionary of the Law, 4E. © 2008 Delmar Learning,
a part of Cengage Learning, Inc. Reproduced by permission. www.cengage.com/permissions.
xxvii
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About the Authors
Peggy N. Kerley is a litigation paralegal, working with the law firm of Weil, Gotshal &
Manges, and a former paralegal instructor at Southeastern Paralegal Institute, in Dallas, Texas.
She has more than 45 years of legal experience. Ms. Kerley received her ­undergraduate degree
in political economy from the University of Texas at Dallas and her paralegal ­certificate from
the University of Oklahoma. She is also the author of another paralegal text, ­Employment
Law for the Paralegal.
Joanne Banker Hames is a California attorney and instructor in the paralegal program at
DeAnza Community College, located in Cupertino, California. She earned her J.D. degree
from Santa Clara University. For several years Ms. Hames was employed as an attorney in a
busy litigation law firm. During that time she was involved in all aspects of civil litigation,
including pretrial preparation, jury trials, and appeals. For the past several years, she has
been involved primarily in paralegal education, teaching at DeAnza Community College
and previously at Santa Clara University Paralegal Institute. Civil litigation is among the
classes she teaches. She is also a co-author of three other paralegal texts, Constitutional Law:
Principles and Practice, Introduction to Law, and Legal Research, Analysis, and Writing.
Paul A. Sukys is a professor of philosophy, law, and legal studies in the Humanities
Department of North Central State College in Mansfield, Ohio. He is co-author of Business and Personal Law and Business Law with UCC Applications, and author of Lifting the
Scientific Veil: Science Appreciation for the Nonscientist, a text that explores the complex
relationships that exist among science, law, philosophy, and politics. Dr. Sukys is also a former member of the advisory committee for the paralegal program at North Central State
College and was instrumental in designing the curriculum for that program. He received
his bachelor’s and master’s degrees from John Carroll University in Cleveland. Dr. Sukys
received his law degree from Cleveland State University and his Ph.D. from The Union
Institute and ­University in Cincinnati. He also serves as an adjunct professor at Mount
Vernon Nazarene University and at Ashland University. He is a member of the Ohio Bar.
xxviii
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Pa rt I
Introduction to
Civil Litigation
Chapter 1
Litigation and the Paralegal
Chapter 2
The Courts and Jurisdiction
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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
Litigation and
the Paralegal
Chapter 1
Chapter Outline
Introduction to Civil Litigation
Types of Civil Lawsuits
Alternatives and Limitations to Litigation
Locating the Law of Civil Litigation
The Role of Technology in Litigation
The Role of the Litigation Paralegal
Skills Required of the Litigation Paralegal
Practical Tips for Success in the Law Firm
2
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3
C h a p t e r 1  Litigation and the Paralegal
Initial Case Assignments
You have just started your first day working as a litigation paralegal. You were hired as
a paralegal by a litigation law firm consisting of numerous attorneys, paralegals, legal
secretaries, and word processors. The law firm has several groups specializing in different areas of litigation. Areas of specialty include employment law, intellectual property, real property, civil rights, personal injury, insurance, and securities. Your supervisor
tells you that currently the firm has several pending cases in different phases of litigation. Some of these cases are in federal court and others are in state court. Eventually
you may be asked to assist in these cases. Initially you are assigned to the following
two cases:
Bennett v. Rikards-Hayley
In this case, Alice Bennett, the firm’s client, maintains that she was denied a promotion and eventually fired from her job at Rikards-Hayley because of sex discrimination. She claims that she suffered extreme emotional distress and was out of work
for a considerable time. She believes she is entitled to money damages from her
former employer.
Hewitt v. Portman and Douglass Financial Services, Inc.
In this case, the firm’s client, Douglass Financial Services, Inc., is threatened with
a lawsuit by Jessica Hewitt. Ms. Hewitt is claiming damages as a result of an
­automobile accident. The driver of the vehicle that collided with Ms. Hewitt is
Evan ­Portman, an employee of the firm’s client. Prior to the collision, Evan Portman
­attended a Douglass Financial office party where he consumed alcohol. Ms. Hewitt
claims that Douglass Financial, the firm’s client, is liable for the accident because it
provided alcohol to Evan Portman.
Your first assignment is to familiarize yourself with the office files for these cases.
This chapter introduces you to the area of legal practice known as civil litigation and
presents an overview of such topics as the nature of civil litigation, the distinction
between criminal and civil litigation, and the role of the paralegal in civil litigation.
After reading this chapter, you should be able to:
Commentary
Objec tive s
• differentiate between civil and criminal procedure.
• identify the role of substantive law and procedural rules to civil litigation.
• outline the basic litigation process.
• identify different types of civil litigation cases.
• list alternatives to litigation.
• differentiate between primary and secondary sources of law.
• explain the role of technology to litigation.
• list tasks performed by litigation paralegals.
• identify skills required of litigation paralegals.
• describe activities that lead to a paralegal’s success in a litigation
law firm.
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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
4
Pa r t I  Introduction to Civil litigation
civil litigation
The process of resolving private
disputes through the court
system.
trial
A court proceeding in which
parties to a lawsuit present their
evidence to a judge or jury and
the judge or jury make a decision
in favor of one party.
substantive law
Laws that determine parties’
rights and obligations as
opposed to the procedures used
to enforce those rights.
procedural law
Laws that set forth legal
procedures or methods used by
parties to enforce their rights or
to oppose claims made against
them.
criminal law
Laws that prohibit conduct that
society deems harmful and
provide for punishment in the
form of jail, fines, or probation.
Introduction to Civil Litigation
In a perfect society, discrimination would be nonexistent, businesses would not infringe
on the legally protected rights of others, parties would not act negligently, and all business transactions would be conducted with fairness and honesty. The cases introduced in
the Commentaries of each chapter illustrate that we do not live in a perfect society. As a
result, disputes arise. When the parties are unable to resolve their disputes, they rely on the
legal system. Although the legal system provides various methods to help parties resolve
disputes, one of the most important is the process of civil litigation.
civil litigation is the process of resolving private disputes through the court system.
Unless the parties are able to resolve their dispute, the litigation process usually results in a
trial, or hearing, where the parties present their evidence to a judge or jury, who then decide the dispute. Before this happens, however, a great deal of investigation, research, and
preparation takes place. Although most of this occurs outside of the courtroom, it is an important part of the litigation process. Litigation attorneys and their paralegals often spend
considerable time gathering and analyzing the facts as well as researching the law. Formal
legal documents must be prepared and filed with the court, witnesses must be interviewed,
and other evidence must be identified and located.
Differences between Criminal and Civil Cases
The U.S. court system handles both criminal and civil disputes. However, criminal and
civil cases are very different. They are based on different substantive laws and the cases
are subject to different procedural rules. substantive laws create, define, or explain our
rights or obligations. procedural laws set forth the methods used to enforce those rights
or obligations. Criminal cases are based on substantive criminal laws such as murder,
theft, and possession of drugs. Substantive civil laws include such areas as contracts, real
estate and construction, commercial and business transactions, intellectual property, and
consumer rights. One of the most common areas of substantive law resulting in litigation is the area of tort law, especially the tort of negligence. This area, often referred
to as personal injury litigation, includes lawsuits stemming from automobile accidents,
professional malpractice, and product liability. The cases presented in the Commentary
at the beginning of this and subsequent chapters are all based on different substantive
civil laws.
In some instances, the same case may result in both a civil action and a criminal case.
In such an instance, the underlying substantive law, as well as the procedural rules, differs.
For example, consider the Hewitt case described in the commentary. Evan Portman, one of
the defendants in the case, may be civilly liable to Hewitt because of the substantive law of
negligence. On the other hand, he may be subject to criminal prosecution if he was driving
under the influence of alcohol. Procedurally, the two cases would be very different, as described below. Knowing the differences between a criminal case and civil case is important
for any litigation paralegal.
Criminal Cases
Whereas the goal of a civil case is to compensate an individual
who has been damaged, criminal cases are concerned with punishing individuals who
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5
C h a p t e r 1  Litigation and the Paralegal
commit a crime. This punishment is jail, a fine, or probation. A criminal case is generally initiated and prosecuted by a government prosecutor and the case is filed on behalf
of the state or federal government. The victim is usually a witness in the case. The procedures and rules that apply when an individual is accused of committing a crime are
known as the rules of criminal procedure. To a large extent, the Bill of Rights found
in the U.S. Constitution governs the rules of criminal procedure. In a criminal case
the defendant enjoys various rights, such as the right not to testify against himself. The
defendant also has the right to a court-appointed counsel if he is indigent and is entitled to a speedy trial—all rights found in the Constitution. None of these rights exist in
civil cases.
For example, consider the Hewitt case mentioned in the Commentary. Driving under
the influence of alcohol is a crime. A local prosecutor could file criminal charges against
Portman and if he is found guilty, the punishment could be jail. Ms. Hewitt would need
to file a separate civil case to obtain money damages for her injuries and her pain and suffering. The government prosecutor would not be involved in the civil case. When the same
act results in both a civil action and a criminal case, the two legal cases are always kept
separate. They are never tried together. In part, this is because a different standard, or burden of proof, is required in the criminal case. The standard of evidence used to judge the
criminal case is higher than the standard applied in civil cases.
Considerable differences between civil and criminal cases also exist in the documents
that are filed in court, the proceedings that occur before trial, the hearings that take place
in court, and the kinds of relief or remedies the court can order. The documents, proceedings, and kinds of remedies discussed in this and subsequent chapters apply only in civil
cases.
criminal procedure
The rules that apply in a
criminal case and determine
how a criminal case proceeds
through the legal system; these
are based on federal and state
constitutions, codes, rules of
court, and cases.
civil procedure
The rules that apply in a civil
case and determine how a civil
case proceeds through the legal
system; in federal courts many of
the rules are found in the Federal
Rules of Civil Procedure and
the Federal Rules of Appellate
Procedure.
civil laws
Laws dealing with private
disputes between parties.
Civil Cases
The rules of civil litigation, sometimes referred to as civil procedure, apply only if a substantive civil law is involved. The procedures and rules that would govern
these lawsuits are known as the rules of civil procedure. The law of civil litigation consists
of both procedural and substantive laws. Procedural law sets forth the methods we use to
enforce our rights. In civil cases, procedural law answers questions such as these:
• In what court should an action be filed?
• What types of documents should be filed?
• What are the technical requirements for documents filed in court?
• How must the defendant be notified of the lawsuit?
• What are the time requirements for the various procedures?
This book concentrates on familiarizing you with the basic procedures for civil cases.
Substantive law determines what rights a party has. As your paralegal education continues, you will take specific courses in the various areas of substantive law. Today, the basic
procedures in a civil case require the use of technology. As you proceed through this text,
you will also be introduced to the role that technology plays. Along with taking courses in
substantive laws, to be an effective litigation paralegal you should continue to develop your
technology skills.
See Exhibit 1-1 for a comparison of civil and criminal cases in the Hewitt matter.
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Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
6
Pa r t I  Introduction to Civil litigation
Exhibit 1-1 Comparison of a Civil and a Criminal Case
plaintiff
The party who initiates a civil or
criminal lawsuit in court.
Civil Case
Parties
State v. Portman
Hewitt v. Portman
Documents
Usually only one pleading: a
­complaint filed by a government
prosecutor or an indictment filed
by the Grand Jury.
Both sides must file pleadings and
often more than one pleading is
filed.
Pretrial
Proceedings
Defendants usually appear in
court for arraignments and other
hearings. Some proceedings
are handled by attorneys, but in
some states defendants must also
appear.
Most pretrial proceedings are
­handled by attorneys, and the
­parties make no appearance
until trial.
Trial
Jury or nonjury; defendant is found Jury or nonjury; defendant is
found liable or not liable; to
guilty or not guilty; to prevail the
prevail the plaintiff must prove the
prosecutor must prove the case
case by a preponderance of the
beyond a reasonable doubt.
evidence.
Remedy
Jail, fine, or probation.
Money damages or other specific
relief; never jail.
Appeal
Only the defendant can appeal a
trial verdict.
Either side can file an appeal.
Copyright © 2015 Cengage Learning®
Criminal Case
defendant
The party who is sued in either a
civil or criminal case.
complaint
Usually the first document filed
in court in connection with
a lawsuit; this sets forth the
allegations or contentions of the
plaintiff and states the basis for
the action and the type of relief
requested from the court.
petition
An initial document filed with
the court asking the court for
some order. Sometimes petitions
are filed in conjunction with
a complaint (e.g., asking the
court to appoint a guardian for a
party who cannot file a lawsuit);
sometimes petitions are filed
in lieu of a complaint (e.g., in
certain jurisdictions petitions
and not complaints are used in
divorce cases).
An Overview of Civil Litigation
The rules and procedures followed in the litigation process vary from court to court. Rules
or procedures applicable in one state may not apply in another state, and rules applicable
in a state court may not apply if the action is in a federal court. However, the general litigation process is similar from one court to another.
The Parties The parties in the litigation process are known as the plaintiff, the party
bringing the lawsuit, and the defendant, the person or entity who is sued. Most often the
parties hire lawyers to represent them. Attorneys are not parties to the actions.
Pleadings Pleadings are documents that describe the nature of the dispute and, most
often, contain the factual contentions of the parties. In a contested case, both the plaintiff
and the defendant file pleadings. The process of civil litigation formally begins when the
plaintiff files a written document in court. This document is generally called a complaint,
although in some instances it is referred to as a petition. In the complaint, or petition, the
plaintiff alleges or claims that the defendant has done something, or has failed to do something, that entitles the plaintiff to relief. As noted earlier, the relief is frequently money but
may involve nonmonetary matters, such as determining the validity of a will, issuing an
injunction (an order requiring the defendant to do something or to stop doing something),
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7
C h a p t e r 1  Litigation and the Paralegal
or ordering specific performance of a contract (an order requiring the defendant to comply
with the terms of an agreement).
After the complaint or petition is filed, the defendant is served with a copy of the
complaint and is given the opportunity to contest the lawsuit. If the defendant challenges
the factual basis of the lawsuit, he or she files a document called an answer. In an answer,
the defendant states why the plaintiff is not entitled to any relief. If a defendant challenges the lawsuit on the basis of a legal issue, a defendant may file other documents. (This
method of responding to a complaint is discussed in detail in Chapters 6 and 7.) A defendant who was served with a complaint also has the option of doing nothing and ignoring
the complaint. If this is done, the defendant is said to default. In most cases the plaintiff
then obtains a judgment, an award of money damages or other relief.
Discovery
If both the plaintiff and defendant filed appropriate pleadings with the
court, litigation proceeds with discovery. Discovery is an extremely important part of the
litigation process. During this process, parties uncover facts, documents, and other evidence in possession of the opposing party, or in some cases in possession of a third party.
Discovery allows the parties to determine the strengths and weaknesses of their case and be
better prepared for trial. Paralegals play an important role in the discovery process.
Motions
Prior to trial, parties may request orders from the court related to the case.
These requests range from very simple procedural issues, such as requests for more time in
which to file a pleading, to more complicated legal issues, such as a request to dismiss the
case. These requests are known as motions. Some motions, if granted, dispose of the case
before any trial takes place. For example, if one party makes a motion to dismiss the case
and that motion is granted, there is no trial. The matter was decided without any need for
a trial (however, an appeal may result from this kind of order). Motions can also occur during or after a trial.
Trial and Judgments
If the parties do not settle their dispute, and the case is not
disposed of by a motion, the parties eventually go to court and present evidence to support their claims. This occurs at a trial, and a judge or jury decide the case. The litigation
process does not necessarily end at trial because in a civil case both sides have the right to
appeal to a higher court. The higher court (the appellate court) considers whether a substantial legal error was committed (see Exhibit 1-2). Even if no appeal is filed, if the plaintiff wins the case, collecting or enforcing the judgment may require further court action.
The plaintiff may need to obtain a writ of execution, a document that allows the plaintiff
to seize and sell the defendant’s property and use the proceeds to satisfy the judgment.
answer
The initial pleading filed by
the defendant in a lawsuit,
contesting the factual and/or
legal basis for the lawsuit.
default
Failure to file an answer or other
responsive pleading within the
proper time; can eventually lead
to a default judgment.
judgment
In a civil court action, the final
decision from the trial court.
discovery
In a civil case, the procedures
by which all parties have the
right to obtain information
from other parties, and in some
cases from witnesses; includes
such procedures as depositions,
interrogatories, and production
of documents.
motion
A request that a judge make a
ruling or take some other action,
most often in connection with a
pending lawsuit.
writ of execution
A court order authorizing the
seizure and sale of a person’s
property to satisfy a judgment
against that party.
Types Of Civil Lawsuits
Civil lawsuits range from very simple procedures to very complex court proceedings.
­Consider the following: Lombardi loans McNair $1,000. McNair signs a promissory note
for that amount, promising to pay the money back in three months. At the end of four
months McNair has still not paid back the money. Lombardi asks for the money, but
­McNair refuses to pay. The dispute between Lombardi and McNair is very simple, as are
the legal issues involved in the case. Nonetheless, if McNair refuses to pay, Lombardi could
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8
Pa r t I  Introduction to Civil litigation
Exhibit 1-2 The Litigation Process
Plaintiff Files and Serves a Complaint
Defendant Responds
Discovery Commences
or
Defendant Defaults
Judgment Entered
Pretrial Motions
(If Needed)
Judgment Entered
Either Side
Can Appeal
Copyright © 2015 Cengage Learning®
Trial
(By Judge or by Jury)
file a lawsuit against McNair. Such a case has one plaintiff, Lombardi, and one defendant,
McNair. The complaint itself will be short and straightforward.
Many cases are more complex. Consider the following: Best Roofing Material manufactures a synthetic shingle used primarily for reroofing of houses. The material is very
popular and installed on thousands of homes by various roofing contractors. After a few
years numerous roofs leak, resulting in personal property loss because of water. Many of
the homeowners want the roofs replaced, and some want additional damages for individual
property losses. The manufacturer claims that damages are the responsibility of various
installers. Installers claim the roofing material is defective. Before any lawsuits are filed,
the manufacturer filed bankruptcy. The issues in this case are extremely complex. Complex
cases like this present many practical problems. Several legal and procedural questions also
arise, as does the need for extensive pretrial preparation. Often voluminous documents
must be organized, analyzed, and indexed. Technology plays a critical role in these cases.
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C h a p t e r 1  Litigation and the Paralegal
Many courts have developed special procedures and rules for complex litigation. The
Federal Judicial Center, an education and research agency for the federal courts, publishes
a Manual for Complex Litigation, describing approaches that trial judges have found useful
for complex cases in federal court. (The Manual, along with many other publications, can
be found on the Web site for the Federal Judicial Center .) However,
whether Lombardi sues McNair for $1,000 or multiple homeowners sue several defendants, the basic litigation procedures outlined in this section apply.
Civil lawsuits are not only categorized as simple or complex but often also are described by the type of substantive law involved. The following are some common types of
civil lawsuits:
Personal injury litigation
Litigation resulting from physical or emotional
­injuries. Types of personal injury litigation are automobile accidents, accidents occurring on another’s
property, product liability, and medical and other
professional malpractice.
Employment litigation
Litigation related to employment disputes, such as
claims of unlawful discharge or discrimination.
Intellectual property litigation
Litigation related to rights in intellectual property,
such as patents, trademarks, trade names, and
copyrights.
Construction litigation
Litigation related to claims of faulty construction;
damages may include claims for property damage
or, in some cases, injuries resulting from the faulty
construction.
Securities litigation
Litigation related to stocks and other securities, which
often involve class action claims by stockholders
against a corporation or its directors and/or officers.
Business litigation
Litigation related to general business matters, such
as contract disputes and partnership disputes.
Real estate litigation
Litigation related to real property, such as ownership rights, possession rights, and landlord–tenant
issues.
Asbestos litigation
Litigation related to the various diseases and
­injuries caused by exposure to asbestos.
Civil rights litigation
Litigation related to damages claimed as a result of
the violation of one’s state or federal civil rights.
Alternatives and Limitations to Litigation
Not all civil disputes are resolved through litigation. In fact, most disputes are not litigated.
Several other methods of resolving disputes exist.
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9
10
Pa r t I  Introduction to Civil litigation
alternative dispute
resolution (ADR)
Ways to resolve a civil dispute
without resort to a legal action.
negotiation (negotiate)
Discussion between opposing
parties in an attempt to settle
a case; usually involving
compromise by both sides.
settlement
An agreement that resolves a
dispute without the necessity of
a court action.
mediation
A nonbinding process in
which a neutral third party
helps disputing parties reach a
settlement.
mediator
The neutral third person who
facilitates the mediation process.
arbitration
An out-of-court process in
which disputing parties present
their case to a neutral third
person who listens to evidence
from each disputing party and
makes a decision; the decision
is sometimes binding and
sometimes not binding.
arbitrator
The neutral third party who
presides over the arbitration
process and makes a decision.
Alternative Dispute Resolution
Because of the time and expense involved in litigation, courts and attorneys have turned
to alternative ways to settle disputes. The use of these alternative procedures is known as
alternative dispute resolution (ADR). The courts encourage the use of ADR, and many
courts require parties to try these methods before trial. The term alternative dispute resolution applies to many of the procedures that parties use in an attempt to avoid litigation.
Three common forms of ADR are negotiation, mediation, and arbitration. ­negotiation
involves the disputing parties’ discussing their problems with one another and—it is
hoped—reaching an agreement or settlement of those problems. mediation is a form of
settlement that uses a third person, known as a mediator, to help the parties come to an
agreement to settle their differences. arbitration is an out-of-court process in which a
neutral party, known as an arbitrator, hears both sides of the dispute and then makes a
decision. Alternative dispute resolution is discussed in more detail in Chapter 14.
Administrative Agency Hearings
Some civil disputes cannot be resolved through litigation because the law does not allow it.
For example, if an individual has a dispute with the government over Social Security payments, that dispute is first presented to a special board or agency established to handle such
disputes. Often, whether a case can be resolved through the courts is a question of state
law. In many states, for example, absent special circumstances, employees who are injured
on the job cannot sue their employers. However, employees are entitled to compensation
for their injuries. When disputes arise regarding the extent of the compensation, they are
resolved by a special board or agency that exists separate from the court system.
Legislative and Judicial Limitations
In recent years a great deal of criticism has been directed to the area of tort litigation relating to personal injury claims. Critics point out that these cases often result in fraudulent
practices and abuses of the legal system, as well as contributing to the high cost of insurance premiums. Awards of punitive damages are also highly criticized. As a result, various
state and federal legislatures have considered legislation to control this area. In the past,
several states adopted laws, known as “no-fault” insurance laws, that prevent or severely
limit a person in filing a lawsuit stemming from an automobile accident. Although a similar law has been considered by the U.S. Congress, it has never been passed.
More recently, legislatures have considered laws to regulate the areas of medical malpractice. The rising cost of medical care has led many states to limit the amount of damages for pain and suffering that can be awarded in medical malpractice cases.1 At least one
state court, though, has found this limit unconstitutional in that it denies the plaintiff the
right to a jury trial.2 The enactment of the Affordable Healthcare Act has led to discussion
among federal legislators concerning limits for medical malpractice cases, but no action has
yet been taken.3
Various laws also limit punitive damages. Some states impose restrictions, but more
importantly, the U.S. Supreme Court has ruled that excessive punitive damages violate
the Due Process Clause of the Constitution. Another area affected by recent legislation is
the class action lawsuit. In 2005 Congress enacted, and the president signed, a new law
known as the Class Action Fairness Act of 2005. Among the important provisions in this
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11
C h a p t e r 1  Litigation and the Paralegal
act are a limit on attorney fees and broader access to the federal courts. Critics claim that
this will be prejudicial to plaintiffs.4
In recent years, the Supreme Court has also decided cases dealing with a variety of
civil litigation topics, including jurisdiction, attorney fees, class actions, arbitration clauses,
sovereign immunity, and discovery.
Locating the Law of Civil Litigation
A litigation paralegal inevitably has questions about the rules or procedures that must be followed in particular cases. The ability to find the answers to these questions is an important
skill often developed through legal research courses, usually a required part of your paralegal
education. Familiarity with a law library is a must. Most law offices have a collection of legal
books and often this collection is sufficient for regular research needs. You may need additional resources, however, and, therefore, you should also be familiar with a more comprehensive law library. Many counties maintain these for attorneys and the public. Familiarity
with legal resources on the Internet is also a must. Many codes, rules, and cases are available
online. Web sites maintained by the state, by local courts, by educational institutions, and
even by commercial vendors often provide these resources without any cost. Two major
fee-based legal databases, Westlaw and Lexis, provide as much, if not more, materials as any
large library. There is a fee to access these sites, although many attorneys do subscribe.
One of the basic concepts when researching any question of law is the distinction
between primary sources of law and secondary sources of law. primary sources contain
the actual law itself. The primary sources of the law are federal and state constitutions,
codes (or statutes), rules of court, and opinions from the various courts. ­secondary
sources ­explain or describe the law. Form books and practice guides are important secondary sources of the law.
primary sources
Print or electronic publications
that contain the actual law
(i.e., case reporters, codes,
constitutions).
secondary sources
Print or electronic publications
about the law, such as articles,
treatises, and encyclopedias;
these are not binding on a cour…