Essay on "Protocols of Litigating a Civil Case"

Essay 26 pages (7018 words) Sources: 10

[EXCERPT] . . . .

protocols of litigating a civil case under American jurisprudence

This paper discusses the techniques and strategy involved in a typical tort litigation. The basic stages of a lawsuit addressed are: Pleadings, motion practice, discovery and trial. The research indicates that a wide range of materials are necessary and vital to a thorough understanding of the lawsuit. It is important that the sources be reputable and representative of the current law and practice in the applicable jurisdiction. Statutes and rules passed by the legislature, prior court cases, commentary from well-accepted and learned legal scholars as well as practical guides and manuals are all necessary to have the complete understanding that otherwise will only come with years of hands on experience.

Table of Contents

Abstract -- a brief summary of contents

Table of Contents

Introduction-General introduction to the paper

Review-Review of research and results

Methodology-Discussing the data & how it was gathered

7

a.) Analysis & findings

Legal Research

Cause of Action

Elements

Pleadings

Complaint

Jurisdictional allegations

Factual allegations

Stating the cause of action

Prayer for relief

Service of Process

Answer

Deny/Admit/Without Knowledge

Aff. Defenses

Counterclaim

Reply

Motions

Attack Pleadings

Rule 12(b)(6)

Judgment on Pleadings

14

Procedural

14

Discovery

14

Summary Judgment

15

Discovery

16

Scope

16

Types

17

Interrogatories

17

Production

17

Admissions

18

Depositions

18

Experts

Deadlines/Sanctions

19

Mediation

19

Trial Order

21

Trial calendar

21

Disclosures

21

Deadlines for remaining discovery and motions

21

Trial

Jury Selection/Voir Dire

22

Opening Statements

22

Evidence

23

Admissibility

23

Documents

23

Direct

24

Rebuttal

24

Character

24

Expert

25

Form of questions

25

Objections

26

Directed Verdict

27

Closing Arguments

27

Jury Instructions

28

Verdict

29

b) Conclusion

29

VII. Reference sources

30

Introduction

This essay will identify and explore the basic essential elements to American tort litigation. It is intended to be as broad as possible and will use the Federal Rules of Civil Procedure and the Federal Rules of Evidence as the legal basis. There is no uniform civil procedure code throughout the states, though most states have adopted their own rules of civil procedure or civil codes that conform to the basic tenets of the federal rules.

Regardless of the tort involved, the plaintiff (the party making the claim and seeking relief from the court) must prove the elements of the tort using admissible evidence. The elements will always involve a wrong committed by the defendant and damages suffered by the plaintiff. The defendant will defend the lawsuit on the basis that he/she did not commit a wrong, the wrong was justifiable and/or excusable or that the wrong resulted in no damage to the plaintiff.

Whether or not evidence is admissible is determined by the Federal Rules of Evidence. Like with the procedural rules, states adopt their own evidence code, usually modeled after the federal rules. The admissible evidence is obtained through the process of discovery. In this process, parties and witnesses must provide truthful information as to how they will testify at the trial, as well as produce certain requested documents. This process enables all the parties to the lawsuit know the relative strengths and weaknesses of their case.

Once the evidence is obtained, the parties proceed to trial. A judge or jury hears the evidence and determines whether the plaintiff has proved the required elements and/or if the defendant has proved any defenses. If the plaintiff wins, she gets a judgment in her favor which she must then satisfy. This essay will explore all of these topics and issues in detail.

Review

The principal sources used in this essay were the Federal Rules of Civil Procedure, the Federal Rules of Evidence and the legal encyclopedia, American Jurisprudence. The Rules of Procedure set out the different stages of the litigation and set forth the requirements for conduct during each stage and the sanctions or penalties for not adhering to the rules.

The Rules of Evidence determine which evidence (including oral testimony and written documents) will be allowed to be used by a party in proving their case. The general rule is that relevant evidence is allowed. The Rules of Evidence define more specifically which evidence is relevant and which is not.

American Jurisprudence describes how the courts have interpreted these rules when issues have arisen in actual lawsuits. The comments explain the purpose of the rules and give practical advice as to how the rules actually work. These comments are in the form of summaries of case law opinions which have defined the basic concepts and components of an area of law, including the procedures and aspects of the trial itself.

A number of secondary sources were consulted to provide authoritative analysis of the typical tort litigation. While many of these sources were obtained from the internet, only those sources which are provided by government agencies or government sanctioned entities (such as a state's bar association) or well established trade organizations (such as the American Bar Association) and therefore have some inherent credibility were referenced.

Methodology

Analysis and Findings

This essay does not purport to define typical tort litigation in terms of federal or state law, but rather to present the typical tort litigation considering all of the jurisdictional distinctions. A thorough review of the Rules reveals that typical tort litigation has the following stages: Pleadings, Motions, Discovery and Trial. Within the pleading the stage it is necessary to properly identify all of the other parties and the elements. These elements must also be properly specified in the pleading. Finally, the pleading must be properly served on the other parties to the lawsuit. Thus, while 'Commencing an Action' and 'Parties' are treated separately under the Rules, they are dealt with in this essay as part of the Pleadings.

The Rules also clearly specify the procedures for filing motions. Motions settle disputes within the lawsuit. Many motions are directed toward the pleadings and seek to have the pleadings nullified and/or dismissed. Nonetheless, they are usually filed after the pleadings are filed and are therefore treated separately in this essay. Also, many motions are designed to resolve discovery and trial issues and have no impact at all on the pleadings.

Legal Research

The legal research really begins in the initial client interview. The attorney and/or paralegal should elicit specific information about the 'incident' sufficient to identify which tort(s) can be plead and what the damages are. The initial interview should also reveal who the potential witnesses are both for and against the client. Finally, the law firm should probe deep enough in the interview to identify potential problems in the case such as facts that can give rise to affirmative defenses.

Once the client has been thoroughly interviewed, the proper torts must be identified. Here the legal encyclopedias (such as American Jurisprudence) can help. They are designed to describe what types of fact patterns have and have not been held by courts to qualify as torts. Legal encyclopedias are considered secondary legal authority and (unlike secular encyclopedias in academic research) may be cited to provide clarification to legal issues.

The tort of negligence, for instance, has four elements that must be proved: Duty, breach of duty, causation and damages (Am Jur Negligence §71). The element of duty requires the Plaintiff to prove that the Defendant was obligated to do something he did not do, or obligated to not do something that he has done. A person is obligated to use reasonable care when operating his vehicle. The term reasonable care will be defined to mean a different standard in different locals depending on that jurisdictions laws and community standards, and often times is left to the jury to determine. (Am Jur Negligence §135).

The second element is breach of the duty. In a car accident case, the Plaintiff will have to prove that the defendant did not exercise reasonable care in operating his vehicle. The third element is causation; the breach of the duty must have led directly to injuries suffered by the Plaintiff. The fourth element is damage; the Plaintiff must show that he or she was injured in a manner that is compensable and that the injury was the direct and foreseeable result of Defendant's tortious conduct.

There may be more than one tort committed and in that instance the lawyer/paralegal will need to conduct additional research to determine the elements of the other torts.

Pleadings

Complaint

Once the research has been done, the pleading (lawsuit) needs to be drafted. Most civil lawsuits commence with the complaint. The complaint must identify the proper defendant(s), such as any person or entity that has legal liability (Am Jur Parties §51). The complaint should be composed in separately numbered paragraphs, with each paragraph being a single sentence or single thought to the extent practical (Fed. R. Civ. P. 10(b)).

The complaint also must set forth certain jurisdictional allegations (Am Jur Pleading §171). Some of these allegations concern personal jurisdiction. The person sued must be over 18 and of the requisite mental capacity to be sued. The defendant must subject… READ MORE

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