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Chapter 4—Litigation

REED SHEDDREED SHEDD PAGNATTARO PAGNATTARO MOREHEAD MOREHEAD

F I F T E E N T H E D I T I O NF I F T E E N T H E D I T I O N

TheThe Legal & Legal & RegulatoryRegulatory Environment of of BusinessBusiness

McGraw-Hill/IrwinCopyright © 2010 by The McGraw-Hill Companies, Inc. All rights

reserved.

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An impartial enforcement and An impartial enforcement and dispute resolution process is dispute resolution process is essential to any systemessential to any system

that preserves private that preserves private

property interests. To property interests. To

conduct business and enforce conduct business and enforce rights, we need a process to rights, we need a process to resolve disputes.resolve disputes.

Introduction

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To understand the litigation process and the parties to a case.

To learn how issues can impact litigation;To understand the steps and costs associated with

discovery.To learn about the pretrial and trial procedures in

litigation.To appreciate how cases are decided and the

process for appeal and enforcement of judgments.

Learning Objectives

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Parties Plaintiff v. Defendant

Counterclaim- Counterplaintiff v.

Counterdefendant

Appellant v. Appellee

Petitioner v. Respondent

Third-Party Defendant

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Getting Into CourtStanding to Sue

SubjectMatterJurisdiction

PersonalJurisdiction

Need all three to get into court

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Getting Into Court

• Must involve actual case or controversy

• Plaintiff must have personal

stake in resolution

Standing

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Getting Into Court

SubjectMatterJurisdiction

•Power to hear type

of case

•General or limited

jurisdiction

•E.g. probate court,

traffic court,

federal courts.

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Getting Into Court

PersonalJurisdiction

•Court’s authority over parties to case

•Summons/service of process

•Long arm statutes – minimum contacts

•Extradition

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Class-Action Suits Filed On Behalf Of All With Similar

Claim Notice Given To All Members Of Class Plaintiffs Pay Court Costs Settlement

Benefits Class Release All Claims

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Procedural RulesProcedural RulesPleadingsPleadings

DiscoveryDiscovery

Pretrial Pretrial ConferenceConference

TrialTrial

Post trial Post trial MotionsMotions

AppealAppealPretrial Pretrial MotionsMotions

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Pre-Trial Procedures

Pleadings

Complaint

Answer- Counterclaims

Default Order – court may order if no answer filed.

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QUIZFor any court to exercise authority in any For any court to exercise authority in any given case, which of the following given case, which of the following mustmust happen: happen:a.a. Court has jurisdiction of subject matterCourt has jurisdiction of subject matterb.b. Court can exercise personal jurisdiction of Court can exercise personal jurisdiction of

the defendantthe defendantc.c. Plaintiff has standing to bring the case before Plaintiff has standing to bring the case before

the courtthe courtd.d. All the aboveAll the above

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PurposePurpose

•Lawsuit Based Lawsuit Based On Merits Of On Merits Of CaseCase

•Assist In Trial Assist In Trial PreparationPreparation

•Narrow IssuesNarrow Issues

InterrogatoriesInterrogatories

Request for Request for Production of Production of

DocumentsDocuments

DepositionDeposition

Request for AdmissionsRequest for Admissions

DiscoveryDiscoveryTypes:

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Scope of DiscoveryEvidence

Admissible At Trial

DiscoverableInformationAllowable if it will lead to evidence admissible duringtrial

High Cost of Discovery caused by• time searching for information• preparing depositions• copying and shipping costs• attorneys fees interpreting requests

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Discovery Abuse Parties become aggressive

Damage to litigation process

Key is to act reasonably and

prudently

Avoid extreme positions

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MotionsPretrial Determination of

Question of Law

Statute of Limitations Judgment on Pleadings or

Summary Judgment (concludes litigation prior to trial)

Frivolous Cases (Fed. Rule 11)

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Trial – Jury Selection Voire Dire – to speak the truth

Challenges For cause

Peremptory

Constitutional violations

Elimination of peremptory challenges?

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Opening Statement – Overview of

Essential Facts

TrialTrialJury Jury

Selection – Selection – Voir DireVoir Dire

Presentation Presentation of Evidenceof Evidence

DirectedDirectedVerdictVerdict

Closing Closing ArgumentsArguments

Instruction Instruction to Juryto Jury

Jury Verdict

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Burden of Proof Burden/responsibility of evidence Criminal cases- beyond a

reasonable doubt Civil cases

Preponderance of evidence Clear & convincing proof

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Civil Case Decision Judgment- in favor of party

that won jury’s verdict

Judgment notwithstanding the verdict- post trial motion. Judge may enter judgment counter to jury’s verdict

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Post-Trial Appeals procedure

Brief Oral argument Judge/Justice’s opinion

Deference to trial courts Enforcement

Execution Garnishment

Doctrine of Res Judicata

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QUIZ““Directed verdict” refers to theDirected verdict” refers to thea.a. Power of court over parties involved.Power of court over parties involved.b.b. Power granted to litigant to reject jurors.Power granted to litigant to reject jurors.c.c. Power of court to order sworn questioningPower of court to order sworn questioning of witnesses outside of court.of witnesses outside of court.d.d. Power of court to grant a decision in Power of court to grant a decision in

favor of defendant when insufficient favor of defendant when insufficient evidence is presented at trial.evidence is presented at trial.