January 5th Notes

Litigation Basics
January 5, 2010

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For this class, I will be taking notes from the book and then adding Bruce's class discussion to the notes.  If he states something is wrong from the book or not necessary to know for his class, it will not be included.  I hope this helps studying both his class and the book easier.  I also plan to add the chapter review questions at the end of the notes as Bruce takes exam questions from these.  I hope to compile them with answers to use as an exam study tool.  Sorry for the delay in getting the notes posted, preschool started this week too! 

Sarah
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Job Available
Well-established Tacoma Company
$10/hr
Administrative & Legal Support
Start Immediately
40hrs 8-5pm
Hirst@LawDawgs.com (Peter)

-Will be late this week
-Surcharge for handouts (2 or 3 a week)
-Rule books not until week 3 (check to see what ones to bring to class)


Chapter 1    page 5

Civil Litigation
-the process of resolving disputes through the court system
-all cases can end up in litigation
-without resolve, litigation results in a trial

Trial
-the process of deciding a case, which occurs if the dispute is not resolved by pleadings, pretrial motions, or settlement
-usually takes place in open court
-may be followed by a judgment, an appeal, etc.

Civil Procedure (rules of civil litigation)
-the laws and rules that govern how non-criminal lawsuits are handled by the individuals involved and by the court

Civil Laws (amendments 14 & 15)
-dealing with private disputes between parties

Substantive law
-basic law of rights and duties, the law is fair and even handed
-creates, defines, and explains what our rights are
    -example: contract law, criminal law, accident law, law of wills
1. Substantive civil law: contracts, real estate, construction, transactions, intellectual property, consumer rights, tort law, employment law, corporate law
2. Substantive criminal law: murder, theft, drug possession

Criminal law
-having to do with the law of crimes and illegal conduct
-not concerned with rights or remedies of injured
-concern of punishing one who committed crime

Criminal Procedure
-the procedure for a person accused of a crime is brought to trial and given punishment
-victim is usually a witness in the case, not a plaintiff
-Bill of Rights tends to govern this

-When the same act results in both a civil action and criminal case, the two cases are kept separate, never tried together
-Why? different standard or burden of proof

Differences of Criminal and Civil Cases
Criminal
-State versus Accused
-one pleading (filed by government prosecutor of indictment by grand jury)
-defendant appears in pretrial
-guilty or not guilty
-jail, fine, probation
-only the defendant can appeal

Civil
-Victim versus Accused
-pretrial is handled by attorney
-liable of not liable
-money damages or specific relief
-either side can appeal

Procedural law
-the way the law is applied, rules of carrying on a civil lawsuit or criminal case, enforcing rights in court
    -example: law of pleading, law of evidence, law of jurisdiction
-answer questions on: what court, types of documents, technical requirements, notification, time requirements

Overview of Civil Litigation
-rules and procedures vary from court to court, general litigation is similar from one court to the next
-very similar in WA state (don't take that for granted)

Plaintiff
-person who starts the lawsuit against another

Defendant
-person against whom a legal action is brought, can be civil or criminal

Complaint
-the first main paper filed in a civil lawsuit
-includes a statement of wrong or harm done to plaintiff, a request for specific help from the court, and an explanation of why the court has the power to do what the plaintiff wants
-sometimes called a petition

Petition
-a written request to a court asking it take a particular course of action

Answer
-first pleading by the defendant
-responds to the charges and demands of the plaintiff's complaint
-may deny the charges and present new facts to defeat them, may show why the plaintiff's facts are invalid

Default
-failure to take a required step in a lawsuit
-can lead to "default judgment"

Judgment
-official decision of a court about the rights and claims of each side of a lawsuit
-judgment on the merits

Discovery
-formal and informal exchange of information between two side of a lawsuit
    -example: interrogatories, depositions

Motion
-request that a judge make a ruling or take some action
-either granted or denied
-can occur before, during or after trial

Writ of Execution
-judge's order requiring that something be done outside the court or authorizing it to be done
    -example: court to take debtor's property to pay debt

Litigation Process
1. Plaintiff Files or Serves a Complaint
-If defendant responds:
2. Response
3. Discovery
4. Pretrial Motions
5. Trial
6. Judgment
7. Either side can appeal
-If defendant does not respond:
2. Defaults
3. Judgment

Common types of civil lawsuits
-personal injury litigation, employment litigation, intellectual property litigation, construction litigation, securities litigation, business litigation, real estate litigation, asbestos litigation, civil rights litigation

Alternative Dispute Resolution (ADR)
-ways to resolve legal problems without a court decision
-courts encourage its use
    -example: arbitration, mediation, minitrial, rent-a-judge, summary jury trial

Three common forms of ADR
1. Negotiation
    -discuss, arrange and bargain about a business deal
    -discuss a compromise to a situation
    -settlement: agreement on price, debt, payment of debt or disposition of lawsuit
2. Mediation
    -outside help in settling dispute using a mediator
    -mediator can only persuade, not force people into a settlement
3. Arbitration
    -resolution of a dispute by an arbitrator (not a judge) whose decision is binding
    -submission of a dispute for decision is often the result of an agreement (arbitration clause) in a contract
    -compulsory: if arbitration is required by law

-Some civil disputes cannot be resolved through litigation like Social Security issues

Legislative Limitations
-criticism of tort litigation with personal injury claims
    -fraud and abuse of legal system
-"no fault" laws to prevent or limit lawsuits of auto accidents
-Class Action Fairness Act of 2005: limit on attorney fees, more access to federal courts

Judicial Limitations
-consider the constitutionality of punitive damages
-excessive damages violate the Due Process Clause of 5th and 14th Amendments
-Supreme Court had been hearing cases on attorney fees, class actions, arbitration clauses, sovereign immunity, discovery

Primary Sources   page 14
-books that contain the actual law
    -example: federal and state constitutions, code books, case reporters
-local rules of court: rules adopted by individual courts and apply only in that court
   
Secondary Sources   page 14
-books that explain or describe the law
-quicker and easier to use
-form books: books with sample forms to prepare documents
    -example: legal encyclopedias, practice manuals, textbooks, legal periodicals


Skills required by the paralegal
1. oral and written communication skills
2. organization and analytical skills

Paralegal Job Description   page 16
-organizing files, calendars
-interviewing, gathering evidence, researching
-drafting pleadings, motions, discovery forms
-reviewing
-serving subpoenas
-preparing client, exhibits, proposed judgments
----Cannot practice law, usually do not appear in court, cannot ask questions as a deposition, cannot give legal advice


Chapter 1 Review Questions
1. What is difference between civil procedure and criminal procedure?
2. What is the importance of substantive laws to civil litigation?
3. What are the steps in the litigation process?
4. How are a simple case and a complex case alike?  How do they differ?
5. What are some of the alternatives to litigating a case?
6. What are the primary sources for finding the law of civil litigation?
7. What are the secondary sources for finding the law of civil litigation?
8. What are five tasks performed by litigation paralegals?
9. Why is it important for all litigation paralegals to know how to do legal research?
10. What skills must a litigation paralegal have?  Why are these skills needed?