The Court Proceedings Steps that must be followed in taking a case to court varies from State to state and between State and federal courts. It can be complicated. Our purpose in this part of the text is to give a general summary of some of the common characteristics of judicial procedure in the United States. Although this material may give the student some insight into judicial procedure, it is not intended to give a sufficient knowledge to handle his or her own litigation.
The person who brings the lawsuit in the trial court is generally called the “plaintiff’ or “petitioner,” and the against whom the suit is brought is called the “defendant” or “respondent-” Usually the plaintiff Or petitioner is listed first in the title of the case, and the defendant or respondent listed second. In some states, the appellant is listed first, even though he or she was the defendant in the trial court. A notation has been made in those cases where this has done to avoid possible confusion for the student.
The plaintiffs first pleading is called a “complaint,” “petition,” or “declaration.” (see dictionary of terms in Appendix C for further explanation of terms used in this and other chapters’. The type of lawsuit dictates the type and form of the pleading, Many volumes of pleading forms are available for use by attorneys in preparing pleadings. Some states are standardizing some forms (e.g., probate, dissolution of marriage) so that the attorney can merely check off certain items and with a few additions file an acceptable pleading.
The complaint, or other first pleading, alleges the facts upon which the plaintiff bases his or her cause of action. It must be prepared pursuant to prescribed rules and be filed with the proEkr governmental authority within a prescribed period oftime or the cause of action is generally barred forever. When suing a governmental kxxiy, such as a city, statutes generally provide that a claim for damages be presented to that entity within a certain number of days as a prerequisite to filing a lawsuit against the entity. For a discus- Sion of possible causes of action in business cases,
After the complaint is filed, together with a summons, a copy of the complaint and summons is served upon the defendant. If the defendant wishes to contest the action, he or she must file an answer or demurrer. Usually the defendant files an answer rather than a demurrer. Generally the answer merely denies the allegations in the plain- tiffs complaint. After the defendant files an answer and it is served on the plaintiff or his. or her attorney pursuant to Iceal rules, the case is at issue and is ready for pretrial proceedings.
Court Proceedings Steps In Law You Must Know
The main function of a pretrial procedure is to discover the basic issues and facts before the trial. The theory behind discovery rules is that a lawsuit should be an intensive search for the truth. not a game to be determined in outcome by consideration of tactics and surprise. The five main discovery devices are depositions, written interrogatories, motions for inspection, physical and mental examinations, and demands for admission. After the issues are joined, it is customary for the attorneys to take depositions of the respective adverse parties and of key witnesses.
The most popular type of deposition consists of oral testimony under oath given in answer to oral interrogatories of one or more attorneys that is later reduced to writing and authenticated. It is usually taken in the office of one of the attorneys. Its main function is to discover the facts upon which the opposition is relying so that preparation can be made to dispute or disprove those facts in the trial of the action. It is also useful to impeach testimony given at the trial. That is, a statement testified to in the deposition can be used to contradict conflicting testimony given at the trial.
A deposition can also taken upon written interrogatories (written questions propounded to the adverse party or to a witness that he or she must answer under oath). Written interrogatories are usually not so effec- tive as oral interrogatories, which provide for on-the-spot cross-examination, since the person has more time to prepare an answer, often with the help Of an attorney. A motion for inspection permits the court to order any party to produce and permit the inspection and copying by the party bringing the motion of certain designated documents, palkrs, bks, accounts, letters, photographs, and other objects or tangible items. In an action in which the mental or physical condition or the blood relationship of a party or of certain other persons is in controversy, the court may order the party to submit to a physical or mental or blood examination by a physician.
This discovery device is commonly used in accident cases by insurance companies to prevent fraud on the part of claimants. A significant tool in helping to avoid unnecessary expense and labor in trial preparation and in proof at the trial is the demand for admissions. This is a request by one party against the other to admit the genuineness of any relevant documents described in the request or of the truth of any relevant matters of fact set forth in the request. It should be apparent that modern discovery devices provide tools for all sides to a contest that make surprises unnecessary at the trial. The issues can be narrowed and practically all of the testimony of the parties elicited in advance. In addition to requests för the above discovery procedures, a pretrial conference can be requested in many cases. At this conference, which is held before a judge or commissioner, the parties attempt to settle the case or, failing that, to narrow the issues so that the trial can be shorter and more orderly.
It is extremely important for a person to be prepared as to the facts before his or her deposition is taken. A deposition can also taken upon written interrogatories (written questions propounded to the adverse party or to a witness that he or she must answer under oath). Written interrogatories are usually not so effec- tive as oral interrogatories, which provide for on-the-spot cross-examination, since the person has more time to prepare an answer, often with the help Of an attorney.
The trial is the time when the witnesses, parties, and attorneys congregate outside the courtroom door for amenities and last-minute discussions. It is the time when the nervous wish they had settled. Mcxst judges want to see the attorneys in chambers before trial in an effort to make a last-minute settlement. If that fails, the judge may want to discuss the case in an effort to narrow the issues and thereby shorten the time of trial. Ifthe case is to be tried by a jury, the attorneys and the judge examine the prospective jurors in an attempt to select competent and unbiased jurors. After the jury is selected, each attorney makes an opening statement in which the attorney states what he or she expects to prove during the trial.
The plaintiffs attorney then presents his or her case by examining each of the witnesses and introducing documentary evidence. As the plaintiffs attorney finishes direct examination of each witness, the defendant’s attor- ney has the right to cross-examine. After the defendant’s attorney finishes cross-examination, the plaintiffs attorney may redirect and the defendant’s attorney may then re-cross. The plaintiffs attorney presents all the evidence and rests his case, and the defendant puts on his or her case as outlined above. All of the above proceedings are subject to strict rules of procedure and evidence so that the trial may proceed in an orderly manner.
After the judgment is entered and motions, if any, are decided, the party who feels aggrieved may appeal. This party may the one who lost the case or the party who won the case but did not get as much as he or she had hoped. Some of the grounds for an appeal are that the court erred in admitting or excluding certain evidence, erred in instructing the jury, or erred in refusing the appellant a directed verdict or that the evidence was insufficient to sustain the verdict. The appellate court hears the case without a jury and without witnesses. The attorneys for the and appeal submit written briefs to the court in which they state their arguments supported by citations of previous court decisions and statutes. In addition, the attorneys are usually permitted to make an oral argument to the court.
The court examines the briefs of the attorneys and the record of the proceedings before the lower court, including the pleadings, the testimony of the witnesses, documentary evidence, and the lower judge’s instructions to the jury. After a review of the case, the appellate court renders its decision and writes its opinion.These opinions are preserved in permanently bound volumes or reports. It is these opinions that we will be studying in the cases in this book. The court in its decision may affirm the lower court’s decision, reverse it, or remand the case back to the lower court with directions to hold a new trial pursuant to certain instructions or with directions to enter a new judgment in accord. ance with the opinion given by the appellate court.
ENFORCEMENT OF THE JUDGMENT’.
If the losing party does not pay the judgment after it has been entered or after an appeal has been decided, the winning party must take steps to execute or carry out the judgment. Two common procedures for enforcing the judgment are the issuance of a writ of execution for the seizure and sale of property of the loser and a garnishment proceeding. A writ of execution directs the sheriff to levy upon sufficient property of the judgment debtor to satisfy the judgment plus costs of the execution.
If the sheriff finds sufficient property, he will seize and sell it at public auction in accordance with state statutes. Certain property of the judgment debtor is exempt from levy and execution by statutory exemptions (e.g., furnishings. personal clothing. tools of trade, a certain amount of money). If the judgment is for the recovery of specific property. the judgment will direct the sheriff to deliver the property to the winning party. A garnishment is a statutory proceeding whereby the judgment deb- tor’s property, usually money, in possession or under control of another is applied to payment of the debtor’s obligation. For example, the winning party may run a garnishment against the judgment debtor’s employer to obtain a portion of the debtor’s wages. Statutes specify the amount that can be taken under the garnishment.