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4-1
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.