Chapter Twelve Civil Procedure Before Trial. Introduction to Law, 4 th Edition Hames and Ekern ©...

Chapter Twelve

Civil Procedure Before Trial

Introduction to Law, 4th EditionHames and Ekern

© 2010 Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights

Reserved.2

Pretrial Civil Procedure Steps One party determines that a cause of action (COA) exists.

Proper court is chosen. Plaintiff complaint and summons is issued by court. Defendant is served with complaint and summons. Defendant either defaults or files an appropriate response to complaint (General Denial, Answer, Demurrer, etc.)

Both sides prepare for trial, normally by conducting discovery.

Settlement negotiations and/or alternative dispute resolution options are explored, often several times during trial preparation, and parties report to the court periodically for “conferences”.

The trial date is set.



Reserved.3

The Cause of Action

A cause of action is a factual situation that creates a legally recognized right to damages or other relief.



Reserved.4

Jurisdiction

Original Jurisdiction: is the power to first hear a case; court of original jurisdiction is where the trial takes place

Jurisdiction: is the power or authority to act in a certain situation; the power of a court to hear cases and render judgments



Reserved.5

Jurisdiction (cont.)

Subject Matter Jurisdictionfederal court jurisdictionstate court jurisdiction

Personal Jurisdiction

In Rem Jurisdiction

Venue



Reserved.6

Civil Pleadings

Complaint

Answer

Counterclaim

Cross-Claim Third-party Complaint



Reserved.7

The Complaint(the basic components)

1. the Caption2. the Allegations3. the Prayer4. the Date & the Address,

Telephone Number, and Signature of the attorney for the plaintiff



Reserved.8

Summons

Summons: is one of the documents used to begin a legal action; it is served on the defendant and tells the defendant to appear in court and respond to the charge or risk a default.



Reserved.9

Service of Process

Personal Service

Substituted Service

Publication Service by Mail

Waiver

Who Can Serve

Date of Service

Proof of Service



Reserved.10

The Answer

Answer: The most common response filed by a defendant is called an answer

Affirmative Defenses General Denial Specific Denial



Reserved.11

Pretrial Motions Notice of Motion

Declaration in Support of Motion

Memorandum of Points and Authorities in Support of Motion

Declaration in Opposition to Motion

Memorandum of Points and Authorities in Opposition to Motion



Reserved.12

Discovery

Interrogatories Request for Admissions Request to Produce or Inspect Deposition Request for Medical Examination

Disclosure



Reserved.13

Settlement

A settlement occurs when the parties reach an agreement on some or all of the issues without actually going to trial. The remaining unresolved issues are litigated or tried.

Compromise and release A settlement agreement that ends the case.

Dismissal With prejudice Without prejudice; with leave to refile.

Chapter Twelve Civil Procedure Before Trial. Introduction to Law, 4 th Edition Hames and Ekern ©...

Documents

Transcript of Chapter Twelve Civil Procedure Before Trial. Introduction to Law, 4 th Edition Hames and Ekern ©...