Chapter 4 - Going to Court
Introduction – Chapter provides information on appearing in court, either as a witness or party in a case
Most common: being called as a witness for a civil case
More serious: when you yourself are being sued
In either case, should treat as a serious matter
Chapter Outline
You Are Summoned Getting Representation Step by Step Not Going to Trial Trial Appeal
You Are Summoned Served by an official of the court or by
certified mail Summons indicates the time by which
the defendant must respond to the complaint The time is the legal deadline for filing
an answer in court (often thirty days) The complaint is attached to the
summons
You Are Summoned: cont’d
The complaint states Who is bringing the action
[plaintiff(s)] Who is being sued [defendant(s)] The allegations made by the plaintiffs
– statement of “facts” The relief (injunction, declaratory,
monetary damages) being requested
Getting Representation
Important steps for the defendant Retain all papers, including the
envelope, noting the date and time received, in which the papers were mailed or carried
Don’t discuss complaint with the plaintiff
Do immediately notify supervisor about the lawsuit
Getting Representation: cont’d
Do “get yourself a lawyer” Ordinarily provided information on how
to do this during orientation Get representation even if lawsuit
appears frivolous or ridiculous, or you know nothing about the facts that are in the complaint
Take all the papers received, and any notes you made, and other relevant information, to the attorney
Getting Representation: cont’d
Ordinarily, employee will be represented by government lawyers or, in some cases, by outside counsel hired by the agency Done at no financial cost to employee
Getting Representation: cont’d This assumes employee was operating
within the “scope of employment” If the employee was, the government will
take responsibility for his actions If the employee was not, the government
may decline representation Employee, when representation is
declined, is notified and must still secure such representation, at his own expense
Getting Representation: cont’d “Scope of employment” refers to the
employee having acted in such a manner that the government will take responsibility for his actions. Factors in making this determination include: Agency philosophy Agency policy Employee’s job description Post orders Training
Getting Representation: cont’d
Liability insurance – covers actions within scope of insurance policy
Insurer may have a tendency to want to settle to avoid costs of litigation This could be detrimental to prison
administration by serving as an incentive for inmates to sue, regardless of merit
Step-by-Step Complaint is served by summons Representation is secured Employee provides her legal counsel
with the required information needed for the response
Answer is filed in response to the complaint
Must be filed by court specified deadline
Step-by-Step: cont’d
Employee’s attorney may file motions to dismiss the case for such reasons as Improper service (notice) of the
complaint Lack of court jurisdiction No basis for judicial relief
Step-by-Step: cont’d
If the case is not dismissed, discovery occurs
Four types of discovery Interrogatories – written questions
submitted by one side for response by the other side
Step-by-Step: cont’d
Depositions – questions asked in person and under oath, and their responses
A court reporter takes down what is being said
No judge is present Purpose of this process is to try and nail
down what testimony the other side has, and to get an idea of the strengths and weaknesses of the overall case
Step-by-Step: cont’d Motions to produce documents –
obtaining written information from the other side
Excludes attorney work product, such as notes taken by the attorney during the interview of the employee she is representing
Step-by-Step: cont’d Requests for admissions – one
party asking the other whether it is true that certain facts exist
Intended to identify information that is not in dispute
Not Going to Trial Motion for summary judgment –
effort to have case dismissed Attorney files motion alleging her
party is entitled to win the case, based on the law governing the case, because the facts shown in affidavits (sworn written statements) and other documents are not in dispute and do not require trial
Other side has opportunity to respond
Not Going to Trial: cont’d
Court decides whether to deny, in which case, the court process continues, or to grant If defendant’s motion for summary
judgment is granted, the case is dismissed
If plaintiff’s motion is granted, court decides appropriate relief, such as money damages and injunction
Not Going to Trial: cont’d
If case proceeds to trial, may see settlement discussions prior to the trial beginning Such an outcome is less likely in
prison cases
Trial May occur with or without a jury – the jury
is solely a fact-finding body As a defendant, employee may be called
to testify Employee may also be called as a witness If called to testify
Notify superiors Contact the attorney who is calling you,
to learn more about your role as a witness
Trial: cont’d
Some basic rules for being a witness Review records and reports available to
you that relate to the facts of the case Do not memorize your testimony
Dress and act professionally Try to remain as calm as possible
Take the time you need to answer the question
Trial: cont’d
Answer only the question asked, exactly as it is given to you
If you don’t understand a question, ask for clarification
Answer as briefly as you can If you do not know the answer to a
question, say so If a wrong or misleading answer has
been given, clarify your answer as soon as you can
Trial: cont’d In response to a question, it is okay to
say that you have discussed your testimony before trial with your attorney and other appropriate parties
Be courteous – if the judge or an attorney interrupts, stop talking and wait for someone to tell you to go on
Trial: cont’d At the end of all testimony, the
attorneys will summarize the points that are made and most favorable to their clients
If there is a jury, the judge will give instructions These are the rules that must be
used to decide the facts of the case
Trial: cont’d After deliberations, a verdict is
returned If defendant wins, the case is dismissed If plaintiff wins, the court must decide
the appropriate relief After the verdict and damages are
decided, the court enters a judgment This is the official court order
Appeal
May be filed by the attorney for the losing party There is a time limit for this filing
In a civil case, either side may appeal The government may provide the employee
with representation at no cost Appeal is filed in an appellate court – for
example, in the federal system, the appeal is filed in the court of appeals for that circuit
Appeal: cont’d
Appeal is handled by papers being filed Court will set an argument date for
the appeal A lawyer for each side will argue the
case Arguments are primarily on the legal
merits of what has occurred in the trial court
Appeal: cont’d
Appeals courts ordinarily don’t review the case facts
Only the issue of whether certain facts should not have been considered, and the issue of whether there is enough evidence in the record to support the verdict will be reviewed
Appeal: cont’d
Judgments that are approved (affirmed) in the appellate courts are returned as final
If the appellate court finds significant mistakes were made, it will return the case to the trial judge with instructions on how to proceed
If the case has to be tried over, this is called a reversal and a remand.
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