Chapter 8 pleadings civ lit 2nd

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Chapter 8 pleadings civ lit 2nd

  1. 1. Civil Litigation:Process and Procedures Chapter Eight Pleadings
  2. 2. Pleadings  Documents filed  With a court  To commence  Or respond to a lawsuit  Must conform to  State or federal Rules of Civil Procedure  Local court rules  Judges’ information sheetsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 2
  3. 3. Rules of Civil Procedure Insure that trials are conducted fairly & produce a just result Federal, state & local Address:  Pleading, discovery & trial procedures  Filing deadlines  Document formatCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 3
  4. 4. Statute of Limitations Time frame within a party must bring a suit Fundamental fairness can extend the time to begin with the discovery (knew or should have known) of the injury, rather than the date the injury was received. May be extended for minorsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 4
  5. 5. Commencing a Suit Depending on the jurisdiction, an action commences with a  Complaint  Writ of Summons  Summons  Petition  Notice to Plead  Cover or Case Designation sheetCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 5
  6. 6. Notice Pleading Federal & some state courts Must give notice of the event & the claims arising from that event (short & plain statement) The basis for the claim & damages will be more thoroughly identified during discoveryCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 6
  7. 7. Fact Pleading  Must state  Material fact on which the cause of action or defense is based  Averments of fraud or mistake  Time, place & items of special damage  Conditions precedent  Jurisdiction  Must attach documents that form the basis of the claimCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 7
  8. 8. Notice v. Fact Pleading Notice pleading requires that enough information be included to give the defendant notice of the events & claims against him Fact pleading requires that all relevant facts & claims be included in the complaintCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 8
  9. 9. The Summons A federal summons can be downloaded, copied & prepared It advises the defendant  Of the lawsuit  The time within which a response must be filed  What will happen if there is no response  How to obtain a lawyerCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 9
  10. 10. Summons Preparation Completed by the legal team The clerk of court adds the filing information  Case number  Judge assigned The return of service form is on the back The summons & complaint are served, and the return of service is completedCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 10
  11. 11. Civil Cover Sheet Summary page used by data entry personnel  Names & addresses of the parties  Counsel contact information  Types of claims asserted  Basis of jurisdiction  Class action or related claims?Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 11
  12. 12. Drafting the Complaint Caption  Identity of the parties  Jurisdiction & venue of the court  Document title  Docket Number provided by Clerk Numbered paragraphs  One fact per paragraph is ideal, but difficultCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 12
  13. 13. Jurisdictional Claim Identify parties & situations enough to establish personal jurisdiction Describe claim to establish subject matter jurisdiction  Jurisdictional limits on amount in controversy vary  Courts may be limited in the types of claims they can hear (juvenile, probate)Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 13
  14. 14. Elements ofthe Cause of Action Each cause of action appears as a separate count Each count need not plead elements individually in a notice pleading jurisdiction Each count must contain all the necessary elements in fact pleadingsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 14
  15. 15. Counts Counts will describe each separate cause of action Complaints divided into counts for clarity Case, if heard by court, will be decided for each countCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 15
  16. 16. Damage Allegation Must claim harm  Personal physical injury  Property damage  Monetary losses  Out-of-pocket expenses  Lost wages  Loss of earning capacityCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 16
  17. 17. Prayer for Relief “Wherefore” clause Related to damages Asks the court for relief, based upon the alleged harm“Wherefore the plaintiff demands judgment against the defendant in a sum exceeding $75,000 plus interest, costs, attorney’s fees, and such other relief as the court deems reasonable.”Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 17
  18. 18. Unliquidated damages Unliquidated damages are not calculable by mathematical calculation (pain and suffering) In situations with unliquidated damages, some court rules will not permit including a specific amount (example: $12,000,000) in requestCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 18
  19. 19. Signatures Attorney certification  Familiar with facts & claims  Based on bona fide basis in law  No improper purpose  Facts have been investigated  Believes the information to be true & accurate  Can be sanctioned for frivolous claimsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 19
  20. 20. Verification Client signature  Subject to perjury  Client asserts the truthfulness of the claims  Not required in all jurisdictionsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 20
  21. 21. Filing Fees Must be paid with filing Vary by jurisdictions May be possible to file & pay online Indigent parties may seek waiver (in forma pauperis) After-hours filing may be possible in some jurisdictionsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 21
  22. 22. Electronic Filing Rules vary by jurisdiction Must submit materials in format specified  Word  WordPerfect  PDF, etc. Both parties should consent to electronic filing where it is an optionCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 22
  23. 23. Service of Process Insures due process: notice of the suit, an opportunity to be heard Generally, service is performed by  An adult (frequently the sheriff)  Not a party  At recipient’s place of business or residence  To an adult Service is confirmed by affidavit Right to service can be waivedCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 23
  24. 24. Calculating deadlines For a federal deadline of 20 days: S M T W T F S served Begin 2 3 4 count 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Holiday Due dateCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 24
  25. 25. Amend orSupplement the Complaint New information after filing Correct or add material Before a responsive pleading, no permission required After a responsive pleading, only upon a motion granted by the courtCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 25

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