C LITIGATION AND ALTERNATIVE DISPUTE RESOLUTION · 104 CHAPTER 6 Civil Litigation and Alternative Dispute Resolution (perhaps those conferring jurisdiction on the court, for example)

SUMMARY OF KEY CONCEPTS

Section 1. The Nature of CivilLitigationCivil litigation is the process of using the courts toresolve controversies about someone’s legal rightsand responsibilities. The popular term for such aproceeding is “lawsuit.” In the typical lawsuit, oneparty seeks monetary compensation or the court’srecognition of a legal right, such as the ownershipof real property, but actions in equity are also liti-gation. So a petition seeking a court order (e.g., aninjunction) to stop the destruction of an endan-gered bird’s natural habitat is also a form of litiga-tion. The characteristic of litigation is the partici-pation of opposing parties in a proceeding todetermine legal rights and responsibilities. Uncon-tested proceedings for adoption, bankruptcy, di-vorce, or probate of a will are not litigation. Yet, lit-igation can occur when there is controversy overthese matters.

Most lawsuits are brought to achieve one ormore of these purposes:

• to assert a legal right;

• to obtain a remedy for breach of contract;

• to obtain a remedy for the harm caused byanother person’s wrongful act or omission; or,

• to terminate a legal relationship.

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Litigation occurs only when there is a contest overthese matters by opposing parties.

The American judicial system uses the adver-sary process to resolve legal controversies. Theunderlying concept is that each party to a disputewill present all of the relevant evidence and legalauthority favorable to its case, and thus the courtwill learn of all facts and legal authority which itneeds to resolve that controversy. This premise isreinforced by the ethical obligation of attorneysunder the candor rule, which requires them to in-form the court of all material facts and legal au-thority that are unfavorable to their own client.

The most fundamental question of law is theplaintiff’s standing to bring suit. If the plaintifflacks standing, the court will dismiss the case.Standing requires that a bona fide legal interest ofthe plaintiff be at stake. It cannot be a hypotheticalor prospective interest.

Every jurisdiction has a statute of limitations,which requires the plaintiff to initiate litigationwithin a prescribed period of time (e.g., one, two,or three years). That statutory period generally be-gins when the plaintiff knows, or should know, thathis legal interest has been harmed or is in immedi-ate danger of being harmed. A plaintiff who allowsthat statutory period to expire is generally barredfrom filing a lawsuit. The purpose of a statutorylimitation period is to ensure that evidence andmemories are still available and reasonably freshwhen litigation occurs.

Unusual circumstances, however, might legallyexcuse the plaintiff from that penalty. For example,if the plaintiff is the only available witness for in-dispensable testimony, the statutory period mightbe suspended (i.e., “tolled”) during the months heis in a coma from injuries received in an accident.Without his authorization and testimony, no oneelse could effectively act on his behalf.

In some circumstances, it is not sufficient to filethe suit before the statutory period has run out.Once the injury and most relevant facts are knownto the plaintiff, justice is best served by prompt ac-tion. Procrastination invites the very problems alimitation period is intended to avoid. Conse-quently, courts apply the doctrine of laches—thatthe plaintiff should not be permitted unreasonableand inexcusable delay which harms the defen-dant’s ability to mount an effective defense.

When one is harmed by someone else’s miscon-duct or negligence, he usually seeks civil damages(i.e., money) as the remedy. General damages are forthe direct and unavoidable result of the defendant’sconduct. Special damages are not for the direct andinevitable result of the conduct—they are for actualharm which arises from the defendant’s conduct,but is not necessarily a predictable result.

Equitable remedies are all remedies other thandamages (i.e., money). Court orders, other than ajudgment for damages, are equitable remedies: in-junctions, writs of mandate, orders for specificperformance, and declaratory judgments, etc.

Section 2. The Rules of Evidenceand the Search for JusticeThe rules of evidence are intended to balance theright of each party to a fair trial against the need ofthe trier of fact to hear all relevant evidence. Thesetwin objectives can be difficult to achieve. The ad-mission of evidence is determined primarily by thetest of relevance. Relevant evidence tends to provea material fact (i.e., a fact which might influencethe outcome of the case). Whether a fact is mate-rial or not depends upon the law. If evidence tendsto prove a fact that legally cannot have any bearingon the case, the court will exclude that evidence.

In jury trials, especially, evidence is also evalu-ated for its prejudicial effect. Highly prejudicial ev-idence might distract a jury from all other relevantevidence and predispose the jury to make a deci-sion based upon the prejudicial evidence alone.Because that would deprive one party of an unbi-ased jury, even relevant evidence will be excludedif it is highly prejudicial. Here, again, the courtmust engage in a balancing act—the need for rele-

vant evidence against the need for an unbiasedjury. In making that judgment, the court considersthe probative value of the evidence. Evidence isprobative when it establishes a material fact thattends to prove or disprove an issue affecting theoutcome of the trial. Consequently, some prejudi-cial evidence is admitted because it is essential tothe determination by the trier of fact, whetherjudge or jury.

Relevant evidence may be excluded for otherreasons, including:

• privileged communications;

• the hearsay rule;

• public policy; and,

• due process rights.

Privileged communications have been discussedin an earlier chapter. Hearsay is testimony in courtabout a statement made out of court, and not un-der oath, by another person. It is considered unre-liable for a variety of reasons. However, there are anumber of exceptions which permit certain typesof hearsay to be admitted as evidence. Public pol-icy encourages out-of-court settlement, so pretrialoffers of compromise may not be introduced as ev-idence of liability, since to do so would discouragesettlement negotiations.

Section 3. Pretrial ProceduresA lawsuit begins when the plaintiff files a com-plaint with a court of proper jurisdiction. The com-plaint states various allegations which confirm thecourt’s personal and subject matter jurisdiction,and establish a valid cause of action. The com-plaint also includes the plaintiff’s “prayer” for aremedy (e.g., monetary damages).

The plaintiff must then deliver to the defen-dant a copy of the complaint and a summons to re-spond. This serving of the complaint and sum-mons is known as “service of process.” Thedefendant now has three choices:

• to ignore the lawsuit;

• to file an answer with the court; or,

• to file a demurrer or a motion to dismiss thelawsuit.

If the defendant ignores the lawsuit, the plaintiffwill be able to obtain a default judgment without atrial or further court hearing. Consequently, de-fendants almost always file either an answer or ademurrer.

An answer usually denies all allegations in thecomplaint, although it can admit some allegations

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(perhaps those conferring jurisdiction on thecourt, for example) and deny the rest. Often, an an-swer will allege an affirmative defense. This is anallegation by the defendant of some fact or legalprinciple that insulates the defendant against theallegations in the complaint. In a breach of con-tract action, for example, the defendant might al-lege that the plaintiff committed the first breachwhich then relieved the defendant of any furtherobligation under the contract.

A demurrer (or, in federal court, a motion todismiss) is another option for the defendant. A de-murrer states that there is no valid cause of actioneven if every single allegation in the complaint istrue. In effect, the demurrer asks “So what?” A de-murrer is not an admission that the allegations aretrue—it simply states that they do not establishgrounds for a lawsuit. In federal court, this sameresponse is made in the form of a motion to dis-miss for failure to state a valid cause of action.

If the court denies the demurrer, the defen-dant must then file an answer. If the court sustainsthe demurrer, the complaint is dismissed. How-ever, the courts usually dismiss “without preju-dice,” which means that the plaintiff has a secondchance to revise and refile his complaint. A dis-missal “with prejudice” would not permit a refilingof the complaint.

After the complaint and answer are on file, ei-ther side may move for judgment on the pleadings.A judgment on the pleadings is a finding by the courtthat no controversy of material fact exists, and thatone party is entitled to prevail as a matter of law.This decision is made based upon the pleadings onfile with the court (i.e., the complaint, answer, mo-tion for judgment, and the opposition to that mo-tion). If there is controversy over any material facts,the court will not grant the judgment. Although it isvery unusual, occasionally the defendant and theplaintiff agree to submit a case “on the pleadings”and let the court rule on the issues of law.

Discovery is a very important part of pretrialpreparation. Essentially, it is a process in whichthe plaintiff and defendant share information witheach other. Each party has a right to discover thefacts known to the opposing party (by using inter-rogatories), to obtain copies of documents (by re-quests for production of documents), take pretrialtestimony (by depositions), etc. The purpose ofdiscovery is to encourage out-of-court settlement,and to make the trial as efficient as possible. Theright of discovery applies to opposing parties,only. To obtain information or documents fromthird parties, the litigants must use subpoenas.

In recent years, many jurisdictions have modi-fied their court rules to accelerate the process of

litigation. Cases are no longer permitted to dragout for years, unless there is good cause. For thisreason, the courts often establish a “discovery cut-off date” after which a party must obtain court per-mission to make any discovery requests of theother party. In some jurisdictions, a status confer-ence is held toward the end of the discovery pe-riod to ensure that all parties are cooperating inthe discovery process, and to resolve any dis-putes. After completion of discovery, a pretrialconference may be held to schedule the trial anddeal with other procedural issues.

Some jurisdictions require a mandatory settle-ment conference with the judge, which must be at-tended by the principles themselves (i.e., theplaintiff and the defendant), not just their attor-neys. At this conference, the judge tries to mediate(or, perhaps to coerce) the parties into settlement.

Before a trial begins, the parties may submitpretrial motions to the court. Examples include:

• motions in limine, to exclude particularissues or evidence;

• motions to request judicial notice of facts;and,

• motions to strike undisclosed evidence.

Motions in limine are usually made on the basis ofrelevance, prejudicial effect, hearsay, or privilege.Motions are also made to exclude trade secrets, orto gain protective orders regarding their use by theopposing party. Motions to strike undisclosed evi-dence usually involve allegations that the oppos-ing party did not respond in good faith to discov-ery requests.

Each side often submits a pretrial brief on thelegal issues that are expected to arise during thetrial. The parties might also stipulate to certainfacts or legal conclusions in order to make the trialmore efficient. In some jurisdictions, all parties arerequired to join in such a stipulation or explain tothe court their failure to do so.

Section 4. Trial ProceduresWith discovery completed, trial briefs and stipula-tions filed, and pretrial motions disposed of, thecase is now ready for trial. If either side desires ajury, that request will have been filed with thecourt well before the date set for trial. Juries con-tinue to be popular with civil litigants, and jury se-lection can be a critical phase of the trial. Civil ju-ries vary between six and twelve persons,depending upon the jurisdiction.

The jury selection process is called voir dire. Itspurpose is to evaluate the competency of the

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prospective jurors and to uncover anything whichmight cause a juror to have a bias. The competencyissue is not addressed directly; rather the judge andthe attorneys do a very subjective evaluation of a ju-ror’s general intelligence, emotional stability, andability to understand English. If a deficiency in one ofthose areas is apparent, the court will very tactfullyexcuse that individual from service. The latter eval-uation occurs during the more obvious explorationof possible bias. The judge and the attorneys mayask questions to determine if a juror, or a juror’s fam-ily member, has been involved in a circumstancesimilar to that in the case to be tried.

Each party to the trial has an unlimited num-ber of challenges for cause. That means that if abias is apparent or seems probable, the court willexcuse a juror simply upon the motion of eitherparty. In addition, each party has a very limitednumber of peremptory challenges, which requireno justification or explanation. The peremptorychallenge accommodates the attorney’s intuitionthat a particular juror might be biased. But it alsoallows each party to arbitrarily exclude a few ju-rors who happen to belong to a particular category(e.g., those with a college education, those whohave been in the military service, or those who be-long to a particular profession).

After the jury has been sworn, the trial usuallybegins with opening statements by the attorneysfor each party. The plaintiff makes the first state-ment, followed by the defendant. These state-ments are simply “road maps” for the jury and/orjudge, to explain what the attorney believes the ev-idence will be, and what conclusion should bedrawn from that evidence.

Following opening statements, the plaintiffputs on its case in chief. The plaintiff goes first be-cause he must establish a prima facie case, or seethe case dismissed. Because of this, the plaintiffputs on his case without the benefit of knowingwhat the defendant will present. In contrast tothat, the defendant puts on his case only after hehas seen the plaintiff’s case in chief. Because of theadvantage given to the defendant by this se-quence, the plaintiff is permitted to put on a rebut-tal case following the defendant’s case. There is norebuttal case for the defendant.

When either party puts its case before thecourt, his attorney has the first opportunity toquestion each witness. Following that direct exam-ination of the witness, the opposing attorney con-ducts a cross-examination of that witness. Whenthe plaintiff has completed questioning all wit-nesses for his case in chief—all of whom have beencross-examined immediately following their direct

testimony—the plaintiff retires. Now, the defensepresents its case, with the witnesses giving directtestimony and then undergoing cross-examination.During the testimony of witnesses, the plaintiff and the defendant will introduce various exhibitsinto evidence (e.g., documents, photographs, ob-jects, etc.).

When the plaintiff has completed his case inchief, the defendant might ask the court to findthat the plaintiff did not establish a prima faciecase. This would mean that the plaintiff had notpresented evidence to support each required ele-ment of his cause of action. In a breach of contractcase, for example, the plaintiff must present evi-dence to show that the parties actually enteredinto a contract. If there were no contract, therecould be no breach. The appropriate defense mo-tion in that circumstance would be for dismissal ofthe case for failure to establish a prima facie case(sometimes known as a motion for non-suit). Ifthere is a jury, it might be a motion for directedverdict—meaning that, as a matter of law, the juryis permitted to return only a verdict for the defen-dant. (The exact nature of the motion varies amongdifferent jurisdictions.)

In practice, very few plaintiffs fail to presentevidence to establish a prima facie case, and veryfew cases are dismissed at the conclusion of theplaintiff’s case in chief. So, the next stage in thetrial will be the defendant’s case. When the defenserests, the plaintiff presents his rebuttal case. Theattorneys then make their closing statements. Sim-ilar to the opening statements, these are “roadmaps” which summarize the evidence and suggestthe conclusions the trier of fact should reach. Justas with the testimony and other evidence, theplaintiff gives his closing statement first, the de-fendant second, and then the plaintiff gets the lastword. Consequently, the plaintiff has the opportu-nity to be heard first—in opening statement, casein chief, and closing statement—and also last—inrebuttal evidence and rebuttal closing statement.The same advantage is held by prosecuting attor-neys in criminal cases.

Section 5. Verdicts andJudgmentsThe case is now ready to go to the jury (or judge, ifno jury) for deliberation. If there is a jury, the judgewill instruct the jury upon its duties, and upon thelaw to be applied to the case. The jury is told thatthe plaintiff has the burden of proof. The plaintiffneeds something from the court, a judgment. If theplaintiff fails to get that judgment, the defendant


needs nothing more from the court. The entire pur-pose of the defendant’s case has been to under-mine and refute the case of the plaintiff. The de-fendant has no obligation to prove anything—hecarries no burden of proof. So, the fundamental jobof the jury is to evaluate the plaintiff’s case, keep-ing in mind any evidence the defendant presentedto weaken that case.

In reaching its verdict, the jury must apply a le-gal standard of proof. We are all familiar with thestandard applied in criminal cases—proof beyond areasonable doubt. That standard never applies tocivil cases, however. The standard of proof for civilcases is usually a preponderance of the evidence.This is a “50%-plus-a-single-feather” standard. Any-thing over 50% is preponderant. Consequently, it isfar easier for the plaintiff to prevail in a civil suit thanin a criminal prosecution. In some jurisdictions, andfor some types of cases, a different standard isused—clear and convincing proof. This standard ishigher than a preponderance of the evidence. Clearand convincing proof permits some reasonabledoubt about the certainty, but it requires a body ofevidence that is convincing, not just persuasive.

Applying the court’s instructions on the lawand on the standard of proof to be applied, the jurydeliberates on the evidence and reaches a conclu-sion. The jury may believe or disbelieve any wit-ness, or any other form of evidence. It may givegreater weight to some evidence, which it findsmore credible, than to other evidence, whichseems doubtful. The conclusion it reaches, basedupon the evidence and the law, is its verdict. Inmost civil trials, the jury delivers a single, all-encompassing conclusion, known as a general ver-dict. In more complex cases, the court may in-struct the jury to answer a series of questionsabout the facts and then reach conclusions basedupon the court’s instructions on the law. This formof verdict is known as a special verdict.

After the jury returns its verdict, the losingparty may present a motion for the court to entera judgment notwithstanding the verdict (i.e., judg-ment NOV). Most motions for judgment NOV aredenied. If the court grants this motion, it is be-cause the jury disregarded the court’s instructionson the law, or because the jury reached a verdictwhich was wholly unsupported by the evidence of-fered. (This does not mean that the jury believedthe “wrong” witness, but that it found facts forwhich no evidence at all was presented.) A judg-ment NOV is also entered when a jury has been di-rected by the court to enter a verdict for the de-fendant (see earlier discussion, above), butinstead enters a verdict for the plaintiff.

When the court enters its judgment, the losingparty may move for a new trial. This motion, also, isusually denied. The remaining option is for the los-ing party to appeal the judgment to a higher court.In complicated cases, especially those with multipleparties and causes of action, it is common for nei-ther side to win on every issue, so each party mightappeal a portion of the court’s judgment.

The appellate court receives a complete recordof the case and copies of all exhibits. Although therecord on appeal reveals the evidence heard by thetrial court and court’s findings on questions of fact,questions of fact do not go on appeal. There are veryfew exceptions to this general rule. Instead, the ap-pellate court considers the procedures followed bythe trial court and the law applied to the case. In al-most every instance, cases are reversed on appealbecause the trial court made a serious proceduralerror or applied the incorrect legal principles. In re-viewing lower court decisions, the trial court’s ac-tions will be viewed in a light most favorable to thatcourt’s judgment. In other words, there is an initialpresumption that the trial court made the correctdecision. Also, trial judgments will not be reversedfor harmless error—the losing party must suffer atrue injustice before the decision will be reversed.When a decision is reversed, the case is usually re-manded to the trial court for further action consis-tent with the appellate court’s decision.

When a case is heard on appeal, there are nowitnesses, no testimony, no evidence. The attor-neys have submitted their legal arguments in writ-ing prior to the appellate court hearing. During thehearing, they will make oral arguments and respondto questions from the court. After the hearing, theappellate justices take the case under submissionand render their written decision at a later date.

Having won a judgment that has not been re-versed on appeal is often only the first step. Thejudgment establishes the respective legal rightsand obligations of the parties, but it does not au-tomatically change anything. The most commonproblem with enforcing judgments involves thepayment of damages or the surrender of property.If the losing party refuses to pay, the plaintiff mayhave to obtain a writ of execution (i.e., a court or-der to sell the defendant’s property) in order tocollect from the judgment debtor. The prevailingplaintiff can also ask the court to summon the judg-ment debtor to a judgment debtor examination,during which he is questioned under oath abouthis various assets. If the judgment debtor ownsreal property, the judgment creditor can record ajudgment lien against that property.

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Section 6. ParalegalResponsibilities in LitigationThe role of paralegals in civil litigation has grownin importance over the years. A decade or so ago,paralegals were involved primarily in preparingroutine documents for court filings, and in prepar-ing demands and responses in discovery. Today,litigation paralegals conduct sophisticated legalresearch, draft legal memoranda for submission tothe court, and prepare witnesses for their testi-mony. Increasingly, senior legal assistants appearin court, sitting at the attorney’s side during thetrial, not just to manage exhibits and locate docu-ments, but to assist in selecting jurors, evaluate ju-rors’ reactions to the attorney and witnesses, andparticipate in adapting the case strategy to the un-folding events during trial.

Paralegals also continue to be deeply involvedin the pretrial discovery process. Information isthe indispensable foundation of litigation. Newerlegal assistants will prepare, file, and arrange serv-ice for court documents. They will prepare and re-spond to discovery requests. Legal assistants co-ordinate with the court and the counsel for otherparties, with witnesses, with retained experts, andalso the client.

Often it is the legal assistant who manages pro-cedural cooperation between opposing counsel.Discovery deadlines are extended and other techni-calities waived in telephone calls between the legalassistants and/or legal secretaries of opposingcounsel. These procedural changes are a commonprofessional courtesy between attorneys. A legal as-sistant who requests and obtains such a proceduralmodification should confirm that agreement in writ-ing. Most attorneys authorize their legal secretariesand paralegals to make these arrangements on theirbehalf. Obviously, a legal assistant must know hissupervising attorney’s policy in that regard.

These agreements between opposing counselare vital because compliance with deadlines is ex-tremely important in litigation. As discussed ear-lier, statutes of limitations must be complied withand inexcusable delay avoided. But once a lawsuithas been filed, each party is subject to a continu-ing series of deadlines. There can be serious con-sequences for missing some of these deadlines.Law firms use a tickler system to ensure that legalassistants and attorneys are alerted to these ap-proaching deadlines.

Following the discovery phase of a lawsuit, le-gal assistants become involved in the preparationfor the trial itself. Exhibits must be prepared, re-ports from retained experts must be reviewed,deposition testimony must be summarized, legal

memoranda to be submitted to the court must becite checked, the law of evidence and jury instruc-tions must be researched, a trial notebook must beprepared, and witnesses must be kept informed oftheir anticipated schedule for testimony at trial.

Section 7. Alternative DisputeResolutionBecause litigation is so expensive and time-consuming, an increasing number of litigants arechoosing to resolve their legal issues through al-ternative dispute resolution (ADR). These non-judicial processes include conciliation, neutralevaluation, fact finding, mediation, and arbitration.It is the latter two processes which are growing sorapidly in importance. In some jurisdictions, liti-gants are required to go through some form of ADRbefore they may litigate their dispute in court. Thisrequirement is intended to relieve the courts ofsome of the burden imposed by an increasing num-ber of lawsuits, and to save litigants time andmoney. The advantages of mediation and arbitra-tion include the following:

• The parties have much greater control overthe process.

• The parties can select a neutral withexpertise in the subject matter of theirdispute.

• The proceedings are confidential, rather thana public record.

• There is greater likelihood of preserving apositive on-going relationship after thedispute has been decided.

In mediation, a neutral third party attempts tohelp the adversaries to find a mutually acceptablecompromise. Because the mediator keeps all com-munications confidential, the opposing parties canconfide their “bottom line” and other informationthey hesitate to share with their adversary. Whenmediation succeeds, the parties have agreed to aresolution of their dispute. Consequently, it is lesslikely that either feels totally victimized. When me-diation fails, the parties are still able to have theirdispute arbitrated or litigated—they have given uplittle more than the time and energy required bymediation.

Although faster and less expensive than litiga-tion, arbitration does not shield an adversary fromtotal defeat. An arbitrator is, in effect, a privatelyemployed judge (although she need not be an at-torney, let alone a judge). The process for choosingthe arbitrator is crucial—she should not be be-holden or partial to either party. In arbitration, wit-


nesses testify under oath, but the rules of evidenceare not strictly followed. Since there is no effort tofind a compromise, either party might lose thecase entirely, just as in court. Although many ob-servers consider it an oxymoron, some arbitrationawards are “advisory” rather than “binding.” Abinding award is later enforceable in a court of law,if need be. An “advisory” arbitration is not.

The federal and state governments have en-acted statutes favoring the arbitration of legal dis-putes. Thirty-five states have adopted the UniformArbitration Act. These statutes require the courtsto compel arbitration if it is mandatory under theterms of a contract. However, in recent years, thecourts have found that some compulsory arbitra-tion provisions are unconscionably one-sided—and, thus, non-enforceable—or that they illegallyrequire an employee to surrender statutory rights.

When the parties choose to arbitrate a dis-pute, they usually mutually agree upon the arbi-trator. That might be done by alternatively strikingnames from a list of arbitrators until only one nameremains. The rules of evidence are greatly relaxed,and the arbitrator gives more or less weight toevidence, depending upon its reliability. Thus,hearsay evidence might be more easily intro-duced, but it might also be disregarded totally bythe arbitrator. Paralegals assist in the preparationfor arbitration much as they do for a civil trial. Insome settings, and depending upon the jurisdic-tion, non-attorneys may serve as the advocate be-fore an arbitrator by examining witnesses and ar-guing the law.

REVIEW QUESTIONS

1. Litigation is the process of using the courts toresolve __________ about the legal rights andobligations of opposing parties.

2. Although there are various types of lawsuits,most are brought for one of the followingreasons:

• to assert a legal __________;

• to obtain a remedy for __________ ofcontract;

• to obtain a remedy for the harm caused byanother person’s wrongful __________ or__________;

• to terminate a legal __________.

3. The most fundamental question in a lawsuit iswhether the plaintiff has a factual and legalbasis to bring a claim against the defendant;this is known as the plaintiff’s __________ tobring the suit.

4. Every jurisdiction has a statute of __________which requires a plaintiff to initiate litigationwithin a prescribed period of time.

5. Generally, a cause of action accrues at thetime a person or his property is __________,and the statute begins to run on that date.

6. Even if the statute has not yet run, under the doctrine of __________, unnecessaryprocrastination might bar the plaintiff’s lawsuit.

7. Civil damages are a judgment for __________.

8. __________ damages are the direct andnecessary result of the defendant’smisconduct (e.g., the destruction of propertyor the loss of a limb).

9. __________ damages are those which resultfrom the defendant’s misconduct, but are notthe direct and necessary result (e.g., loss ofwages).

10. A __________ restraining order (TRO) is an“emergency” injunction used to maintain thestatus quo until the court can conduct a fullhearing.

11. Under the relevancy test, a judge will excludeevidence when the fact it tends to prove isnot __________ to the outcome of the case.

12. Evidence has __________ value when itestablishes a fact that tends to prove ordisprove an issue affecting the outcome of thecase.

13. So that settlement negotiations will beencouraged, offers of __________ made beforetrial may not be introduced as evidence.

14. Hearsay evidence is admissible under somespecific exceptions to the hearsay rule. Theseexceptions include:

• out-of-court admissions by a party that are __________ with her position ortestimony in court;

• __________ statements made in a momentof excitement; and,

• routine __________ records.

15. Law firms use an __________ service to filedocuments with the court, to servedocuments upon other parties, and toprovide copying and messenger services.

16. After being served with the complaint andsummons, the defendant has three choices:

• to __________ the lawsuit, and accept adefault judgment;

• to file an __________ with the court; or,

• to file a __________ or a motion to__________ the lawsuit.

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17. If a court sustains a __________ withoutprejudice, the plaintiff can revise and refilehis complaint. But if it is sustained withprejudice, the lawsuit is permanently barredfrom being refiled.

18. In all federal trial courts, and some statecourts, a motion to dismiss is used in lieu ofthe demurrer. The motion to dismiss might bebased upon:

• failure to state a valid __________ of action;

• improper __________ of the complaint andsummons;

• expiration of the __________ of limitations;or,

• lack of personal __________ over thedefendant.

19. If the defendant has filed an answer to thecomplaint, either party can then move for ajudgment __________ , which finds that nocontroversy of material fact exists, and thatone party is entitled to prevail as a matter of law.

20. Under some circumstances, it is a __________offense to destroy potential evidence in civillitigation.

21. The person whose testimony is taken in adeposition is known as the __________.

22. During pretrial discovery, a party might seekthe court’s __________ order to preventproprietary trade secrets from being used orrevealed improperly.

23. The discovery __________ date is thedeadline, set by statute, court rule, or courtorder, by which all pretrial discovery must becompleted.

24. A pretrial motion in __________ proposes toexclude from the trial certain evidence orissues.

25. Courts are permitted to take judicial__________ —without the necessity thatevidence be introduced—of facts which areuniversally recognized and areincontrovertible by any plausible evidence.

26. A pretrial __________ is a joint submission byall parties, and informs the court about:

• facts agreed upon, and facts contested;

• matters of law agreed upon, and matterscontested; and,

• witnesses to be called and exhibits to beintroduced.

27. During jury selection, each party is permittedto challenge the seating of potential jurors. A

challenge for __________ must be based uponthe possibility of bias or apparentincompetence to serve. In addition, each partyhas a limited number of __________ challenges,which require no justification or explanation.

28. When the court begins to receive evidence,the __________ presents her case first.

29. During the plaintiff’s case in chief, it mustestablish a __________ case that is sufficientto prevail unless contradicted by morepersuasive evidence offered by the defendant.

30. Before an exhibit will be admitted toevidence, a party must lay __________through the testimony of a witness who haspersonal knowledge of that exhibit.

31. Cross-examination of a witness is generallylimited to the scope of the __________examination.

32. After the defendant has rested, the plaintiff isallowed to present __________ evidence.

33. To sustain a verdict, evidence must meet alegal __________ of proof.

34. In civil cases, the verdict must be based upona __________ of the evidence (in mostjurisdictions), or upon __________ and__________ proof (in other jurisdictions).

35. The latter standard requires a reasonable__________ that the fact to be proved is true,but does allow some doubt about that truth.

36. A jury returns a __________ and the courtenters a __________.

37. In unusual circumstances, the court may setaside the jury verdict and enter a judgment__________ (judgment NOV).

38. When an appellate court __________ a case, itreturns it to the lower court for further actionin keeping with the appellate decision.

39. A trial court judgment will not be reversed for__________ error, since the interests of justicedo not require it.

40. When a case is heard on appeal, there are no__________, no __________, and no__________.

41. If a defendant fails to pay the court’sjudgment for damages, the plaintiff can applyto the court for a writ of __________authorizing the sheriff or marshall to seizethe defendant’s property and sell it atauction.

42. If the judgment debtor owns real property,the plaintiff can record a judgment __________against that property.


43. If the judgment debtor files for bankruptcy, anautomatic __________ takes effect, barringany action to enforce a debt or collect on acourt judgment.

44. Law offices use a __________ system to alertattorneys and paralegals to impendingdeadlines.

45. A non-party’s business records can beobtained by serving a subpoena duces__________ on the __________ of records forthat party.

46. Before an attorney submits written legalarguments to the court (a “memorandum ofpoints and authorities”), the paralegal oftenchecks the accuracy of each citation to courtcases, statutes, and other legal authorities.This process is known as __________-checking.

47. Alternative dispute resolution (ADR) includesa variety of non-judicial processes. The morecommon are negotiation, __________, and__________.

48. __________ is the resolution of disputes withthe assistance of a neutral third person whohelps the disputing parties to find a mutualcompromise of their differences.

49. In __________, a neutral person receivesevidence, hears argument, and renders adecision.

KEY TERMS

adversary system

Your “best effort” definition:

Your revised definition:

allegation



alternative dispute resolution



answer



binding arbitration



cause of action



complaint



cross-examination



declaration



default judgment



demurrer



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deposition



direct examination



discovery



equitable remedy



ex parte hearing



good cause



hearsay evidence



injunction



interrogatories



irreparable harm



judgment NOV



jury instructions



litigation



material fact



mediation



prejudicial effect




prima facie case



relevance



request for admissions



subpoena



summons



trial by court



verdict



voir dire



WORKING ON-LINEGo to the Web site for the Association of TrialLawyers of America (ATLA):

http://www.atlanet.org

On the association’s home page, follow the link to“Archived News Stories.” This page offers free pub-lic access to a wide range of articles related to liti-gation from the publications of ATLA and othersources. Find an article on some aspect of alterna-tive dispute resolution (ADR) or damage awardsby trial juries. Review the article and evaluate itsobjectivity and/or bias on the issues covered.

ETHICAL CHALLENGEAs an entry-level litigation paralegal, you havebeen working on a large, complex products liabil-ity case. Much of your time has been occupied byreviewing the client’s files for a response to theplaintiff’s Demand for Production of Documents.Occasionally, you communicate by telephone andfacsimile with George, a legal assistant in theclient’s office, about additional documents neededfor review. George sometimes responds by faxingto your office a list of available documents whichappear to meet the plaintiff’s demand.

One morning when you are expecting a facsim-ile from George, you find instead a facsimile fromthe office of the opposing counsel addressed to theplaintiff. Somehow, it was misdirected to your firm’sfacsimile number by error. The cover sheet revealsthat it is a draft memorandum of points and author-ities for a motion to compel your firm’s client to dis-close proprietary trade secrets. The cover sheet isaddressed by name to the plaintiff, but clearly wastransmitted to the wrong facsimile machine. Yourealize that it is a privileged attorney-client commu-nication, and the cover sheet includes a lengthyparagraph prohibiting unintended recipients fromreading the facsimile communication.

You are unsure about the legal and ethical im-plications of reading the facsimile. You are in-trigued by the possibility of reading it, possibly onthe sly, but you don’t know how the attorneywould view that if it became known.

ETHICAL ANALYSISMany other legal assistants have found themselvesin this situation, but the ethical implications for theunintended recipient of a communication are not of-ten discussed. This situation presents the tempta-tion of forbidden fruit. It’s one thing, perhaps, to

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glance at Lady Godiva as she rides unclothedthrough the village, but it’s another thing entirelyto look through her window if she forgets to drawthe curtain. Does someone’s carelessness legit-imize uninvited eavesdropping?

A key statement in the Ethical Challenge con-cerns your uncertainty about the legal and ethicalimplications of reading the facsimile. So, commonsense alone suggests that you should seek thecounsel of wiser persons. It would be foolhardy totake unknown ethical and legal risks simply to sat-isfy our curiosity. For starters, it’s entirely possiblethat the law firm might fire you if they learned thatyou had intentionally eavesdropped on a privilegedcommunication. Depending upon the law of yourjurisdiction, you and the law firm might incur civilliability if the opposing party or their client some-how learned of your action. Clearly, your first stepshould be to speak with your supervising attorney.

From the discussion in Chapter 3, we knowthat an attorney (or paralegal) can create a waiverof the attorney-client privilege by disclosing a priv-ileged communication, without client authoriza-tion, to third parties. Does that relieve you andyour law firm from ethical or legal liability for read-ing this communication intended for someoneelse’s client?

Suppose the identical communication were toarrive via mail in an envelope marked “CONFIDEN-TIAL” and addressed to the opposing counsel’sclient, but was inadvertently delivered by thePostal Service to your office. Would you open thatenvelope? Is lifting the cover sheet of a facsimileand reading the subsequent pages any different, inan ethical sense, from opening a sealed envelopeaddressed to someone else?

When debating the ethics of using e-mail andfacsimile, many in the legal profession have arguedthat the U.S. Mail is no more secure than theseelectronic methods of communication. In otherwords, they argue that if it’s acceptable to riskunauthorized disclosure when we mail documentsto clients, it is no worse when we communicatewith them by e-mail or facsimile. But, if we equatethese methods for ethical purposes, do we notthen have the same ethical duty not to “open”other people’s mail, whether it arrives electroni-cally or in the old-fashioned way?

READING CASE LAWA case which drew nationwide attention wasGrimshaw v. Ford Motor Company, 119 Cal.App.3d757, 174 Cal.Rptr. 348 (1981). The Grimshaw casebecame famous for a variety of reasons. It pitted in-

dividual plaintiffs against a corporate giant, withall of its economic and legal resources. It arosefrom a horrible accident in which a Ford Pinto ex-ploded in flames after a rear-end collision. It re-vealed a corporate decision to leave the Pinto’s gastank vulnerable to rupture, when Ford engineersknew that its vulnerability could be significantlyreduced at a modest cost per vehicle. It resulted inexceptionally large punitive damages awarded bythe jury against Ford (later reduced by the court).And, it demonstrated the extraordinary effect thata single “smoking gun” document could have onthe outcome of a products liability case.

One of the key disputes before California’sCourt of Appeal was the trial testimony of a formerFord engineering executive, Mr. Harley Copp. Fordcontended that Copp should not have been permit-ted to testify because the plaintiffs failed to dis-close his identity before trial, and as a result Ford’sattorneys were unable to depose him. They also ar-gued that Copp should not have been allowed totestify about the reason for his termination by Ford,and that he should not have been permitted to tes-tify about the contents of reports, studies, and testson which he relied in forming his opinions.

Read the appellate court’s opinion and evalu-ate its holdings on the propriety of Copp’s testi-mony during trial. Does the court’s holding de-prive a defendant of reasonable discovery so thatit might defend itself? Should the trial court haveadmitted Exhibit No. 125, and permitted Copp’stestimony regarding it?

ANSWERS TO REVIEWQUESTIONS

1. Litigation is the process of using the courts toresolve disputes about the legal rights andobligations of opposing parties.

2. Although there are various types of lawsuits,most are brought for one of the followingreasons:

• to assert a legal right;

• to obtain a remedy for breach of contract;

• to obtain a remedy for the harm caused byanother person’s wrongful act or omission;or,

• to terminate a legal relationship.

3. The most fundamental question in a lawsuit iswhether the plaintiff has a factual and legalbasis to bring a claim against the defendant;this is known as the plaintiff’s standing tobring the suit.


4. Every jurisdiction has a statute of limitationswhich requires a plaintiff to initiate litigationwithin a prescribed period of time.

5. Generally, a cause of action accrues at thetime a person or his property is harmed, andthe statute begins to run on that date.

6. Even if the statute has not yet run, under thedoctrine of laches, unnecessaryprocrastination might bar the plaintiff’slawsuit.

7. Civil damages are a judgment for monetarycompensation.

8. General damages are the direct and necessaryresult of the defendant’s misconduct (e.g., thedestruction of property or the loss of a limb).

9. Special damages are those which result fromthe defendant’s misconduct, but are not thedirect and necessary result (e.g., loss ofwages).

10. A temporary restraining order (TRO) is an“emergency” injunction used to maintain thestatus quo until the court can conduct a fullhearing.

11. Under the relevancy test, a judge will excludeevidence when the fact it tends to prove isnot material to the outcome of the case.

12. Evidence has probative value when itestablishes a fact that tends to prove ordisprove an issue affecting the outcome of thecase.

13. So that settlement negotiations will beencouraged, offers of compromise madebefore trial may not be introduced asevidence.

14. Hearsay evidence is admissible under somespecific exceptions to the hearsay rule. Theseexceptions include:

• out-of-court admissions by a party that areinconsistent with her position or testimonyin court;

• spontaneous statements made in a momentof excitement; and,

• routine business records.

15. Law firms use an attorney service to filedocuments with the court, to servedocuments upon other parties, and toprovide copying and messenger services.

16. After being served with the complaint andsummons, the defendant has three choices:

• to ignore the lawsuit, and accept a defaultjudgment;

• to file an answer with the court; or,

• to file a demurrer or a motion to dismiss thelawsuit.

17. If a court sustains a demurrer withoutprejudice, the plaintiff can revise and refilehis complaint. But if it is sustained withprejudice, the lawsuit is permanently barredfrom being refiled.

18. In all federal trial courts, and some statecourts, a motion to dismiss is used in lieu ofthe demurrer. The motion to dismiss might bebased upon:

• failure to state a valid cause of action;

• improper service of the complaint andsummons;

• expiration of the statute of limitations; or,

• lack of personal jurisdiction over thedefendant.

19. If the defendant has filed an answer to thecomplaint, either party can then move for ajudgment on the pleadings which finds that nocontroversy of material fact exists, and thatone party is entitled to prevail as a matter oflaw.

20. Under some circumstances, it is a criminaloffense to destroy potential evidence in civillitigation.

21. The person whose testimony is taken in adeposition is known as the deponent.

22. During pretrial discovery, a party might seekthe court’s protective order to preventproprietary trade secrets from being used orrevealed improperly.

23. The discovery cut-off date is the deadline, setby statute, court rule, or court order, bywhich all pretrial discovery must becompleted.

24. A pretrial motion in limine proposes to excludefrom the trial certain evidence or issues.

25. Courts are permitted to take judicial notice—without the necessity that evidence beintroduced—of facts which are universallyrecognized and are incontrovertible by anyplausible evidence.

26. A pretrial stipulation is a joint submission byall parties, and informs the court about:

• facts agreed upon, and facts contested;

• matters of law agreed upon, and matterscontested; and,

• witnesses to be called and exhibits to beintroduced.

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27. During jury selection, each party is permittedto challenge the seating of potential jurors. Achallenge for cause must be based upon thepossibility of bias or apparent incompetenceto serve. In addition, each party has a limitednumber of peremptory challenges, whichrequire no justification or explanation.

28. When the court begins to receive evidence,the plaintiff presents her case first.

29. During the plaintiff’s case in chief, it mustestablish a prima facie case that is sufficientto prevail unless contradicted by morepersuasive evidence offered by the defendant.

30. Before an exhibit will be admitted toevidence, a party must lay foundation throughthe testimony of a witness who has personalknowledge of that exhibit.

31. Cross-examination of a witness is generallylimited to the scope of the direct examination.

32. After the defendant has rested, the plaintiff isallowed to present rebuttal evidence.

33. To sustain a verdict, evidence must meet alegal standard of proof.

34. In civil cases, the verdict must be based upona preponderance of the evidence (in mostjurisdictions), or upon clear and convincingproof (in other jurisdictions).

35. The latter standard requires a reasonablecertainty that the fact to be proved is true, butdoes allow some doubt about that truth.

36. A jury returns a verdict and the court enters ajudgment.

37. In unusual circumstances, the court may setaside the jury verdict and enter a judgmentnotwithstanding verdict (judgment NOV).

38. When an appellate court remands a case, itreturns it to the lower court for further actionin keeping with the appellate decision.

39. A trial court judgment will not be reversed forharmless error, since the interests of justicedo not require it.

40. When a case is heard on appeal, there are nowitnesses, no testimony, and no evidence.

41. If a defendant fails to pay the court’sjudgment for damages, the plaintiff can applyto the court for a writ of execution authorizingthe sheriff or marshall to seize thedefendant’s property and sell it at auction.

42. If the judgment debtor owns real property,the plaintiff can record a judgment lienagainst that property.

43. If the judgment debtor files for bankruptcy, anautomatic stay takes effect, barring any actionto enforce a debt or collect on a courtjudgment.

44. Law offices use a tickler system to alertattorneys and paralegals to impendingdeadlines.

45. A non-party’s business records can beobtained by serving a subpoena duces tecumon the custodian of records for that party.

46. Before an attorney submits written legalarguments to the court (a “memorandum ofpoints and authorities”), the paralegal oftenchecks the accuracy of each citation to courtcases, statutes, and other legal authorities.This process is known as cite-checking.

47. Alternative dispute resolution (ADR) includesa variety of non-judicial processes. The morecommon are negotiation, mediation, andarbitration.

48. Mediation is the resolution of disputes withthe assistance of a neutral third person whohelps the disputing parties to find a mutualcompromise of their differences.

49. In arbitration, a neutral person receivesevidence, hears argument, and renders adecision.


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