Chapter One

Introduction to Litigation

The Litigation Process

Litigation: is the resolution of disputes through the court system.

Civil Litigation: is the resolution of disputes between private parties

through the court system.

Criminal litigation is not between private parties but rather when a branch of government prosecutes an action against individuals who have committed crimes against society. If the crime results in damage to a person or property, a civil action may be brought separate of the criminal one.

Administrative Litigation: the process by which administrative agencies resolve disputes that concern their administrative rules and regulations.

Example: If an employee is injured on the job and a worker’s compensation claim is filed, the worker’s compensation agency will determine the claim, hear appeals or disputes relative to the claim. This would be the administrative portion that in general must first be exhausted before proceeding with a court action.

Civil litigation allows parties to settle their disputes in an orderly non-violent manner. Once a dispute is submitted to the court, all parties must follow the court’s procedural rules.

Each state has its own rules of procedure that must be adhered to by the party

filing an action in a state court.

Actions filed in federal courts are governed by the Federal Rules of Civil Procedure.

Sources of Law

The three sources of law that you need to consult for a litigation matter are statutes, court cases, and constitutions.

Statutes: statutes (codes) are laws enacted by state or federal legislatures that govern substantive and legal rights and principles, as well as procedural rules.

• Laws enacted by Congress are found in the United States Code under various titles such as agriculture, banking, copyrights, etc.
• At the state level (California) the primary rules and statutes will be in Code of Civil Procedure (CCP), the Civil Code (CC), and the California Rules of Court.

Courts also have local rules that apply to a court within a certain county that also must be followed. These local rules may govern things such as the type of paper that must be used for complaints to the date a motion may be heard.

The other rules hat must be taken into consideration are ordinances (laws that are unique to an individual municipality, city or town).

Court Cases: these are decisions of the court interpreting the law. Once a decision has been rendered, the court will generally write an opinion. Certain opinions are published in bound volumes and are used by other litigants to determine how the law may be interpreted.

Prior to published opinions, early American colonists used a body of law from England referred to as common law. Common law is the body of law developed in England from custom and usage. It is not inconsistent with the constitutions or laws of the United States or individual states, and is generally still applicable.

Constitutions: the fundamental principles of law by which a government is created and administered. The federal Constitution is the highest law of the land. In addition to the United States Constitution, every state has its own constitution.

· No rule of law enacted by a state may violate that state’s constitution.

· No state constitution, state, or federal law may violate the federal Constitution.

The Court System

1- The aggrieved party (plaintiff) files a complaint in the appropriate court against the defendant. The complaint must state the basis of the claim against the defendant and the plaintiff must also request specific relief from the court. This filing is always done in a trial court.

2- The complaint is served upon the defendant along with a summons commanding the defendant to appear before the court.

· Complaint – document filed by an aggrieved party to commence litigation

· Summons – notice accompanying the complaint that commands the defendant to appear and defend against the action within a certain period of time.

Under the California court system, there are two courts.

Superior: court of general jurisdiction. It can hear all types of cases and matters seeking judgments greater than $25,000.

Municipal: this court that can only hear cases that are for a money judgment in the amount of $25,000 or less. These courts cannot hear matters relative to divorce, probate, or title to real property. To review the types of cases that can be heard in municipal court, refer to CCP § 86.

The municipal court also has a small claims court that hears matters involving less than $5,000.

The Federal Court System also has trial courts.

· Called United States District Court

· 90 districts in the United States

· Each state has at least one district court (may have more depending on population)

If a party loses in the trial court, they have an automatic right to appeal to the next highest court.

· Municipal court decisions go to the appellate division of the Superior Court.

· Appeals from Superior Courts go to the Court of Appeals for the appropriate district where the lower court sits.

Appeals are limited to a review of the record of the court below. The court will not listen to any witnesses or take new evidence. The party that is appealing the decision of the trial court must demonstrate that there was an error in the court below that affected the outcome. The appellate court will determine whether the law was incorrectly applied on the facts, or if the decision reached was not supported by the facts.

Even though new evidence is not submitted, the following will happen:

· All parties will be able to submit a written brief on the issues

· The court will hear oral arguments (attorney will answer any questions the judges may have and explain their position fully).

The court will render one of four decisions:

· Affirm - court rules the same way as the trial court

· Affirm with modification - court will rule the same way, but modify some element of the decision

· Reverse – court disagrees with the trial court

· Reverse and remand – court is not certain it disagrees based on the record before it. The court gives an opinion stating how it would rule assuming certain facts are true. It is reversed and remanded back to the trial court for a decision in accordance with the opinion given.

If a party loses in the appellate court, they may petition the Supreme Court for review. This is the highest court in the California court system. If the case involves a question of federal or constitutional law, the losing party may petition the United States Supreme Court for review.

Appeal to the California Supreme Court is not automatic, but discretionary with the Court. If review is granted, the court will affirm, affirm with modification, reverse, or reverse and remand the decision. If review is denied, the decision of the appellate court will be final.

Overview of Litigation Cases

Litigation consists of four basic steps:

· Information gathering

· Pleading

· Discovery and motions

· Trial and post-trial proceedings

Information gathering

Prior to filing a lawsuit, gathering information and obtaining facts to support your client’s case will be necessary.

Pleading:

The complaint is filed, and then the complaint along with the summons is served on the defendant.

The defendant must file a response or he/she will be in default and a judgment may be entered against him/her.

If defendant does respond, there are several choices available.

1- Motion: is a request to the court for an order or ruling. This may be requested if the defendant feels there’s a defect in the complaint such as a procedural rule or insufficient facts alleged against them.

2- Answer: response to the specific allegations in the complaint and states any defenses they may have.

Discovery and motion:

Parties conduct formal factual investigation through written responses and oral testimony received from the other side. Discovery can also be obtained from other parties who may be witnesses or have information that is helpful to the case.

At this time, there may be pre-trial motions made to:

Enter a judgment without trial if there are no disputes of the facts or

Request discovery from the other side if they fail to voluntarily provide information.

Trial and post-trial proceedings:

During and after the trial, there are a number of different motions that may be made. These may include requests for judgments if the other side fails to prove their case, a different judgment if the jury verdict is not consistent with the evidence, etc.

Remedies

Remedies may be divided into two categories: legal and equitable.

Legal remedies:

The most common legal remedy is money damages (compensation requested by the plaintiff from the defendant).

Compensatory damages: damages that compensate the injured party, including damages that directly flow from the injury or breach. Examples of the two types are:

General – compensation for pain and suffering

Specific – payment for medical expenses

Punitive damages: are meant to punish the wrongdoer for their conduct. These are also called exemplary damages and may be awarded in addition to compensatory damages.

Equitable remedy: relief requested from the defendant that is usually designed to prevent some future harm. The two most commonly used in civil litigation are:

Injunction: to stop a certain conduct or action (i.e., building a house that will block your view)

Declaratory: a controversy arises over the rights and obligations of the parties and neither party has lived up to the obligations.

The Paralegal’s role

Paralegals can and do handle many tasks that were previously performed by the attorney. They help to free up the attorney’s time and reduce litigation expenses to the client.

Paralegals may appear in court, represent witnesses at deposition, give legal advice under the supervision of an attorney. The paralegal may play a significant role in analyzing, planning and execution of the lawsuit.

The following is a sample of some of the tasks a paralegal may be asked to undertake.

Preparing for litigation

· Interview the client

· Gather background facts

· Locate and interview witnesses

· Obtain various types of records (tax, medical, educational, etc.)

· Research claims against other parties

· Draft demand letters

· Obtain and analyze documents from the client

Conducting the litigation

· Draft pleadings

· Prepare summons and pre-trial motions

· Prepare and respond to discovery requests

· Arrange for the taking of depositions and preparing the witness

· Prepare deposition summaries and take notes on deposition testimony

· Calendar due dates for filing of briefs, motions, pre-trial orders, etc.

· Prepare discovery plan

Trial preparation

· Prepare trial notebooks

· Organize exhibits and prepare demonstrative exhibits

· Prepare witness files

· Subpoena witnesses and coordinate scheduling of trial witnesses

· Draft trial brief

· Take notes at trial

· Assist attorney with exhibits at trial

Post trial work

· Assist with any post-trial motions

· Prepare record for appeal (if needed)

· Enforce judgment

Settlement

· Prepare settlement agreement

· Prepare releases

· Assist in closing file and obtaining necessary dismissals

Ethical Considerations

The conduct of lawyers is governed by the rules of professional conduct enacted in their state.

In 2000, the California legislature enacted new rules governing the regulation of the paralegal profession (see new rules in Business and Professions Code § 6450 et. seq.)

Some of the new rules for a paralegal are:

• May not represent a client in court or provide legal advice.
• May represent a client before state or federal administrative agencies, if permitted by statute, court rule, or administrative rule or regulation.
• Has a duty to maintain the confidentiality of client information. This information is considered privileged and cannot be disclosed to third parties.
• Must keep in mind to avoid conflicts of interest (when two or more parties with adverse interests are represented by the same counsel) and communicating with adverse parties.
• As no attorney should represent two or more parties who have adverse interests, if a paralegal realizes that a conflict has developed or may develop, they have a duty to notify the attorney.
• Paralegals must avoid communicating directly with an adverse party who is represented by counsel.
• Paralegals are not authorized to practice law and must never give anyone the impression that they are an attorney.

******Pursuant to Business and Professions Code § 6454, the terms “Legal Assistant” and “Paralegal” are synonymous.