3: Litigation
3.1 Introduction
LEARNING OBJECTIVES
- Identify the parties involved in litigation.
- Explore the responsibilities of attorneys.
- Understand the roles and types of juries.
- Explore the standing requirement.
- Follow a trial from opening statements to closing arguments.
Litigation provides an opportunity for each side in a dispute to tell their story to an impartial jury or judge to decide who wins. Business professionals have a responsibility to their company and stakeholders to avoid legal liability. Acting ethically helps achieve this goal. Agreeing to mediation or arbitration may help businesses avoid court. However, litigation may be the only dispute-resolution mechanism available or the one that is best for the situation.
3.2 The Parties, Attorneys, and Jury
The Parties
The litigation system relies on parties to bring forth and defend their respective claims. The party that begins a civil lawsuit is called the plaintiff . The plaintiff sues the defendant to recover damages for, or to stop, a legal wrong. In a criminal trial, the party that initiates litigation is the prosecution, representing the people within a state or federal government. In a criminal trial the accused wrongdoer is also called the defendant.
Cases may involve multiple plaintiffs and multiple defendants. Civil procedure encourages parties to bring their complaints against each other at once. All parties, and every possible claim (each claim is a separate violation of law) arising out of a single incident or series of related incidents, should be identified and raised in a lawsuit.
Except in some small-claims courts, parties may hire attorneys to represent them. Individuals who represent themselves are called pro se litigants . The complexities of litigation require knowledge and objectivity to succeed. Courts hold pro se litigants to the same standards as they do attorneys. Therefore, a pro se litigant is expected to understand and follow all the rules of the court and applicable laws.
Attorneys
In the United States, law school is a graduate-level program that usually takes three years to complete. Law school graduates earn a Juris Doctorate degree, or JD. Graduates then take the bar exam in the state where they wish to practice. If they pass the exam and background check, they can apply to be licensed in that state. Because the practice of law in the United States varies widely by jurisdiction, attorneys are only permitted to practice in jurisdictions where they are licensed.
Attorneys are bound by a professional code of ethics that is overseen by the supreme court of the state where they are licensed. One of the most important rules of professional responsibility is the obligation to keep a client’s secrets. The communications between a client and his or her attorney are absolutely confidential under the attorney-client privilege doctrine. The privilege belongs to the client, and the attorney is not permitted to reveal any of these communications without the client’s consent. A narrow exception exists for clients who tell their attorneys they intend to harm others or themselves. Attorneys must avoid violating the privilege because it exists for the client’s benefit. Someone who cannot communicate with his or her attorney freely is unable to help the attorney prepare the best possible case.
In spite of an attorney’s professional obligations to his or her client, it’s important to remember that ultimately an attorney’s first duty is to the administration of justice. The requirements for attorneys to be civil, honest, and fair are written to ensure that attorneys represent the very best aspects of the judicial system. For example, a client admits to his attorney that he is guilty of a crime. The client then wants to testify under oath that he is innocent. Although an attorney cannot reveal what her client has told her, the attorney is prohibited from knowingly suborning perjury. The attorney must either convince the client to not testify or withdraw from the case.
An attorney owes her client zealous advocacy, but her zeal must be constrained within the bounds placed on her as an officer of the Court and under the Court’s rules. Attorneys cannot assert legal claims or arguments that are not well-founded under existing law or through the modification or expansion of law. Attorneys are also prohibited from using the courts for a purpose unrelated to the resolution of a legitimate legal cause of action.
The Jury
In the US legal system, the jury has a very special role of citizen participation in the administration of justice. As the trier of fact, the jury has the duty of determining the truth in any given situation: who said and did what, why, and when. The litigation system is a process in which each side gets to present its case to a group of unbiased citizens, and then ask them to decide who wins the case.
There are two types of juries. A grand jury is a group of citizens convened by the prosecution in serious criminal cases to determine (1) whether probable cause exists to believe that a crime has occurred, and (2) whether it’s more likely than not that the defendant committed the crime. If the grand jury decides probable cause exists, then the government may bring criminal charges against the defendant. The grand jury prevents prosecutors from abusing their powers of arrest and indictment. The grand jury requirement exists at the federal level and in most states. A grand jury typically meets for an extended period of time and hears several different cases.
The grand jury does not determine guilt or innocence. A petit jury does that. This jury is impaneled for a specific trial. During the trial, members of the jury listen to the evidence presented and then deliberate as a group on the facts of the case. They then apply the law, as instructed by the judge, to the facts. There are typically twelve members in a petit jury in criminal trials and from six to twelve members in civil trials. In a criminal trial, a jury must arrive at a unanimous verdict to convict a defendant of the crimes charged.
The jury system is incredibly important because ordinary citizens adjudicate all sorts of disputes. There are problems with administering this system, however.
Both grand and petit juries are drawn from citizen voter and driver license rolls. In high-profile cases, it may be difficult to find citizens who have not heard about the case or who can be impartial. Another problem arises from the burdens placed on jurors’ personal lives through their service. While most states have laws that prevent an employer from firing a worker or taking any negative action against workers on jury duty, there is no legal requirement that an employer continue to pay a worker on jury duty. Some citizens, such as those who are self-employed, risk losing personal income by serving on juries.
Another potential problem arises in the composition of the jury. To provide a fair jury, courts attempt to draw from a cross-section of society to reflect the diversity of the surrounding community. Local court rules typically allow judges to excuse potential jurors for hardship or extreme inconvenience. The only professions that are automatically exempt are active-duty military members, police officers, firefighters, and public officers. In spite of these administrative problems, the jury system remains a cornerstone of the US legal system.
3.3 Standing
Standing is a constitutional requirement. Article III of the US Constitution grants the judiciary the power to hear “cases” and “controversies.” This means actual cases and controversies, not merely hypothetical ones. The standing requirement means that courts are unable to give advisory opinions. Standing is a doctrine that limits judicial overreach by limiting the types of cases that are litigated in court.
To demonstrate standing , a party has to prove that it has an actual case to proceed. This is a procedural matter, and it requires the case to be brought at the right time. If a case is brought too early, it is not yet ripe. If it’s brought too late, then the case is moot.
The case also has to be brought by the right person. To show standing, a plaintiff has to demonstrate that he or she has an actual stake in the litigation, or something of value that would be lost if he or she loses the case. It’s important to note that standing is not related to the merits of the case. It only means that a party may proceed with litigation.
3.4 Subject Matter and Personal Jurisdiction
In order to hear a case, courts must have subject matter jurisdiction over the type of dispute and personal jurisdiction over the parties. As discussed in Chapter 2, subject matter jurisdiction is the legal authority to hear and decide a case or controversy. The court must dismiss a case if it lacks either form of jurisdiction.
Personal jurisdiction is the power of the court to compel the parties to appear in court. Personal jurisdiction requires litigants to have some form of minimum contacts with the state where the case is filed. Personal jurisdiction seeks to avoid inconvenient litigation, even if the case has merit.
A court obtains personal jurisdiction over the plaintiff when the plaintiff files a lawsuit. The court obtains personal jurisdiction over a defendant when he or she is served with process or waives service.
Obtaining personal jurisdiction over the defendant requires some connection between the defendant and the state where the court is located. Businesses that incorporate, have a physical location, or do business in a state create personal jurisdiction through their actions within the state. Owning property in a state also creates personal jurisdiction.
Personal jurisdiction, like standing, is a constitutional requirement. Most states have long-arm statutes that set forth the procedure by which out-of-state defendants can be required to appear before a court. The statutes provide for how service of process occurs. Service of process is the process by which a defendant is notified that it is being sued. Service of process typically requires a copy of the notice to appear before a court to be personally delivered to the defendant or the defendant’s agent. In the case of businesses, service of process is usually delivering a copy of the notice to appear to their registered agent. Service can be more challenging with individuals.
| Basis of Personal Jurisdiction | Description |
| Consent |
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| Residence |
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| Service of Process |
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| Long-arm Statute |
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3.5 Venue
Venue is the proper geographic location of the court to hear a case because the place has some connection with the events that give rise to the lawsuit. While multiple courts may have subject matter and personal jurisdiction over a dispute, only a few may be the proper venue. For example, by doing business in Colorado a company is subject to the jurisdiction of Colorado courts. However, the court in the county where the plaintiff was injured or where the business maintains an office would be the proper court to hear the dispute.
3.6 Pretrial Procedures
Figure 3.1 Litigation Flowchart
Pleadings
In civil cases, litigation begins with the filing of a complaint by the plaintiff. The complaint is a legal document setting forth who the parties are, the facts of the case, and what laws the plaintiff claims defendant has violated. The complaint ends with a prayer for relief. The plaintiff may be seeking damages (money), specific performance in certain types of contract cases, or an injunction.
The complaint is filed with the clerk of the court where the lawsuit is to be heard. The clerk will issue a summons , which is an official notice that a lawsuit has been filed with the court and summons the defendant(s) to court to defend against it. To be effective, the defendant(s) must be served the summons and a copy of the complaint.
In certain types of cases, there may be a large number of plaintiffs injured by a defendant’s actions. This may happen in a product liability lawsuit where a product is purchased by many thousands of consumers, all of whom experience the same product failure. In these cases, several lead plaintiffs may attempt to form a class in a class action lawsuit against the defendant(s). Under federal civil procedure rules, class actions may be granted when:
- There are so many plaintiffs that
- It is impractical for them to file separate lawsuits;
- There are questions of law or fact that are common to members of the class; and
- The lead plaintiffs will fairly and adequately protect the interests of the class.
The defendant must file an answer to the complaint within a specified period of time, usually thirty days. The answer is a paragraph-by-paragraph response to the complaint, admitting certain allegations and denying others. The answer may admit, for example, noncontroversial claims by the plaintiff such as the defendant’s name, address, and the nature of the defendant’s relationship with the plaintiff. Each time the defendant denies a plaintiff’s claim in the complaint, that sets up a controversy or argument that must be litigated. The answer may also contain any affirmative defenses and counterclaims the defendant wishes to pursue. Taken together, the complaint and answer are known as the pleadings .
Discovery
After pleadings are filed, litigation moves into the discovery phase. Discovery is a process in which each side finds out information about the other’s case. Discovery is designed to prevent trial by surprise, where either side may suddenly produce a damning piece of evidence. Because trials are based on the discovery of truth, they should be tried on the merits of the case rather than a party’s deceit. In that spirit, the rules of discovery are broad. Relevant evidence is discoverable even if it is later ruled to be inadmissible at trial by the judge. Parties are also obligated to turn over material that supports their case, without demand from the other side unless it is protected by the attorney-client privilege.
| Type of Discovery | Description | ||||
| Request for Admission |
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