Chp. 3 - Court Procedures
Introduction.
American and English courts follow the adversarial system of justice.
Although clients are allowed to represent themselves in court
(called pro se representation),(1) most parties to lawsuits hire
attorneys to represent them. Each lawyer acts as his or her client’s
advocate, presenting the client’s version of the facts in
such a way as to convince the judge (or the judge and jury, in
a jury trial) that this version is proper.
In an adversarial system of justice, the judge’s role is
viewed as nonbiased and mostly passive, but not entirely so. For
example, if a defendant chooses to act as his or her own counsel,
the judge will often seek to elicit testimony during the trial
proceedings to ensure a fair trial. Additionally, judges sometimes
ask questions of witnesses, limit the amount of information that
can be introduced about an expert witness’s qualifications,
and even suggest types of evidence to be presented. Judges are
responsible for the appropriate application of the law. They do
not have to accept the legal reasoning of the attorneys and can
base a ruling and a decision on a personal study of the law.
Most of the judicial procedures that you will read about in this
chapter are rooted in the adversarial framework of the American
legal system. The adversarial system also frames the ethical rules
that govern the behavior of attorneys, who are key participants
in the litigation process.
In this chapter, after a brief overview of judicial procedures,
we illustrate the steps involved in a lawsuit with a hypothetical
civil case (criminal procedures will be discussed in Chapter 10).
Section 1: Procedural Rules.
Understanding and meeting procedural requirements are essential
in the litigation process. All civil trials held in federal district
courts are governed by the Federal Rules of Civil Procedure (FRCP).(2)
Each state also has rules of civil procedure that apply to all
courts within that state. These rules specify what must be done,
when, and at which stage of the litigation process. In addition,
each court has its own local rules of procedure that supplement
the federal or state rules. The parties to a lawsuit must comply
with the procedural rules of the court in which the lawsuit is
filed.
Although civil trials may vary greatly in terms of complexity,
cost, and detail, they all share similar structural characteristics.
Even though each case has its own particular set of facts, to
which specific laws apply, most civil lawsuits typically follow
some version of the course charted in Exhibit 4–1. This exhibit
shows that civil litigation typically progresses in very well-defined
and discrete stages. Although it may take years for a case to
wind its way through court, almost every case follows the same
basic steps.
We now turn to our hypothetical case. The case arose from an automobile
accident, which occurred when a car driven by Antonio Carvello,
a resident of New Jersey, collided with a car driven by Jill Kirby,
a resident of New York. The accident took place at an intersection
in New York City. Kirby suffered personal injuries, incurring
medical and hospital expenses, as well as lost wages for four
months. In all, she calculated that the cost to her of the accident
was $100,000.(3) Carvello and Kirby have been unable to agree
on a settlement, and Kirby faces the decision of whether to sue
Carvello for the $100,000 compensation that she feels she deserves.
Section 2: Consulting with an Attorney.
The first step taken by virtually anyone contemplating a lawsuit
is to obtain the advice of a qualified attorney. In the hypothetical
Kirby-Carvello case, Kirby may consult with an attorney, who will
advise her on what she can expect to gain from a lawsuit, her
probability of success if she sues, what procedures will be involved,
and how long it may take to resolve the issue through the judicial
process. Depending on the court hearing the case, the time costs
of the litigation may be enormous. Cases involving personal injuries
may take two to three years to resolve, and this is an important
factor for Kirby to consider.
Application: Law and the Businessperson - How to Choose and Use
a Lawyer
LEGAL FEES
Another crucial factor that Kirby must consider is, of course,
the cost of the attorney’s time—the legal fees that
she will have to pay to collect damages from the defendant, Carvello.
Attorneys base their fees on such factors as the difficulty of
a matter, the amount of time involved, the experience and skill
of the attorney in the particular area of the law, and the cost
of doing business. In the United States, legal fees range from
$60 per hour to $450 per hour (the average fee per hour is between
$140 and $160). Not included in attorneys’ fees are such
expenses as court filing charges and other costs directly related
to a case.
A particular legal matter may include one or a combination of
several types of fees. Fixed fees may be charged for the performance
of such services as drafting a simple will. Hourly fees may be
computed for matters that will involve an indeterminate period
of time. Any case brought to trial, for example, may involve an
expenditure of time that cannot be precisely estimated in advance.
Contingent fees (through the initial trial stage) are fixed as
a percentage (between 25 and 40 percent) of a client’s recovery
in certain types of lawsuits, such as personal injury. If the
lawsuit is unsuccessful, the attorney receives no fee. If Kirby
retains an attorney on a contingency-fee basis, she normally will
not have to pay any fees unless she wins the case. She will, however,
have to pay the court fees and any other expenses incurred by
the attorney on her behalf (such as travel expenses, the cost
of expert witnesses and investigations, and so on—often called
out-of-pocket costs).
Many state and federal statutes allow for an award of attorneys’
fees in certain legal actions, such as probate matters. In these
cases, a judge sets the amount of the fee, based on such factors
as the results obtained by the attorney and the fee customarily
charged for similar services. In some cases, a client may receive
an award of attorneys’ fees as part of his or her recovery.
SETTLEMENT CONSIDERATIONS
A client’s decision as to how much money he or she can afford
to invest in the resolution of a particular legal problem frequently
is the most important factor in determining the extent to which
an attorney will pursue a resolution. If a client decides that
he or she can afford a lengthy trial and one or more appeals,
an attorney may pursue those actions. Often, once a client learns
the extent of the costs involved in litigating a claim, he or
she is more willing to settle the claim for a lower amount.
For example, assume that Kirby is seeking damages of $100,000
in a lawsuit against Carvello and that the attorney’s contingency
fee is 30 percent. If Kirby is awarded $100,000, she will end
up with only $70,000 (less filing fees and other expenses incurred
by the attorney on her behalf). If Carvello offers her $75,000
to settle the claim without a trial, Kirby may want to consider
settling the claim for this amount.
SIGNING A RETAINER
Assuming that Kirby decides to sue Carvello, the next step is
to retain the attorney with whom she has consulted (or another
attorney of her choice). This is usually accomplished by signing
a retainer agreement and, if the attorney has not dealt with the
client previously, paying the attorney an advance (retainer) fee.
Once Kirby has retained an attorney and indicated that she wants
to initiate a lawsuit, the litigation process begins.
Section 3: Pretrial Procedures.
Broadly speaking, there are three phases of the litigation process:
pretrial, trial, and posttrial. Each phase involves specific procedures.
The pretrial litigation process involves the filing of pleadings
and the gathering of evidence (called discovery) and may involve
other procedures, such as a pretrial conference and jury selection.
THE PLEADINGS
The complaint and answer (and other documents discussed below),
taken together, are called the pleadings. The pleadings notify
each party of the claims of the other and specify the issues (disputed
questions) involved in the case. Pleadings remove the element
of surprise from a case. They allow lawyers to gather the most
persuasive evidence and to prepare better arguments, thus increasing
the probability that a just and true result will be forthcoming
from the trial. The basic pleadings are the complaint and answer.
THE PLAINTIFF’S COMPLAINT Kirby’s action against
Carvello will commence when her lawyer files a complaint (sometimes
called a petition or declaration) with the clerk of the trial
court in the appropriate geographical area (the proper venue).
In most states, the court would be one having general jurisdiction;
in others, it might be a court having special jurisdiction with
regard to subject matter. The complaint will contain (1) a statement
alleging (asserting) the facts necessary for the court to take
jurisdiction, (2) a short statement of the facts necessary to
show that the plaintiff is entitled to a remedy, and (3) a statement
of the remedy the plaintiff is seeking. A typical complaint is
shown in Exhibit 4–2.
The complaint will state that Kirby was driving her Ford Taurus
through a green light at the specified intersection, exercising
good driving habits and reasonable care, when Carvello negligently
drove his Cadillac through a red light and into the intersection
from a cross street, striking Kirby and causing serious personal
injury and property damage. The complaint will go on to state
that Kirby is entitled to $85,000 to cover medical bills, $10,000
to cover lost wages, and $5,000 to cover property damage to her
car.
Service of Process. Before the court can exercise jurisdiction
over the defendant (Carvello)—in effect, before the lawsuit
can begin—the court must have proof that the defendant was
notified of the lawsuit. The process of notifying the defendant
of a lawsuit is called service of process. Service of process
involves serving the defendant with a summons and a copy of the
complaint—that is, delivering these items to the defendant.
The summons notifies defendant Carvello that he is required to
prepare an answer to the complaint and to file a copy of his answer
with both the court and the plaintiff’s attorney within a
specified time period (twenty days in the federal courts).
The summons also informs Carvello that if he fails to answer or
respond to the plaintiff’s complaint within the required
time period (unless he can provide a convincing reason to the
court why he could not do so), the result will be a default judgment
for the plaintiff. A default judgment in Kirby’s favor would
mean that she would be awarded the damages alleged in her complaint.
A typical summons is shown in Exhibit 4–3.
How service of process occurs depends on the rules of the court
or jurisdiction in which the lawsuit is brought. Under the Federal
Rules of Civil Procedure (FRCP), service of process in federal
court cases may be effected by anyone who is not a party to the
lawsuit and who is at least eighteen years of age. In state courts,
the process server is often a sheriff or deputy of the county.
Usually, the server effects the service by handing the summons
to the defendant personally or by leaving it at the defendant’s
residence or place of business. In a few states, a summons can
be served by mail if the defendant so agrees. When the defendant
cannot be reached, special rules sometimes permit serving the
summons by leaving it with a designated person, such as the secretary
of state.
Serving Corporate Defendants. In cases involving corporate defendants, the summons and complaint may be served on an officer or registered agent (representative) of the corporation. The name of a corporation’s registered agent can usually be obtained from the secretary of state’s office in the state in which the company incorporated its business (and, usually, from the secretary of state’s office in any state in which the corporation does business).
Waiver of Service of Process. The FRCP allow service of process to be waived by defendant’s in federal cases, providing that certain procedures are followed. Kirby’s attorney, for example, could mail to defendant Carvello a copy of the complaint, along with “Waiver of Service of Summons” forms for Carvello to sign. If Carvello signs and returns the forms within thirty days, formal service of process is waived. To encourage defendants to waive service of process, the FRCP provides that defendants who sign and return the waiver are not required to respond to the complaint for sixty days after the date on which the request for waiver of service was sent, instead of the twenty days allowed if service of process is undertaken.
THE DEFENDENT’S RESPONSE The defendant’s response
to the plaintiff’s complaint may take the form of an answer,
in which the defendant either admits the statements or allegations
set out in the complaint or denies them and sets out any defenses
that the defendant may have. If Carvello admits to all of Kirby’s
allegations in his answer, a judgment will be entered for Kirby.
If Carvello denies Kirby’s allegations, the matter will proceed
further.
Carvello can also admit the truth of Kirby’s complaint but
raise new facts to show that he should not be held liable for
Kirby’s damages. This is called raising an affirmative defense.
As will be discussed in subsequent chapters, there are affirmative
defenses that can be raised by defendants in both civil and criminal
cases. For example, a defendant accused of physically harming
another might claim that he or she acted in self-defense. A defendant
charged with breach of contract might defend on the ground (legal
basis) of mistake or the fact that the contract was oral when
it was required by law to be in writing. In the Kirby-Carvello
case, assume that Carvello has obtained evidence that Kirby was
not exercising good driving habits at the time the accident occurred
(she was looking at a child in the back of her car instead of
watching the road). Carvello could assert Kirby’s own negligence
as a defense. In some states, a plaintiff’s contributory
negligence operates as a complete defense. In most states, however,
the plaintiff’s own negligence constitutes only a partial
defense (see Chapter 6).
Carvello could also deny Kirby’s allegations and set forth
his own claim that Kirby was in fact negligent and therefore owes
Carvello money for damages to the Cadillac. This is appropriately
called a counterclaim. If Carvello files a counterclaim, Kirby
will have to submit an answer to the counterclaim.
DISMISSALS AND JUDGMENTS BEFORE TRIAL
Many actions for which pleadings have been filed never come to
trial. The parties may, for example, negotiate a settlement of
the dispute at any stage of the litigation process. There are
also numerous procedural avenues for disposing of a case without
a trial. Many of them involve one or the other party’s attempts
to get the case dismissed through the use of various motions.
A motion is a procedural request submitted to the court by an
attorney on behalf of his or her client. When one party files
a motion with the court, that party must also send to, or serve
on, the opposing party a notice of motion. The notice of motion
informs the opposing party that the motion has been filed. Pretrial
motions include the motion to dismiss, the motion for judgment
on the pleadings, and the motion for summary judgment.
MOTION TO DISMISS The motion to dismiss, as the phrase implies,
requests the court to dismiss the case for reasons provided in
the motion. Defendant Carvello, for example, could file a motion
to dismiss if he believed that he had not been properly served,
that the complaint had been filed in the wrong court (for example,
that the court lacked personal or subject matter jurisdiction
or the venue was improper), that the complaint did not state a
claim for which relief (a remedy) could be granted, or other specific
reasons. A motion to dismiss may be—and often is—filed
with the court by a defendant instead of an answer.
The motion to dismiss is often used for purposes of delay (to
give the defendant more time to prepare for the lawsuit), because
even if the court denies the motion, the defendant generally is
given an extension of time to file an answer (or further pleading).
If the defendant fails to file the appropriate pleading, a judgment
will normally be entered for the plaintiff. If the court grants
a pre-answer motion to dismiss, the defendant is not required
to answer the complaint. The plaintiff generally is given time
to file an amended complaint. If the plaintiff does not file this
amended complaint, a judgment will be entered against the plaintiff
solely on the basis of the pleadings, and the plaintiff will not
be allowed to bring suit on the matter again.
If Kirby wishes to discontinue the suit because, for example,
an out-of-court settlement has been reached, she can likewise
move for dismissal. The court can also dismiss a case on its own
motion.
MOTION FOR JUDGMENT ON THE PLEADINGS After the pleadings are
closed—after the complaint, answer, and any other pleading
have been filed—either of the parties can file a motion for
judgment on the pleadings. This motion may be filed when it appears
from the pleadings that the plaintiff has failed to state a cause
of action for which relief may be granted. The motion may also
be filed when the pleadings indicate that no facts are in dispute
and the only question is how the law applies to a set of undisputed
facts. For example, assume for a moment that in the Kirby-Carvello
case, defendant Carvello admitted to all of Kirby’s allegations
in his answer and raised no affirmative defenses. In this situation,
Kirby would file a motion for judgment on the pleadings in her
favor.
The difference between this motion and a motion for summary judgment,
discussed below, is that the party requesting the motion may support
a motion for summary judgment with sworn statements and other
materials that will be admissible as evidence at trial; on a motion
for a judgment on the pleadings, however, a court may consider
only what is contained in the pleadings.
MOTION FOR SUMMARY JUDGMENT The motion for summary judgment
is similar to a motion for judgment on the pleadings in that the
party filing the motion is asking the court to grant a judgment
in its favor without a trial. As with a motion for judgment on
the pleadings, a court will only grant a motion for summary judgment
if it determines that no facts are in dispute and the only question
is how the law applies to the facts.
To support a motion for summary judgment, one party can submit,
prior to trial, sworn evidence obtained at any point prior to
trial (including during the discovery stage of litigation—to
be discussed shortly) that refutes the other party’s factual
claim. The evidence may consist of affidavits (sworn statements
by parties or witnesses), as well as documents, such as a contract.
The evidence must be admissible evidence—that is, evidence
that the court would allow to be presented during the trial. Hearsay,
for example, normally would not be admissible. The use of this
additional evidence is one of the features that distinguishes
the motion for summary judgment from the motion to dismiss and
the motion for judgment on the pleadings.
In the Kirby-Carvello accident, whether or not the light was red
is a question of fact. Assume that during discovery, Carvello
obtained undisputable evidence that the stoplight was not working
when he drove through the intersection. Assume further that Carvello
has evidence (a witness’s testimony) that he was not exceeding
the legal speed limit. Carvello could file a motion for summary
judgment on the ground that there was no evidence in the record
to support Kirby’s claim. The court might grant Carvello’s
motion, because there would be no genuine factual dispute and
Carvello would be entitled to judgment as a matter of law.
A motion for summary judgment can be made before or during a trial,
but it will be granted only if, when the evidence is viewed in
the light most favorable to the other party, it is clear that
there are no factual disputes. The following case illustrates
this point.
¾¾¨¾¾
Case 4.1
WOHL v. SPECTRUM MANUFACTURING, INC.
United States Court of Appeals,
Seventh Circuit, 1996.
94 F.3d 353.
BACKGROUND AND FACTS Martin Wohl worked for Spectrum Manufacturing, Inc., as the firm’s controller. His responsibilities included financial and cost accounting. Billing, which would normally fall under a controller’s supervision, was handled by Greg Reuhs, Spectrum’s general manager. According to Wohl, Reuhs’s unorthodox billing policy (involving “stealing” billing from, and allocating labor to, subsequent months) made it difficult for Wohl to obtain accurate information for his accounting reports. It also prevented management from obtaining an accurate picture of department profit and loss. Wohl discussed the problem with Spectrum’s president and others, but he was told to “get along with” Reuhs and to work out the differences. Wohl later stated that it was clear to him “that the company considered Reuhs, who was the younger man, to be a key player in the organization, and that he was to be appeased.” When Spectrum fired Wohl, who was then fifty-four years old, and replaced him with a man who was twenty years younger, Wohl sued the company in a federal district court for age discrimination in violation of federal law. Spectrum moved for summary judgment, arguing that it had fired Wohl not because of his age but because of his inability to produce certain accounting reports. The district court granted the motion, and Wohl appealed.
IN THE LANGUAGE OF THE COURT
ESCHBACH, Circuit Judge.
* * * *
A plaintiff in an age discrimination case may defeat a summary
judgment motion brought by the employer if the plaintiff produces
evidence that the employer [offered] a phony reason for firing
the employee. * * *
* * * *
* * * [The] facts all support WohlÕs contention that his
failure to produce accurate and reliable reports was not the true
reason that he was fired. We recognize that a reasonable fact-finder
may infer contrary conclusions, but we reemphasize that all reasonable
inferences must be viewed in the light most favorable to the non-moving
party [the party who is not bringing the motion; the opposing
party] on
summary judgment.
* * * *
Spectrum gave Wohl a substantial raise just before he was fired,
Wohl produced financial reports as best he was able, and Spectrum
provides no documentary evidence that Wohl did not meet their
legitimate expectations. Plaintiff also stated in his affidavit
that “[u]ntil I was fired, I had every reason to believe
that the company was happy with my performance. I was never given
any indication that Spectrum considered my efforts * * * to be
deficient.” This is essentially a swearing contest. Summary
judgment is not the appropriate place to resolve this genuine
dispute over a material fact.
DECISION AND REMEDY The U.S. Court of Appeals for the Seventh
Circuit reversed the district court’s grant of summary judgment
in favor of Spectrum and remanded the case (sent it back to the
trial court) for trial.
Full text of case
¾¾¨¾¾
DISCOVERY
Before a trial begins, the parties can use a number of procedural
devices to obtain information and gather evidence about the case.
Kirby, for example, will want to know how fast Carvello was driving,
whether he had been drinking or was under the influence of any
medication, whether he was wearing corrective lenses if he was
required by law to do so while driving, and so on. The process
of obtaining information from the opposing party or from witnesses
is known
as discovery.
The Federal Rules of Civil Procedure and similar rules in the
states set forth the guidelines for discovery activity. Discovery
includes gaining access to witnesses, documents, records, and
other types of evidence. The rules governing discovery are designed
to make sure that a witness or a party is not unduly harassed,
that privileged material is safeguarded, and that only matters
relevant to the case at hand or likely to lead to the discovery
of relevant information are discoverable.
Discovery prevents surprises by giving parties access to evidence
that might otherwise be hidden. This allows both parties to learn
as much as they can about what to expect at a trial before they
reach the courtroom. Discovery also serves to narrow the issues
so that trial time is spent on the main questions in the case.
Currently, the trend is toward allowing more discovery and thus
fewer surprises.(4)
DEPOSITIONS AND INTERROGATORIES At a minimum, discovery involves
the use of depositions, interrogatories, or both. A deposition
is sworn testimony by a party to the lawsuit or any witness, recorded
by an authorized court official. The person deposed gives testimony
and answers questions asked by the attorneys from both sides.
The questions and answers are recorded, sworn to, and signed.
These answers, of course, will help the attorneys prepare their
cases. They can also be used in court to impeach (challenge the
credibility of) a party or a witness who changes testimony at
the trial. In addition, they can be used as testimony if the witness
is not available at trial.
Interrogatories are written questions for which written answers
are prepared and then signed under oath. Interrogatories are directed
only to parties directly involved in a lawsuit (plaintiffs or
defendants), not to witnesses, and the parties can prepare answers
with the aid of their attorneys. Whereas depositions are useful
for eliciting candid responses from a party and answers not prepared
in advance, interrogatories are designed to obtain accurate information
about specific topics, such as how many contracts were signed,
the specific dates on which certain contracts were signed, and
so on.
REQUEST FOR ADMISSIONS A party can serve a written request
to the other party for an admission of the truth of matters relating
to the trial. Any matter admitted under such a request is conclusively
established as true for the trial. For example, Kirby can ask
Carvello to admit that his driver’s license was suspended
at the time of the accident. A request for admission saves time
at trial, because the parties will
not have to spend time proving facts on which they
already agree.
REQUEST FOR DOCUMENTS, OBJECTS, AND ENTRY UPON LAND A party can gain access to documents and other items not in his or her possession in order to inspect and examine them. Likewise, a party can gain “entry upon land” to inspect the premises. Carvello, for example, can gain permission to inspect and copy Kirby’s repair bills.
REQUEST FOR EXAMINATIONS When the physical or mental condition of one party is in question, the opposing party can ask the court to order a physical or mental examination by an independent examiner. If the court is willing to make the order, the opposing party can obtain the results of the examination. Note that the court will make such an order only when the need for the information outweighs the right to privacy of the person to be examined.
PRETRIAL CONFERENCE
After discovery has taken place and before the trial begins, the
attorneys may meet with the trial judge in a pretrial conference.
The purpose of this conference is to clarify the issues that remain
in dispute after discovery has taken place and to explore the
possibility of settling the dispute without a trial. If a settlement
is not possible at this time, the parties and the judge discuss
the manner in which the trial will be conducted. In particular,
the parties may attempt to establish ground rules to restrict
such things as the number of expert witnesses or the admissibility
of certain types of evidence.
Once the pretrial conference concludes, both parties will have
to turn their attention to the trial itself and, if the trial
is to be a jury trial, to the selection of jurors who will hear
the case.
THE RIGHT TO A JURY TRIAL
The Seventh Amendment to the U.S. Constitution guarantees the
right to a jury trial for cases at law in federal courts when
the amount in controversy exceeds $20. Most states have similar
guarantees in their own constitutions, although many states put
a higher minimum-dollar-amount restriction on the guarantee. For
example, Iowa requires the dollar amount of damages to be at least
$1,000 before there is a right to a jury trial. The right to a
trial by jury does not have to be exercised, and many cases are
tried without a jury. If there is no jury, the judge determines
the truth of the facts alleged in the case. In most states and
in federal courts, one of the parties must request a jury, or
the right is presumed to be waived.
JURY SELECTION
Prior to the commencement of any jury trial, a panel of jurors
must be assembled. The clerk of the court will usually notify
local residents by mail that they have been selected for jury
duty. The process of selecting the names of these
prospective jurors varies, but often they are randomly selected
by the court clerk from lists of registered voters or those within
the state to whom driver’s licenses have been issued. These
persons then report to the courthouse on the date specified in
the notice. There they are gathered into a single pool of jurors,
and the process of selecting those jurors who will actually hear
the case begins. Although some types of trials require twelve-person
juries, most civil matters can be heard by six-person juries.
Voie Dire. The process by which the jury is selected is known
as voir dire. (5) In most jurisdictions, voir dire consists of
oral questions that attorneys for the plaintiff and the defendant
ask a group of prospective jurors to determine whether a potential
juror is biased or has any connection with a party to the action
or with a prospective witness. Usually, jurors are questioned
one at a time, although when large numbers of jurors are involved,
the attorneys may direct their questions to groups of jurors instead
to minimize the amount of time spent in jury selection. Sometimes,
jurors are asked to fill out written questionnaires. Some trial
attorneys use psychologists and other professionals to help them
pick juries.
CHALLENGES DURING VOIR DIRE During voir dire, a party may challenge
a certain number of prospective jurors peremptorily—that
is, ask that these individuals not be sworn in as jurors without
providing any reason. The total number of peremptory challenges
allowed each side is determined by statute or by the court. Furthermore
a party may challenge any juror for cause—that is, provide
a reason why an individual should not be sworn in as a juror.
If the judge grants the challenge, the individual is asked to
step down. A prospective juror may not be excluded from participation
in the trial process, however, by use of discriminatory challenges,
such as those based on racial criteria (6) or gender.(7)
After both sides have completed their challenges, those jurors
who have been excused will be permitted to leave. The remaining
jurors—those who have been found acceptable by both attorneys—will
be seated in the jury box.
ALTERNATE JURORS Because unforeseeable circumstances or illness
may necessitate that one or more of the sitting jurors be dismissed,
the court, depending on the rules of the particular jurisdiction,
might choose to have two or three alternate jurors present throughout
the trial. If a juror has to be excused in the middle of the trial,
then an alternate may take his or her place without disrupting
the proceedings. Once the jury members are seated, the judge will
swear in the jury members, and the trial itself can begin.
Concept Summary 4-1
Section 4: The Trial.
Various rules and procedures govern the trial phase of the litigation
process. There are rules governing what kind of evidence will
or will not be admitted during the trial, as well as specific
procedures that the participants in the lawsuit must follow.
RULES OF EVIDENCE
Whether evidence will be admitted at court is determined by the
rules of evidence—a series of rules that have been created
by the courts to ensure that any evidence presented in court is
fair and reliable. The Federal Rules of Evidence govern the admissibility
of evidence in federal courts.
Business Law in Action: High-Tech in the Courtroom
RELEVANCE Evidence will not be admitted in court unless it is
relevant to the matter in question. Relevant evidence is evidence
that tends to prove or disprove a fact in question or to establish
the degree of probability of a fact or action. For example, evidence
that a suspect’s gun was in the home of another person when
a victim was shot would be relevant—because it would tend
to prove that the suspect did not shoot the victim.
Even relevant evidence may not be admitted in court if its reliability
is questionable or if its probative (proving) value is substantially
outweighed by other important considerations of the court. For
example, even though evidence may be relevant and reliable, it
may not be necessary—the fact at issue may already have been
sufficiently proved or disproved by previous evidence, so that
the introduction of further evidence would be a waste of time
and cause undue delay in the trial proceedings. Relevant evidence
may also be excluded if it would tend to distract the jury from
the main issues of the case, mislead the jury, or cause the jury
to decide the issue on an emotional basis. A video or a photograph
that shows in detail the severity of a victim’s injuries,
for example, would be relevant evidence, but the court might exclude
the evidence on the ground that it would emotionally inflame the
jurors.
HEARSAY Generally, hearsay is not admissible as evidence. Hearsay is defined as any testimony given in court about a statement made by someone else. Literally, it is what someone heard someone else say. For example, if a witness in the Kirby-Carvello case testified in court concerning what he or she heard another observer say about the accident, that testimony would be hearsay—secondhand knowledge. Admitting hearsay into evidence carries many risks because, even though it may be relevant, there is no way to test its reliability. For example, there is the risk that the listener incorrectly perceived the meaning of the statement that he or she heard someone else make. Without the opportunity of cross-examining the originator of the statement, the misperception cannot be challenged. Furthermore, there is the risk of faulty memory and the possibility that the statement was ambiguous or not made sincerely.
OPENING STATEMENTS
At the commencement of the trial, both attorneys are allowed to
make opening statements concerning the facts that they expect
to prove during the trial, with the plaintiff’s lawyer going
first. The opening statement provides an opportunity for each
lawyer to give a brief version of the facts and the supporting
evidence that will be used during the trial.
EXAMINATION OF WITNESSES
Because Kirby is the plaintiff, she has the burden of proving
that her claim is correct. Kirby’s attorney begins the presentation
of Kirby’s case by calling the first witness for the plaintiff
and examining (questioning) the witness. (For both attorneys,
the types of questions and the manner of asking are governed by
the rules of evidence.) This questioning is called direct examination.
After Kirby’s attorney is finished, the witness is subject
to cross-examination by Carvello’s attorney. Then Kirby’s
attorney has another opportunity to question the witness in redirect
examination.(8) When both attorneys have finished with the first
witness, Kirby’s attorney calls the succeeding witnesses
in the plaintiff’s case, each of whom is subject to examination
by the attorneys in the manner just described.
At the conclusion of the plaintiff’s case, the defendant’s
attorney has the opportunity to ask the judge to direct a verdict
for the defendant on the ground that the plaintiff has presented
no evidence to support the plaintiff’ s claim. This is called
a motion for a directed verdict (federal courts use the term judgment
as a matter of law instead of directed verdict). In considering
the motion, the judge looks at the evidence in the light most
favorable to the plaintiff and grants the motion only if there
is insufficient evidence to raise an issue of fact. (Motions for
directed verdicts at this stage of trial are seldom granted.)
The defendant’s attorney then presents the evidence and witnesses
for the defendant’s case. Witnesses are called and examined
by the defendant’s attorney. The plaintiff’s attorney
has the right to cross-examine them, and there may be a redirect
examination. At the end of the defendant’s case, either attorney
can move for a directed verdict, and the test again is whether
the jury can, through any reasonable interpretation of the evidence,
find for the party against whom the motion has been made. After
the defendant’s attorney has finished presenting evidence,
the plaintiff’s attorney can present a rebuttal, which includes
additional evidence to refute the defendant’s case. The defendant’s
attorney can refute that evidence in a rejoinder.
CLOSING ARGUMENTS
After both sides have rested their cases, each attorney presents
a closing argument. In the closing argument, each attorney summarizes
the facts and evidence presented during the trial, indicates why
the facts and evidence support the client’s claim, reveals
the shortcomings of the points made by the opposing party during
the trial, and generally urges a verdict in favor the client.
Each attorney’s comments must be relevant to the issues in
dispute.
JURY INSTRUCTIONS
After the closing statements, the judge instructs the jury (assuming
it is a jury trial) in the law that applies to the case. The instructions
to the jury are often called charges. A charge is a document that
includes statements of the applicable laws, as well as a review
of the facts as they were presented during the case. Because the
jury’s role is to serve as the fact finder, the factual account
contained in the charge is not binding upon them. Indeed, the
jurors may disregard the facts as noted in the charge entirely.
They are not free to ignore the statements of law, however. The
charge will help to channel the jurors’ deliberations.
The importance of accuracy in jury instructions, in order to protect
the rights of the accused, cannot be overstated. The reviewing
court ordinarily remands, or sends back, the case for a new trial
when the trial judge misstated the law in the jury instructions.
The following case is illustrative.
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Case 4.2
OHIO v. LESSIN
Supreme Court of Ohio, 1993.
67 Ohio St.3d 487. 620 N.E.2d 72.
BACKGROUND AND FACTS Cheryl Lessin, a member of the Revolutionary Communist Party, participated in a political demonstration over President George Bush’s ordering of American troops to the Persian Gulf in 1990. Lessin made prepared political statements to the crowd; assisted in the burning of an American flag to illustrate her own and her party’s disapproval of the president’s decision; and then pushed, shoved, and punched her way through the crowd until she was arrested by police. In 1989, prior to Lessin’s trial, the United States Supreme Court had decided, in Texas v. Johnson,(a) that burning an American flag to convey a political message is protected speech under the First Amendment. The trial court in Lessin's case, however, failed to instruct the jury on the law set forth by the Supreme Court in Johnson and did not preclude the jury from considering the evidence of political speech, particularly flag burning, in their determination of Lessin’s guilt. When Lessin appealed the court’s guilty verdict, the court of appeals affirmed the trial court’s decision. Lessin then appealed to the Ohio Supreme Court.
IN THE LANGUAGE OF THE COURT
MOYER, Chief Justice.
* * * *
The risk that a jury will premise its guilty verdict on constitutionally
protected conduct is reduced, if not completely eliminated, by
an accurate and thorough set of jury instructions which direct
the jury to refrain from considering certain evidence as proof
of guilt. In this case,
the role of the jury instructions was critical in obviating [removing]
the possibility that each juror would convict based on his or
her personal prejudices against flag burners
and Communists. * * *
* * * *
We cannot uphold Lessin’s conviction for the crime of inciting
violence because it is impossible to say with any degree of certainty
that her burning of the United States flag was disregarded by
the jury in reaching its verdict. The trial court’s instruction
given to the jury on free speech did not serve to adequately protect
the defendant’s rights because it did not inform the jury
that (1) flag burning in the absence of a call to violence is
protected speech under the First Amendment and (2) the jury is
not to consider the fact that Lessin burned the flag in determining
whether she is guilty of inciting violence. The necessity of giving
a more precise instruction is further underscored because of the
* * * exchange which occurred between defense counsel and the
trial judge during voir dire [in which the trial judge told the
defense counsel, “There has been no Supreme Court case, to
my knowledge, that permits under any circumstances that it’s
okay to burn the flag”].
DECISION AND REMEDY The Ohio Supreme Court reversed the appellate court’s decision. The case was sent back for a new trial in which jury instructions reflecting the United States Supreme Court’s decision in Johnson would be given and Lessin’s freedom of speech would be protected.
ETHICAL CONSIDERATIONS The Supreme Court’s position that
flag burning is a form of speech protected by the First Amendment
has been controversial. Many feel that to allow the flag to be
so desecrated is to repudiate the freedom and independence symbolized
by the flag. In the Court’s judgment, however, to prohibit
Americans from freely expressing their political views—symbolically
or otherwise—would violate not only the First Amendment to
the Constitution but also the basis for democratic government.(b)
Full text of case
¾¾¨¾¾
THE JURY’S VERDICT
Following its receipt of instructions, the jury retires to the
jury room to deliberate the case. As discussed in Chapter 1, in
a civil case, the standard of proof is a preponderance of the
evidence. That is, the plaintiff (Kirby in our hypothetical case)
need not provide indisputable proof that she is entitled to a
judgment. She need only show that her factual claim is more likely
to be true than the defendant’s. (Recall that in a criminal
trial, the prosecution has a higher standard of proof to meet—it
must prove its case beyond a
reasonable doubt.)
Note that some civil claims must be proved by a “clear and
convincing evidence” standard, under which the evidence must
show that the truth of the party’s claim is highly probable.
This standard applies in suits involving charges of fraud, suits
to establish the terms of a lost will, some suits involving oral
contracts, and other suits involving circumstances in which there
is thought to be a particular danger of deception.
Once the jury has reached a decision, it may issue a verdict in
favor of one party, which specifies the jury’s factual findings
and the amount of damages to be paid by the losing party. After
the announcement of the verdict, which marks the end of the trial
itself, the jurors will be discharged.
Law in the Extreme: Confusion in the Court
Concept Summary 4-2
Section 5: Post Trial Motions.
After the jury has rendered its verdict, either party may make
a posttrial motion. The prevailing party usually files a motion
for a judgment in accordance with the verdict. The nonprevailing
party frequently files one of the motions discussed next.
MOTION FOR A NEW TRIAL
At the end of the trial, a motion can be made to set aside an
adverse verdict and any judgment and to hold a new trial. The
motion for a new trial will be granted only if (a) the judge is
convinced, after looking at all the evidence, that the jury was
in error but (b) the judge does not feel it is appropriate to
grant judgment for the other side. This will usually occur when
the jury verdict is the obvious result of
a misapplication of the law or a misunderstanding of
the evidence.
A new trial can also be granted on the grounds of newly discovered
evidence, misconduct by the participants (such as the attorneys,
the judge, or the jury) during the trial, or error by the judge.
If a motion for a new trial is denied, the denial may be appealed
to a higher court. In the following case, the plaintiff filed
a motion for a new trial based on allegations of juror misconduct.
¾¾¨¾¾
Case 4.3
POWELL v. ALLSTATE INSURANCE CO.
Supreme Court of Florida, 1995.
652 So.2d 354.
BACKGROUND AND FACTS Derrick and Eugenia Powell, American citizens of Jamaican birth, were in an automobile accident with another motorist, whose insurance liability policy limit was $10,000. Claiming damages in excess of $200,000, the Powells sued their own insurer, Allstate Insurance Company, in a Florida state court to recover the difference. A jury awarded Derrick $29,320 and Eugenia nothing. The next day, one of the jurors—all of whom were white—told the Powells’ attorney and the judge that some of the jurors had made racial jokes and statements about the Powells during the trial and the jury deliberations. The Powells filed a motion for a new trial. The court denied the motion, and the appellate court affirmed. The Powells appealed to the Supreme Court of Florida.
IN THE LANGUAGE OF THE COURT
ANSTEAD, Justice.
* * * *
* * * [W]hen appeals to racial bias are made
openly among the jurors, they constitute overt acts of misconduct.
* * * This [ruling] may not keep improper bias from being a silent
factor with a particular juror, but, hopefully, it will act as
a check on such bias and prevent the bias from being expressed
so as to overtly influence others.
We also find the conduct alleged herein, if established, to be
violative of the guarantees of both the federal and state constitutions
which [ensure] all litigants a fair and impartial jury and equal
protection of the law.
* * * The obvious difficulty with prejudice in a judicial context
is that it prevents the impartial decision-making that both the
Sixth Amendment and fundamental fair play require. A racially
or religiously biased individual harbors certain negative stereotypes
which, despite his [or her] protestations to the contrary, may
well prevent him or her from making decisions based solely on
the facts and law that our jury system requires.
DECISION AND REMEDY The Supreme Court of Florida held that
explicit statements of racial bias made by jurors concerning the
parties in a case constitute overt juror misconduct. The court
remanded the case for a hearing to determine whether such statements
were made about the Powells. If so, the Powells were entitled
to a new trial.
Full text of case
¾¾¨¾¾
MOTION FOR JUDGMENT N.O.V.
If Kirby wins, and if Carvello’s attorney has previously
moved for a directed verdict, Carvello’s attorney can now
make a motion for motion for judgment n.o.v. (from the Latin non
obstante veredicto, “notwithstanding the verdict”; federal
courts use the term judgment as a matter of law instead of judgment
n.o.v.). The standards for granting a judgment n.o.v. often are
the same as those for granting a motion to dismiss or a motion
for a directed verdict. Carvello can state that even if the evidence
is viewed in the light most favorable to Kirby, a reasonable jury
should not have found in Kirby’s favor. If the judge finds
this contention to be correct or decides that the law requires
the opposite result, the motion will be granted. If the motion
is denied, Carvello may then appeal the case. (Kirby may also
appeal the case, even though she won at trial. She might appeal,
for example, if she received a smaller money award than she had
sought.
Section 6: The Appeal.
Either party may appeal not only the jury’s verdict but also
any pretrial or posttrial motion. Many of the appellate court
cases that appear in this text involve appeals of motions to dismiss,
motions for summary judgment, or other motions that were denied
by trial court judges. Note that few trial court decisions are
reversed on appeal. In most appealed cases (approximately 90 percent),
the trial court’s decision is affirmed and thus becomes final.
Concept Summary 4-3
FILING THE APPEAL
If Carvello decides to appeal the verdict in Kirby’s favor,
then his attorney must file a notice of appeal with the clerk
of the trial court within a prescribed period of time. Carvello
then becomes the appellant. The clerk of the trial court sends
to the reviewing court (usually an intermediate court of appeals)
the record on appeal, which contains the following: (1) the pleadings,
(2) a transcript of the trial testimony and copies of the exhibits,
(3) the judge’s rulings on motions made by the parties, (4)
the arguments of counsel, (5) the instructions to the jury, (6)
the verdict, (7) the posttrial motions, and (8) the judgment order
from which the appeal
is taken.
Carvello’s attorney will file a brief with the reviewing
court. The brief contains (1) a short statement of the facts;
(2) a statement of the issues; (3) the rulings by the trial court
that Carvello contends are erroneous and prejudicial (biased in
favor of one of the parties); (4) the grounds for reversal of
the judgment; (5) a statement of the applicable law; and (6) arguments
on Carvello’s behalf, citing applicable statutes and relevant
cases as precedents. The attorney for the appellee (Kirby, in
our hypothetical case) usually files an answering brief. Carvello’s
attorney can file a reply, although it is not required. The reviewing
court then considers the case.
APPELLATE REVIEW
As mentioned in Chapter 3, a court of appeals does not hear any
evidence. Its decision concerning a case is based on the record
on appeal and the briefs. The attorneys can present oral argument,
after which the case is taken under advisement. The court then
issues a written opinion. In general, the appellate courts do
not reverse findings of fact unless the findings are unsupported
or contradicted by
the evidence.
An appellate court has basically three options after reviewing
a case: it can affirm the trial court’s decision; it can
reverse the trial court’s judgment if it concludes that the
trial court erred or that the jury did not receive proper instructions;
or it can remand (send back) the case to the trial court for further
proceedings consistent with its opinion on the matter. The court
might also affirm or reverse a decision in part. For example,
the court might affirm the jury’s finding that Carvello was
negligent but remand the case for further proceedings on another
issue (such as the extent of Kirby’s damages). An appellate
court can also modify a lower court’s decision. If the appellate
court decided that the jury awarded an excessive amount in damages,
for example, the court might reduce the award to a more appropriate,
or fairer, amount.
HIGHER APPELLATE COURTS
If the reviewing court is an intermediate appellate court, the
losing party may be allowed by the court to appeal the decision
to the state supreme court. Such a petition corresponds to a petition
for a writ of certiorari in the United States Supreme Court. If
the petition is granted, new briefs must be filed before the state
supreme court, and the attorneys may be allowed or requested to
present oral argument. Like the intermediate appellate courts,
the supreme court may reverse or affirm the appellate court’s
decision or remand the case. At this point, unless a federal question
is at issue, the case has reached its end. If a federal question
is involved, the losing party (or the winning party, if that party
is dissatisfied with the relief obtained) may appeal the decision
to the United States Supreme Court by petitioning the Court for
a writ of certiorari. (As discussed in Chapter 3, the Supreme
Court may or may not grant the writ, depending on the type or
significance of the issue in dispute.)
Video: Justice O'Connor on Decision Making
Video: Justice Powell on Decision Making
Section 7: Enforcing the Judgment.
The uncertainties of the litigation process are compounded by
the lack of guarantees that any judgment will be enforceable.
Even if the jury awarded Kirby the full amount of damages requested
($100,000), for example, she might not, in fact, “win”
anything at all. Carvello’s auto insurance coverage might
have lapsed, in which event the company would not cover any of
the damages. Alternatively, Carvello’s insurance policy might
be limited to $50,000, meaning that Carvello would have to pay
personally the remaining $50,000.
If Carvello did not have that amount of money available, then
Kirby would need to go back to court and request that the court
issue a writ of execution—an order, usually issued by the
clerk of the court, directing the sheriff to seize and sell Carvello’s
nonexempt assets (certain assets are exempted by law from creditors’
actions). The proceeds of the sale would then be used to pay the
damages owed to Kirby. Any excess proceeds of the sale would be
returned to Carvello. Alternatively, the nonexempt property itself
could be transferred to Kirby in lieu of an outright payment.
(Creditors’ remedies, including those of judgment creditors,
as well as exempt and nonexempt property, will be discussed in
more detail in Chapter 31.)
The problem of collecting a judgment is less pronounced, of course,
when a party is seeking to satisfy a judgment against a defendant,
such as a major corporation, that has substantial assets that
can be easily located. Usually, one of the factors considered
before a lawsuit is initiated is whether the defendant has sufficient
assets to cover the amount of damages sought, should the plaintiff
win the case.