Federal Rules of Civil Procedure

The FRCivP were adopted to ensure that there was a uniform method for pursuing your lawsuit and
enforcing your remedies. While substantive rules of law create your rights and obligations, the procedural
rules allow you to enforce these rights. As you can see in Rule 1, the Rules apply to all litigation in federal
courts.

Understanding civil procedure helps the paralegal understand the background for the entire practice of law.
As you begin to understand this subject, you will realize why the many steps that occur in law work, are
necessary.

The Rules can be accessed by going to:

Be sure to take a few moments to familiarize yourself with the language of the rules. Read through a few of
them and get a feeling for how they progress. You should notice that they read very much like a story. The
Rules are divided into eleven sections ranging from “I. Scope,” to “XI. General Provisions.” The Rules are
detailed and have self-explanatory titles. When you need to look for a Rule, you can often find it by scanning
the titles. Otherwise, refer to the index in the back.

You will want to refer to the Rules for the discussions to the units in this unit. The Rules are usually printed in
soft cover, but can be costly. If you want to own a copy your best bet may be to try a second-hand college
bookstore, in the law section. Alternatively, they will be available anyplace you go to work, so don’t feel you
need to make a huge investment.

As an aside, you should know that there are also Federal Rules of Criminal Procedure that govern how
criminal litigation - more frequently referred to as prosecution - is conducted. Just like the civil procedure
rules, the criminal procedure rules govern every aspect of prosecuting and defending a criminal case. In
addition, there are Federal Rules of Evidence, which govern evidentiary proceedings in litigation.

Concurrent with the FRCivP, as mentioned briefly in the summary, each state has developed and adopted
procedural rules that apply in state courts. These rules generally parallel the federal rules, but for obvious
reasons, this Unit will focus on the federal rules. The paralegal will be well-advised to become familiar with
the state rules when starting to work. These can be located on state court webpages, or, once again, a copy
can be purchased at most university bookstores, law sections. Each state also has counterpart criminal
procedure and evidence rules.

The Florida Rules of Procedure can be viewed on this page:

http://www.floridabar.org/tfb/TFBLegalRes.nsf/0/E1A89A0DC5248D1785256B2F006CCCEE?OpenDocument  
(Links to an external site.)

Structure of the Federal Court System

The federal court system is organized in three tiers: trial courts, intermediate appellate courts, U.S. Supreme
Court.

This link provides an excellent explanation of the structure of the federal courts:

http://www.uscourts.gov/EducationalResources/FederalCourtBasics/CourtStructure/StructureOfFederalCou
rts.aspx (Links to an external site.)
This link will show you a map of the federal courts, with links to more information on the courts.

http://www.uscourts.gov/court_locator.aspx (Links to an external site.)

The trial courts are named United States District Courts. These are courts of general jurisdiction. Each district
also includes a bankruptcy court – a specialized court that can only entertain bankruptcy petitions. There are
two specialty courts established by the U.S. Constitution, Article I, that have very strict jurisdiction. These are
the U. S. Court of Military Appeals, the U.S. Tax Court, The Court of International Trade – addressing cases
involving international trade and customs issues; and The Court of Federal Claims – addressing claims for
money damages against the U.S.

The intermediate appellate courts are the United States Circuit Courts of Appeals. There are twelve circuit
courts. These courts entertain appeals fro the district courts within their circuits and from the specialty
courts as well.

The U.S. Supreme Court is the highest court in the federal system. It hears cases from both the federal
appellate courts, and the state courts. It is the court of last resort in the federal system. However, it only
hears cases from state courts when a federal issue is involved.

On a practical note, it behooves the paralegal to become acquainted with the structure of the state court
system. The court website is an excellent place to start. The state’s law schools may also have helpful
structure explanations on their websites.

Additionally, you should take the time to go to your local trial court and familiarize yourself with the layout,
the process for filing claims, and such. This will make practical life much easier when you start practice.

Basic Jurisdiction Questions

Now that you know the structure of the courts, your next step is to file a lawsuit. Before you can begin any
lawsuit the natural question you must answer is, “In which court do I bring my lawsuit?” Stated another way,
“Which is the proper forum for my suit?” “Forum” means the court considering the case. The answer to the
question depends on several very practical considerations of jurisdiction and venue. We will address each in
turn.

There are two types of jurisdiction a court must posses to entertain a lawsuit: subject matter jurisdiction,
and personal jurisdiction.

Jurisdiction refers to the power of a court to resolve a dispute, or to consider a case.  Subject matter
jurisdiction inquires whether the court has been granted the authority by the constitution or statute to hear
the matter involved in the case.

1. State or Federal? Your first decision must be whether to bring the lawsuit in state court, or federal court.
If your claim falls under a federal specialty court matter, that is your answer.

If that’s not your case, you must decide whether your claim falls under the subject matter jurisdiction of the
federal general jurisdiction courts, the federal circuit courts. These courts have jurisdiction over two types of
cases: federal question cases and diversity jurisdiction cases.

State courts and federal courts have concurrent jurisdiction over many cases. That means both courts can
hear disputes on the same matters. Federal courts, however, are courts of limited jurisdiction. They can only
entertain cases addressing issues of federal law – these are called federal question cases, and cases
involving diversity jurisdiction – where the parties are from different states and the amount at issue exceeds
$75,000. Unless your case falls under one of these considerations, you cannot bring your lawsuit in federal
court.
Federal question cases, as the name implies, are cases that raise some question based on federal law. The
technical definition is: “all civil actions arising under the Constitution, laws or treaties of the United States[.]”
28 U.S.C. § 1331. In practice, this means that your client is suing under some cause of action created by
federal statutes - such as the Civil Rights Act, or the Equal Employment Opportunities Act, or the Americans
with Disabilities Act. Federal courts have subject matter jurisdiction to hear these lawsuits.

That is not to say that state courts cannot consider suits on these issues. There are many tactical or strategic
reasons for choosing a federal or a state court. However, if your suit is of this nature, the federal courts have
subject matter to consider it and you may file your suit there.

For example, if you represent a client who’s patent rights have been infringed, the suit must be brought in
the court that has jurisdiction over patent disputes: The United States Patent and Trademark Court. If you
represent a client who is filing for bankruptcy, the patent and trademark court won’t have authority to
consider the case. You must bring the client’s claim in the United States Bankruptcy Court. If you represent a
client who is suing an insurance company for unpaid benefits, neither the bankruptcy nor patent court has
the authority - the jurisdiction - to resolve your client’s dispute and award your client the relief sought. This
is the thougt process you must follow to answer this jurisdiction question.

Federal courts have diversity subject matter jurisdiction, as delineated in 28 U.S.C. 1332, when your client is
suing a resident of another state. This area of jurisdiction was created in the U.S. Constitution because of the
prevailing belief at that time that the state courts would favor the state’s residents in resolving disputes
against foreigners, and foreign residents would feel they were not being fairly treated in federal court.
Instead, the federal court would be neutral on this issue and would treat both parties fairly.

It is important that you realize that for the federal trial court to have diversity jurisdiction over a case, there
must be complete diversity. That is to say that there can not be anyone on one side of the “v.” from the
same state as on the other. (The “v.” comes from Jones “v.” Smith.) If you’re involved in initiating a lawsuit
and Georgia, Louisiana and Alabama plaintiffs are suing Florida, Costa Rica and Venezuela defendants, you’re
fine. However, if your defendants are from Florida, Costa Rica and Venezuela, and you later move to add a
defendant who resides in Georgia, you’ve destroyed the residency requirement. Your opponent will file a
motion to remove the case from federal court. That case will be sent to state court. For purposes of diversity
jurisdiction, typically the courts will look to the state of residence of the parties, or of the corporation
involved.

In addition, to establishing the diversity of the parties’ citizenship, the claim at issue must exceed $75,000.
28 U.S.C. § 1332. If your claim falls short of that sum, the federal court will not have jurisdiction to consider
your lawsuit.

The diversity jurisdiction rule is not without some qualifications, however. If you believe your case falls
under this area of jurisdiction, you would be well-advised to do some reading into the topic before making
an ultimate decision.

If your claim does not fall under either of these jurisdictions, you can bring your case in state court. The next
question for you to answer will be which state court. As with federal courts, state courts also have myriad
rules setting out which court can hear which claims. These are found in your local procedure rules.

Aside from subject matter jurisdiction, you must also consider the concept of personal jurisdiction when
deciding which court will be able to hear your suit.

2. Personal jurisdiction questions whether the court has authority over the person of the defendant. As a
practical matter, if the relief the court grants your client is to have any meaning, it must be awarded by a
court that can force the defendant to comply with the award. Otherwise, the judgment is just a piece of
paper without value.

The basis of this inquiry lies in due process constitutional considerations. It would violate due process for a
court in Alabama to hear a case involving a Connecticut-resident defendant and issue an order compelling
the defendant to pay money. Unless the Connecticut resident has acted in some way to give the Alabama
court authority - jurisdiction - over his person, the Connecticut resident’s due process rights would be
violated.

A court has personal jurisdiction over any defendant who resides in the territorial jurisdiction of the court.
Hence, Alabama courts have personal jurisdiction over persons residing in Alabama. Also, courts have
personal jurisdiction over corporations that are present in the territorial jurisdiction of the court. This
includes corporations incorporated in the state, and others doing business in the state. Please note,
however, that whether a corporation is “doing business” in the state may not be a clear question, and has
been the cause of much litigation and scholarly debate.

In rem and quasi in rem jurisdiction. Courts also have jurisdiction to render decisions affecting property
located within their geographic territory. This applies to real property and certain personal property, also.
This is called in rem jurisdiction. “In rem” is latin for against a thing. Then you are suing against a property,
such as to quiet title. Quasi in rem jurisdiction occurs when you are suing primarily based on property rights
and your action also includes personal rights. The landmark case on quasi in rem jurisdiction is Shaffer v.
Heitner, 433 U.S. 186 (1977).

These concepts are different from state to state, and you should research the in rem jurisdiction rules in your
state before you apply this inquiry to any specific case.

In addition to jurisdiction over defendants within the territory, the court also has “long-arm jurisdiction”
over defendants.

Long arm jurisdiction is conferred on the court by statute. These statutes generally provide that persons
who come into the state for certain purposes, and commit acts that lead to lawsuits while they are in the
state, have submitted themselves to the court’s personal jurisdiction. The reasoning behind these statutes is
straightforward: persons from other states should not be able to commit acts within the state, and harm
state residents with impunity. The landmark long-arm jurisdiction case in this area is  International Shoe v.
Washington, 326 U.S. 310 (1945). That case established the minimum contacts test. Under the minimum
contacts test, before a court can exercise jurisdiction over a defendant the plaintiff must demonstrate that
the defendant has “Minimum contacts... such that maintenance of the suit does not offend "traditional
notions of fair play and substantial justice." International Shoe basically established that when a defendant
goes into a state and conducts activities there, or purposely directs its activities into a state, its not fair for it
to avoid jurisdiction on the basis that its not a resident of the state.

Generally, to assert long arm jurisdiction over a defendant, in addition to satisfying the minimum contacts
test, you have to meet the requirements in the state’s long arm jurisdiction statute. The steps taken to
comply with these requirements usually must be pled in the jurisdictional allegations in the complaint. This
gives the court authority to exercise long-arm jurisdiction over a foreign defendant.

These sites offer additional helpful information on court jurisdictions.

http://www.catea.org/grade/legal/juris.html  (Links to an external site.)

http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/Jurisdiction.aspx  (Links to an
external site.)
Once you’ve decided that your subject matter and your defendant fall within the jurisdiction of the court,
you must still consider a third question: venue.

3. Venue rules dictate which court is in the most convenient geographical location to bring the lawsuit. This
question assumes that there is more than one court available for the lawsuit, applying the concepts above.
Then you must determine which of those courts would be the proper venue for the lawsuit. Again, each
state has its own venue rules. Generally, these provide that the court closest to the parties, or the
controversy, is the venue of choice. Some state rules provide that if there are two equally appropriate
forums, the one chosen by plaintiff is to be respected. Other say the opposite, the one more convenient to
defendant applies.

In federal court, the venue rules generally state that a lawsuit can be brought where the defendant resides,
where the event giving rise to the litigation occurred, or, if there is no other forum, in any court where the
defendant may be found. Needless to say, this is overly simplified. You must carefully research this issue if
you are ever required to make this call.

Once you’ve researched and answered the three questions above:

1. What court has subject matter jurisdiction over my lawsuit?

2. What court has personal jurisdiction over my lawsuit; and

3. What is the proper venue for my lawsuit?

you must still consider strategic reasons for selecting one forum over another, such as, “Can the defendant
seek to transfer out of this court?” “How long does it take the court to consider and resolve cases?” “Is the
judge or the jury going to decide my case in this court?”

These questions can have significant impact on the outcome of the lawsuit, and they must be answered
before filing a lawsuit.

It is important to file a lawsuit in the right court the first time because delays caused by litigating over the
choice of forum could have serious negative impact on your case. Many times, a plaintiff’s lawsuit has been
dismissed in court A, after protracted litigation over whether the suit could be entertained in that forum.
Thereafter, upon filing in court B, the suit is dismissed because the statute of limitations expired while the
dispute in court A over jurisdiction was transpiring. This would be an excellent example of malpractice.

In reality, this is just a question of practice and experience. If you are unfamiliar with court traditions in your
area, you may want to read local court rules, or ask someone with more experience for guidance in making
this choice.

Anatomy of a Lawsuit

Beyond understanding that the FRCivP govern how to conduct litigation, and understanding the fundamental
concepts of how to select which court you bring your lawsuit in, you need to have a solid overview of the
steps involved in litigation. With this overview on your side, you’ll be far better equipped to understand the
details of the Rules.

Let’s divide the litigation process into three parts: pre-trial; trial; and post-trial.

Pre-Trial - Everything that occurs pre-trial is done with an eye towards facilitating the trial of the case. Every
document generated, requested, and produced is done with an eye towards what is going to happen - or at
least what you hope to see happen - at trial. This is what you must always be focusing on when you are
working on a file pre-trial.

1. Investigation Stage. The obvious first step to litigation is that the client engages the firm for
representation in a lawsuit. Before anything else can happen, the case is thoroughly investigated. In many
offices this is accomplished by the paralegal. This involves verifying the facts reported by the client, verifying
records that may prove the client’s damages.

This may also involve other professionals, as many firms hire private investigators to ferret out the facts in a
case. These are individuals hired to learn facets of the facts and investigate aspects of the evidence of which
the client may not even know or be aware. This is a crucial step in the litigation, because many of the tactics
and strategies used in the process will depend on the information revealed, or obscured during the case
investigations.

Another important feature of the investigation is that it reveals the whereabouts of the defendants involved
in the suit. In order to know whom to sue, and to serve with process, the firm must be aware of the names
and addresses of the defendants involved. This can be particularly tricky with corporate defendants, as
corporate relationships can be less than obvious.

2. Pleadings. Once the facts in the case are established sufficiently to frame a complaint in the case, the
litigation officially begins. The document - or pleading - that marks the official commencement of litigation is
the complaint. The complaint is the document that sets forth the grounds the plaintiff is relying on to ask the
court for relief.

Pleadings are the documents that narrow the issues and facts disputed in a lawsuit. Whereas motions are
documents requesting some action, or leave to act, from the court, pleadings only serve to establish the
basic facts and theories on which the lawsuit is built. The complaint is the first pleading filed.

The complaint is followed by the defendant’s answer. This is the defendant’s initial document, and the
defendant has to admit or deny the allegations in the complaint. In this manner, the disputed issues and
facts are narrowed. In addition, the defendant now asserts any affirmative defenses applicable to the case,
and also any counterclaims or cross claims against any other party.

There may be a reply to the answer, and an answer to the counterclaims or cross claims by the respective
parties thereto.

These are the only documents that are categorized as pleadings.

3. Motions: In between the filing of these pleadings, the parties may file various motions, designed to
dispose of, or arrest the development of, the case. Obviously, if the court is convinced and grants a
dispositive motion, the case is dismissed, or finished.

We will discuss the various types of motions available in later units.

4. Discovery. Discovery is the part of litigation designed to authenticate and obtain from the opponent the
information we learned about during our investigations. Since introduction of evidence at trial depends on
rather stringent standards set out in the Rules of Evidence, we need to obtain our evidence from a source
those evidentiary rules recognize, so the court will allow us to present the evidence.

During discovery, through a series of requests and questions, we gather from the opponent, the information
we need to prove our case. For instance, during discovery, we ask the opponent for the design to the faulty
ladder that caused our client to fall. We ask the opponent for the test results on the faulty brake system that
caused our client’s accident. There are several discovery tools that facilitate these information exchanges
and we will discuss them in detail in later units.

5. Pre-Trial Preparation - Once the above steps in the litigation are completed, the case is set for trial. Now
you begin the process or assembling all the information and evidence harvested as a result of all these steps
into some format that can be readily accessed at trial. This often involves coordination of exhibits,
organization of documents, and demonstrative aids.

This also involves assembling your schedule of witnesses, issuing subpoenas to the persons who need to be
ordered to appear and ensuring that everything will be ready to go by the date of trial.

In cases that are complex, this may also include scheduling mock trials that will allow everyone involved to
rehearse the process. This ensures that everyone is completely prepared by the day of trial.

Trial - The trial is the proceeding where we present our client’s evidence before the judge and jury. The goal
of the trial is to convince the jury that our client should prevail and should receive the relief being requested.

Additionally, our opponent will have the opportunity to present evidence as well. The opponent’s goal is the
convince the jury that our client is not entitled to the relief the client seeks. Additionally, the defendant may
present evidence to prevail on any counterclaims, or defenses that the defendant may have raised in the
pleadings.

During trial, the parties may also raise various motions related to the evidence and the events transpiring. As
with motions generally, they are designed to move the case along, and, hopefully, to dispose of it without
having to go through the entire trial. The court will rule on these motions as they come up. ( CAUTION - do
not confuse motions with objections to evidence. When an item of evidence is undesirable, or improper, the
way to challenge it is to object. Objections are sustained or overruled; motions are granted or denied.)

The trial ends upon the occurrence of either of three events. The first possibility is a mistrial - this is granted
by the judge because of some misconduct affecting the fairness of the proceedings. This usually results in
that another trial is conducted. The party causing the mistrial, by misconduct or otherwise, may be
sanctioned or penalized.

The second eventuality is the return of a verdict by the jury. The verdict is the jury’s announcement of who
has won the case. In many cases, the jury will also grant the winner a monetary award - the damages the
party was seeking.

A third alternative that would bring an end to trial is if the parties settle. Its not unusual for the parties to
reach a settlement partly through trial. After all, this is the first chance the opponents get to see and
evaluate first hand the evidence in the other party’s case. This could prompt the parties to see things clearer
and to be driven to settle.

Post-Trial. The last phase of litigation occurs post-trial. this refers to all the events after the jury’s verdict is
returned. Realize that the return of a verdict does not result in the automatic entry of a judgment. There are
still several steps in the litigation process that must be undertaken.

1. Post-trial motions are filed after the verdict - These motions usually challenge the sufficiency of the
verdict and the entitlement of the prevailing party to the verdict rendered. These may range from motions
challenging the admissibility of evidence to motions charging jury misconduct in some instances. Other
motions may attack the amount awarded by the jury.

2. Rendition of the judgment occurs after the post-trial motions are resolved - This signals an end to the
court’s labors, except for any steps that may be required to enforce the judgment.
3. Collecting on the judgment - Once the court enters a judgment in favor of a party, that party bears the
burden of enforcing, or collecting on the judgment. This includes taking steps to discover where a party’s
assets may be, in order to attach them and collect. This may involve procedures in aid of executing, such as
discovering bank accounts, and other financial resources of the parties.

4. Appeal - The appeal is a separate procedure, but it does take place post-trial. (Although there are several
appeals that can be taken from pre-trial events.) The appeal may have the effect of staying the judgment -
and preventing execution thereon. The appeal is usually prosecuted by the losing party. The Appellate
Procedure Rules govern the appeals process. The most important thing a for paralegal who does not
specialize in this area to know is the deadline for filing an appeal from an unfavorable order or judgment.

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I. Basics of Drafting Court Documents

Before we broach the specific contents of the various documents filed in court, let's review the structure of
all court documents.

The first thing you must be aware of are physical requirements for court filings. Does the court require a
special size, or weight of paper? Does the court required numerated paper - paper with numbers running
along the side? These questions can only be answered by referring to your local rules.

The following websites, however, should offer you a valuable overview of the drafting process, and some
helpful examples of the forms and formats involved.

http://www.archives.gov/federal-register/write/legal-docs/index.html  (Links to an external site.)

http://www.law.umich.edu/library/info/Pages/default.aspx  (Links to an external site.)

Additionally, do not overlook the fact that many procedural rules include sample forms for the documents
you will be filing. Form book, pleading books and practice manuals may also have helpful forms that can
assist you in putting together a draft of any document you may need.

See Fla. R. Civ. P. 1.900 et seq., Forms for Use With Civil Procedure Rules

See Fed. R. Civ. P. Appendix of Forms.

You might do well to go to one of these rules (use Westlaw or access them online on the court websites) and
print a copy of a form so you can follow along.

Parts of a Legal Document: These are the various parts of a legal document.

Caption - The first, and most visible part of the complaint is the caption. The caption contains all the
descriptive information about the case in which we are filing our document.

Title - Following the caption, the subject of the document appears in the title.
Body - The body of your complaint follows the title.

The last paragraph of the body is your "wherefore" clause, your prayer for relief.

Date & Signature - Under FRCivP Rule 11, documents must be dated and signed by the attorney. Usually, the
following is sufficient:

Respectfully submitted,
August 22, 2000.

________________
Attorney at Law
Bar # 00000000
Attorney for Plaintiff

Certificate of Service – FRCivP Rule 5 requires that documents be served on opponents and parties involved.
Rule 5(d) requires that the document have a certificate of service attesting to the manner and date of such
service. This certificate must indicate: the manner in which it is served - i.e., by mail, fax, hand delivery; the
date on which it is served; the attorney's signature.

A certificate of Service looks like:

Certificate of Service

A copy of the foregoing was mailed/faxed/hand delivered on _____ day of ________, 2000 to all parties of
record:

List of Parties Served

________________
Attorney at Law
Bar # 00000000
Attorney for Plaintiff

This is sufficient to demonstrate compliance with Rule 5 service requirements.

Many offices have programs that format all of these elements into a document for you. You need to be
aware, however, of how the documents should look, so you can be prepared to spot errors.

This is the standard format we will be using for all documents prepared in this course. As you continue in this
Unit, this is the standard format being referred to.

II. Pleadings

Having discussed the details of how to format a standard document to be filed in court, lets talk about the
substance we will be including in those documents.

A. The Complaint
The initial pleading that sets the litigation in motion is the complaint. The complaint has to comply with all
the requirements in Rule 8. The complaint has to contain

(1) a short and plain statement of the grounds upon which the court's jurisdiction depends . . . , 
(2) a short and plain statement of the claim showing that the pleader is entitled to relief, and  
(3) a demand for judgment on the relief the pleader seeks.
Under the federal Rules, we practice notice pleading. This means all we have to provide to the opponent,
and all our pleading needs to be sufficient, is a short and plain statement supporting the relief we are
seeking. In practice, however, this is not as simple as it sounds.

Let's examine, part by part, the contents of the complaint.

Introduction-the first paragraph of the complaint, as in any properly written document, is the introduction
paragraph. This paragraph should introduce to the reader the writer and lead into the following paragraphs
setting out the relief.

The introduction paragraph is usually not numbered, but the paragraphs that follow are numbered.

Jurisdictional Statement The paragraph(s) that follow the introduction must contain "(1) a short and plain
statement of the grounds upon which the court's jurisdiction depends," as per Rule 8(a)(1). This is very
straightforward and usually requires no more than the following:

1. This is a case of diversity jurisdiction, because the plaintiff is a resident of California and the defendant is a
resident of Iowa; or

1. This is a case of federal jurisdiction under the Federal Fair Housing Act.

In addition to statements on subject matter jurisdiction, the complaint must include statements to satisfy
the court that it has personal jurisdiction over the defendants and all the parties in the case.

The statement need not be complex, but must be accurate and complete. Sometimes, several paragraphs
are required to complete this mandate depending on how many parties are involved.

Statements of Claim for Relief - After jurisdictional pre-requisites have been alleged, the complaint must go
on to allege "(2) a short and plain statement of the claim showing that the pleader is entitled to relief,"
under Rule 8 (a)(2). Once again, this is nothing more than several statements asserting the cause of action
under which you are bringing the complaint. However, before you can do this, you must know what causes
of action you intend to assert on the client's behalf.

The elements of the cause of action are the items that you must prove to be entitled to relief. You can learn
what these are by researching caselaw on the topic. There you will see the elements of the cause of action.

In order to satisfy this requirement, you need to assert the client's facts, such that they comply with the
elements of the cause of action. Before you begin writing, then, you must review the client's file and be sure
you are well versed with the facts of the client's case.

The allegations should be sufficient to show that the plaintiff is entitled to bring the cause of action being
prosecuted. If these allegations are insufficient, the court will be able to grant any dismissal motion the
opposition may chose to file. More on motions in a few moments.

After pleading the elements of your case, you plead your damages. These are allegations setting out the
relief you intend to receive as a result of the lawsuit. There are general damages - the typical losses one
would expect from the type of case you are bringing, and special damages - that are particular damages to
your client, not necessarily generated from the loss in the case. Special damages must be pled specifically in
many jurisdictions.

In addition to damages, your client may be seeking other types of relief, and you must request these with
specificity. For example, if your client wants an injunction stopping the neighbors from holding rehearsals for
the rock band, that is what you must ask for. Or if the client wants specific performance of the contract to
sell the condominium, you must specifically ask for this relief.
These allegations are sometimes called the "prayer for relief."

Alternative Pleading - You are entitled to plead alternatively different causes of action, and different
damages. You do not have to commit firmly to only one cause of action, to the exclusion of others, if it is
deemed that your client may be entitled to several types of relief.

Typically, the issues will be submitted to the jury and the jury will decide what cause of action you've proven,
and what damages to award the client thereon.

After the allegations, the complaint must be signed and dated by the attorney representing the client. Be
aware that pursuant to Rule 11, all documents must be signed by the attorney, or the document is stricken
by the court. Under the Rule, the signature is an attestation that the pleading is not being presented for any
improper purposes, such as harassment or delay. If that is not the case, the attorney and the client can be
sanctioned by the court for violating this Rule.

Note that there is no Certificate of Service in the complaint, as there is in other motions and pleadings. This
is because the complaint cannot be mailed, and must be served on the defendant's person.

By this point, your complaint is complete. Your last step is to assemble any supporting documents that need
to be filed with the complaint. This depends on the cause of action you are asserting. For example, if your
action is based on breach of contract, the contract may need to be attached to the complaint. If the cause of
action is breach of an insurance policy, the policy may need to be attached.

Filing and Service - The complaint does not take on any legal effect until it has been filed with the court and
served on the opposing party. Most offices have a messenger service that routinely files papers with the
court, including complaints.

Service must be effected within the time provided by the rules in the jurisdiction.

B. The Answer
Pursuant to Rule 12, any defendant upon whom a complaint is served has twenty days to respond.
Generally, this response takes the form of filing an answer to the complaint.

As the name of the document implies, this filing puts the court and the plaintiff on notice of what the
defendant's position is vis a vis the allegations in the compliant.

Generally, the answer is a response, paragraph by paragraph, to each allegation in the complaint. The
defendant must admit, deny, or state that defendant has no knowledge of every allegation in the complaint.
The defendant can also admit in part, and deny in part, the allegations.

The answer to the complaint must be carefully drafted so that it is truthful, but does not jeopardize your
client's defenses or claims. Remember that Rule 11 requires every document to be signed by an attorney.
This requires that the answer be truthfully drafted.

Usually, prior to drafting the answer the legal assistant should do a fair amount of research and become
conversant with the issues involved. This research will also be invaluable in determining whether the
complaint is susceptible to attack by any motions.

In addition to responding to the allegations in the compliant, the defendant has to assert in the answer any
affirmative defenses that defendant may have in the case. An affirmative defense is an assertion by the
defendant that there was a legitimate legal reason for the events that occurred, and on that basis, defendant
is not liable to the plaintiff for damages.
For example, in the breach of contract case, let's say your client is suing the painter for not finishing the
paint job on the house. The painter may assert as an affirmative defense, that the client never cooperated in
scheduling the painting, wanted the painting performed at odd hours, such as after dark or at midnight, and
therefore the painter was unable to perform the painting contract.

Like the complaint, the answer must also include a prayer for relief, typically that the court award the
plaintiff nothing and allow the defendant to recover the costs of defending the lawsuit.

The defendant may also here assert any counterclaims against the plaintiff. Counterclaims are causes of
action the defendant is entitled to bring against the plaintiff. A Counterclaim is an independent cause of
action the defendant could have initiated against the plaintiff, but instead, has chosen to assert as a
counterclaim. The defendant is now technically also the counter- claimant, and the plaintiff is the counter-
defendant.

Let's return to our example of the thwarted house painting contract. Let's assume that in addition to not
letting the painter schedule the painting, the owner also gave the painter an insufficient funds check to
purchase the paints and supplies. In this instance, in addition to being able to raise the affirmative defense of
impossibility of performance, the painter can also bring a counterclaim to collect on the bad check.

The answer is also the proper place to raise cross claims. These are causes of action you wish to bring against
a co-defendant. Let us say that the house owner sued the painter for breach of contract, and the landscaper
for breach of contract as well, failure to landscape. These two parties are co-defendants in the house
owner's lawsuit.

Let us say that the painter was not able to schedule the paint job because the landscaper left trees and
shrubs piled up against the house, making painting impossible, and making the scheduling impossible. The
painter would bring a cross-claim against the landscaper, the other defendant, charging the landscaper with
causing the paint delays. It would then fall upon the jury to decide the relative responsibility of all the parties
for the house owner's harm.

Now, the painter-defendant is the cross-plaintiff, and the landscaper-defendant is also the cross-defendant.

These pleadings all conform to the standard pleading construction rules we discussed with the complaint.
These pleadings must be signed and must have a certificate of service. The answer does not require a
summons and need to be served by a process server.

C. Other Pleadings 
Beyond the complaint and the answer, with the cross and counterclaims, the plaintiff can reply to the
answer, the plaintiff can answer the counterclaim, and the co-defendant, can answer the cross-claim.

All of these documents must follow the standard requirements for pleadings discussed above, must be
signed and all parties must be copied.

III. Motions

As we noted earlier, a motion is a document asking the court to do something for us, or letting us do
something. Stylistically, the paper is like every court document. It contains a title announcing what we want,
and at the end contains a signature, and a certificate of service. Motions are governed by Rule 7.

The body of the motion is the section where you set out the reasons why you are entitled to the action
requested. Generally, in the motion, this requires no more than a few paragraphs setting out the facts you
are relying on to seek relief.
Appended to the motion, or in the body thereof, is the memorandum of law supporting your position. This is
a memorandum that contains reasoning and authority explaining the legal basis for the relief we seek.
Generally, following research on the issue involved, you would draft a memorandum explaining your client's
position in the motion, and this would be incorporated into the motion.

Responses to Motions are generally allowed by all court rules. Like the motion itself, the response contains a
recitation of the reasons why the relief requested in the motion is not appropriate and should not be
granted. The response also contains a memorandum of law explaining the authorities that support that
position. The response is also served on all parties. The time for filing responses is generally indicated by
court rules. If the rules are silent, you will want to file your response within a prudent time before the
motion is set for hearing.

Disposing of Motions. As the description implies motions require court action. This action is sometimes
taken by the court on its own (or sua sponte) in response to a filed motion. In other jurisdictions, you must
set your motion for hearing if you want it to be acted upon. This requires that you contact the judge's
chambers and schedule the matter to be heard. You, as the movant - or proponent of the motion - must
notify all the parties of the hearing date, time and place. Usually, the rules will require that you afford your
opponents a particular amount of time before the hearing in order to prepare for the hearing and respond to
the motion.

When the judge has ruled on a motion - remember, motions are granted or denied - a written order is
generated. The order announces the court's ruling and advises the parties of any action they may need to
take as a result. A copy of the order is mailed to all parties.

Types of Motions
You can file a motion on practically anything - to get additional time, to be allowed to be absent from court,
anything you can think of can be requested by way of a motion. It's up to you to come up with these
inventive motions. The following are the more substantive motions and when they are used.

Motion to Dismiss - A dismissal motion is a defense motion asking the court to end the plaintiff's case. This
motion asserts that there is some infirmity in the plaintiff's case, and the case cannot be allowed to survive
for that reason.

The title of the motion usually announces the basis for attacking the case. For example, the Motion to
Dismiss For Failure to State a Claim, tells the court that the complaint is insufficient because the elements of
the cause of action were not pled, and, hence, the plaintiff is not bringing any recognizable action.

This website has a sample motion with commentaries and revisions to improve it:

http://www.cod.uscourts.gov/Portals/0/Documents/Judges/MSK/msk_samp_dis_mot.pdf  (Links to an
external site.) (Links to an external site.)

The Motion to Strike is the plaintiff's counterpart to the dismissal for failure to state a claim motion. This
motion asserts that a defense should be disallowed because it is defective. This can rest on facial invalidity of
the defense, or legal invalidity.

Motions to Dismiss for Lack of Jurisdiction announce to the court that it has no authority to hear the matter
at hand. These can range from requests for dismissal because the subject matter of the complaint falls
outside the court's jurisdiction, to dismissal because the defendant is not within the courts jurisdiction.
These motions can be dispositive of cases in many instances.
The Motion to Dismiss For Failure to Serve A Party is filed when your client has not been properly or timely
served by the opponent. The Rules contain strict time limits for service, and failure to observe these limits,
without good reason can result in dismissal of the suit.

The Motion for a More Definite Statement is a defensive motion. This motion essentially states that
defendant cannot answer the complaint because the allegations therein are not sufficiently definite to allow
defendant to formulate a response. 

The Motion for Summary Judgment and Motion for Judgment on the Pleadings are motions asking the court
to resolve the case on the merits, asserting that the plaintiff's cause of action is not sufficient based on the
facts of the case.

A Motion for Leave to Amend the Complaint, or the Counterclaim, or Affirmative Defenses can be filed
requesting leave of court to alter or amend your pleadings. These motions are usually filed when you
uncover additional allegations, or causes of action during discovery and you wish to add them to this cause
of action.

The Motion to Compel Discovery is filed when you are seeking to force the court to have the opponent
comply with discovery requests. Parties are often recalcitrant in complying with discovery requests, and
these motions are geared to force parties to comply, as required by the procedural rules.

The Motion for Protective Order, on the other hand, seeks the court's protection from overzealous discovery
requests and procedures. This motion asks the court to excuse your client from compliance with the
specified discovery request. This motion is usually filed when the requested discovery is protected by some
privilege, such as attorney-client, or self-incrimination. In order to avoid the request, and not be found in
contempt for failure to comply with discovery requests, you move for a protective order.

The body of each motion must set out the relief you seek, and the facts that support your request. Each
motion must be carefully tailored to the purpose thereof.

Be advised that some local courts require parties to confer on the motions before filing them with court. The
goal is that the parties reach a compromise, or solution to the problem between them.

Do not forget to attach to the motions any supporting documents that may be required.

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I. An Overview of the Discovery Process 

Discovery is the process by which we gather the evidence we need to introduce at trial, to win our case. The
difficulty comes in knowing how to go about gathering the evidence we need.
As a point of departure, we are aware of what elements we need to prove at trial because we have
researched and know the elements of our cause of action. We need to gather evidence to prove these
elements.

Sometimes, our client will produce some of the evidence we need. Ordinarily, however, the rest of the
evidence will be in the opponent’s hands. Sometimes the evidence we need is in the hands of third parties.
The discovery tools we will examine are designed to allow us access to that evidence, regardless of who has
it.

The procedure for discovery are detailed in the Federal Rules of Civil Procedure. We will confine our
discussion to these rules. Any reference to rules is thereto.

Discovery is available regarding “any matter, not privileged, that is relevant to the claim or defense of any
party[.]” Rule 26(b)(1). The rules of discovery are very broad. Whether an item will be admissible as evidence
at trial, however, is governed by the Federal Rules of Evidence. The evidentiary rules contain many other
consideration for admission that are not germane to discovery concerns.

Discovery strategies vary from litigator to litigator. Often the best approach is to tailor your discovery
strategy to the vagaries of the case at hand. Therefore, the important starting point for discovery is in
knowing what information you have already, and understanding what gaps you have to fill in before
presenting the case at trial.

Another goal of discovery is to learn what is in your opponent’s hand. Through discovery we can find out
what documents the opponent has, what the opponent is disputing and what they are lacking. This can us
help begin draw a picture of where the opponent’s case is standing.

Additionally, many times our purpose for requesting certain discovery items is to trace or find other
documents we could use to build our case. Sometimes we request a document to learn whether there are
other documents or items available or in existence.

Good discovery strategy is best summarized as detective work. You need to have a healthy curiosity, and an
inquisitive mind. This will lead you to look in the right places and get answers to all the questions facing your
client. You use discovery as an aid to building a puzzle. As you propound discovery, you are seeking the
pieces to that puzzle. Without an awareness of the big picture, you won’t know what pieces you’re needing
next.

Another fundamental thing to remember when dealing with discovery is the importance of properly
calendaring discovery and calculating times for responding to discovery requests. Time frames for discovery
responses are found in your local rules. Under the federal rules, you generally have 30 days to respond
discovery requests.

Lets consider each discovery tool individually.

Depositions are the best known discovery tool. At one time or another, everyone knows someone who has
been deposed in connection with something. Either they were a witness to an event, they were asked to
testify about some incident. In addition, depositions are frequently depicted in television shows and movies
dealing with legal drama.

Depositions can be taken of parties and of non-party witnesses and experts.

The deponent is the person being deposed. You secure the person’s appearance by sending the person a
subpoena - a court order commanding the person’s appearance. The deposition will be memorialized by a
court reporter, who will transcribe the proceeding. This will by typed into transcript form so the parties have
a record of what the person testified to at the deposition. Please realize that scheduling the court reporter is
one of the paralegal’s most important duties. Contrary to popular belief, court reporters do not magically
appear when needed. The paralegal must schedule the deposition at a time convenient for all the players
involved, including the court reporter. Once scheduled, the paralegal must send a notice of deposition to all
concerned.

At the deposition, the deponent is examined - or questioned - by the attorney who sought the deponent’s
appearance. The deponent is placed under oath by the court reporter. The opponent will have the
opportunity to cross-examine - or find weaknesses in the testimony of - the deponent.

The main goal of deposing a witness is to learn what that witness will say in response to specific questions.
Usually key questions concerning the basic elements of our case. Additionally, the deposition gives everyone
an opportunity to observe the witness as the questions are asked and answered. This allows the attorneys to
assess how valuable the witness may be at trial.

Unlike written forms of discovery, in the deposition the questions can be geared to what is taking place. If
the witness is not cooperating or understanding, the questions can be geared to elicit the testimony you are
hoping for from the witness.

The deposition transcript becomes an important impeachment tool at trial. If the witness alters the
testimony, the transcript can be relied on to confront the witness, and to let the jury know that the witness
has altered their version of the story, undermining the witness’s credibility in the jury’s eyes.

Lastly, the deposition can be used to memorialize a witness’s testimony. Sometimes witnesses are not
expected to live through the time of trial. Sometimes witnesses cannot be located by the time of trial,
because of the lapse of time. In these instances, the witness’s testimony - and its value to your case - is not
lost. You can present the deposition transcript at trial.

The paralegal’s role at the deposition can range from keeping track of the exhibits and the documents being
used for questioning, to observing the demeanor of the witness and making notes thereon. Also, the
paralegal may notice the opponent’s reactions to certain questions posed to the deponent, and notify the
attorney accordingly.

The detriments to the deposition are several. To begin with, they are very costly. The court reporter’s fee
must be paid, the time spent at the deposition is time away from other work, etc. If you are deposing an
expert, there may be a fee for the expert’s time.

Additionally, at the deposition you risk revealing your hand to the opponent. The opponent also has a
chance to question the witness and can really test the value of the witness’s testimony prior to trial.

Interrogatories

Interrogatories are a list of questions directed to a party in the case. You prepare questions that are
propounded on the party. The persons answering them is the responding party. Interrogatories can only be
propounded on parties to the case. The questions generally ask for some type of information.

Some sample interrogatory questions would be:

State the name, address, and phone number of each and every person who witness the incidents described
in the complaint.

List all the documents, test results, and lab analyses relied on to arrive at the position asserted in the
counterclaim.
List all the component parts used to construct the faulty ball bearing joints in the malfunctioning chair lift,
and the manufacturer of each part.

The value of interrogatories lies in the flexibility and availability of the procedure. Interrogatories can be
propounded as often as needed, within limits set by the court. They can be prepared at the leisure of the
proponent and can be answered at the respondent’s leisure.

Rule 33 limits interrogatories to 25 questions. Local rules often contain limits on the number of questions, as
well.

Interrogatories can be used as a tool for locating other documents, and other evidence. They can be used to
locate the identity or availability of other witnesses. You can learn the exhibits an opponent is relying on,
and how the opponent is computing the damages being sought.

A detriment to interrogatories is that the respondent has time to contemplate the response. This usually
makes for sterile material, devoid of real substance. If the answers are unsatisfactory, you cannot follow up
immediately, as you could at a deposition. However, because of its ease of use, and relative low expense,
this is a good tool for finding out background information, narrowing down the parameters of you
opponent’s case and locating documents and other evidence.

The trick to well-propounded interrogatories is writing questions that will get the responses you seek. The
key is to use precise language in creating the question. This comes with practice over time. There are also
many study and practice aids that have standard interrogatories, and other sample discovery, that can serve
as a point of departure for the novice.

Interrogatories are typed in the same heading style and format used for pleadings and motions.

Requests for Admission

At first blush, the request for admission may seem identical to the interrogatory, but there are several
crucial differences between the two.

Under Rule 36, the request for admission is a tool used for establishing “for purposes of the pending action
only, of the truth of any matters.” This serves the important purpose of narrowing down the issues of fact
involved in the case. In so doing, we also narrow down the items we need to prove at trial.

For example, you send the opponent a request for admission, and item 12 states: Admit that defendant was
driving the vehicle that bumped the plaintiff’s car.

When the defendant admits item 12, you no longer need to worry or plan on how to prove this defendant
was driving the car. No need to get police reports, get the officer to testify and identify the defendant, etc.

Another use for the admission is to establish the authenticity of documents. Once again, this avoids the
trouble and expense of establishing it at trial.

In addition, if the party admits a matter, and later disputes it at trial, the court may sanction that party.
Under Rule 37, failure to cooperate in discovery or with disclosure could result in the court ordering the
recalcitrant party to pay fees and costs for proving the admitted matter.

At a minimum, requests of admissions can be used to nail down technical and preliminary issues. Well-
crafted admissions requests can also serve to cement substantive issues as well. The effectiveness of the
admission will depend on how well the requests are drafted. As with interrogatories, the key is to use as
precise language as possible in creating the question.
Requests for Admissions are typed in the same format used for pleadings and motions. There are many
practice manuals that will help the novice with sample admissions requests for different types of cases.

Requests for Production

This is the tool to use when you need the actual document or item - not information about it. There are
times when the document needs to be examined and considered in preparing your case. Sometimes, you
need to actually see the ladder the plaintiff fell from, or make it available to your expert, in order to prepare
your case.

There are two methods for receiving documents. If the respondent is a party, a request for production is all
that is necessary. The request must specify the items requested, and the date time and place for production.
In reality, you will usually receive copies in the mail.

If the items are being requested from a non-party, you must issue a subpoena duces tecum in conjunction
with the Request for Production. The subpoena duces tecum compels the non-party to appear and bring the
requested items. This non-party is also entitled to seek protection of the court to prevent being forced to
disclose documents that the non-party feels should not have to be disclosed.

The starting point for drafting requests for production is to create a list of the document or items you would
like to receive. With that list in mind, you draft a series of requests, each request asking for one item.

For example, a production request may read as follows:

You are instructed to produce, pursuant to Rule 34, the following documents at the undersigned’s office on
May 10, 2001 at 3PM.

1. The insurance policy issued to plaintiff.

2. The “no-coverage rider” issued to plaintiff.

3. The coverage addendum listing plaintiff as an insured.

And so on. As you can see, with each subsequent question you build your evidence base.

Bear in mind that requests for production are also styled as court documents, just like motions and
pleadings. Once again, the key to success is to use as precise language as possible in creating the request.

In responding to a request for production, you must file a written response with the court detailing what you
have provided under the request, and why you did not provide the omitted items.

You have the opportunity to contest items you believe should not be turned over by taking the matter to the
judge on an appropriate motion.

Discovery of Expert Witnesses

In many areas of litigation, cases are won and lost based on expert testimony. Fact witnesses testify to their
personal knowledge of the case - the facts of the case. They testify on what color the light was, whether it
was raining or snowing, or whether the paint was peeling. This is how you build the factual premise of your
case - the elements of your cause of action.

Sometimes, however, this is insufficient to establish all the elements of the cause of action. Sometimes you
need to bring in an expert, who knows more on a specialty topic than the fact witnesses, to testify about the
conditions of your case.
Experts are persons who have training and experience in a particular field, and are therefore qualified to
share their opinion on the facts with the jury. Qualifications of experts vary from jurisdiction to jurisdiction,
depending on the evidentiary rules. Each side in the litigation locates experts to testify on the matters
important to these elements of the case.

An expert can offer testimony that the accident wouldn’t have happened if the breaks had been designed
with different screws, for instance. Or the surgery wouldn’t have been necessary if a different cast had been
used on the leg. Or the boat wouldn’t have turned if a different ballast had been installed. Whatever the
topic may be, the expert is authorized by the rules of evidence to offer an opinion on the facts in the case. In
contrast, the fact witnesses can only testify as to the facts they perceived.

As you can imagine, this makes expert witnesses very powerful allies in the trial. It is vitally important that
you know how your opponent’s expert is going to testify, and prepare to counteract the testimony
appropriately.

The most straightforward way of determining what the expert how testify is to depose the expert. In
conjunction with the deposition notice, you may want to issue a subpoena duces tecum and order the expert
to produce the documents he is relying on to formulate his opinions. Sometimes the opponent will claim
that some of the documents are protected by work product or another privilege. Be prepared for this
situation.

Another way to counter the testimony of an expert, in person al injury cases is through the invocation of the
independent medical examination [IME] rule, Rule 35. This rule authorizes any party to request the
opponent in a personal injury action submit to an independent medical examination.

This rule was created because in many instances, you cannot counter the expert opinion of an injured
person’s physician unless you also examine the injury. The notice to submit to an IME looks like all other
court documents, and merely instructs the injured party to present themselves for examination at a given
date and time.

Failure to appear can expose the party to sanctions.

II. Responding to Discovery

When you propound discovery you must have a broad overview of the client’s case, where you need to go to
counter their case and where to go with your case. In responding, it is your goal, to respond with your
client’s strategy in mind, while keeping within ethical limits.

As a preliminary step, you may need to organize or collect documents and information to formulate your
responses. Sometimes the documents required are in the client’s possession and you must make
arrangements to get those items. Do you need to do any research to answer the discovery? If so, you need
to plan appropriately to carry this out, as well.

Here are several main points to bear in mind in responding to discovery:

1) Your first consideration must be whether any of the discovery being requested is protected by any
privilege. If it is, you must assert this privilege by filing and pursuing the proper motions with the court.
Response times to the discovery are suspended in most jurisdictions pending outcome of the dispute over
the privilege.

2) Time deadlines for the responses must be observed. In some instances, delayed responses will be stricken,
items may be deemed admitted, or sanctions may be imposed as a result of delay.
3) Limits to responses must be observed. Many times we cannot give thousands of pages in response to
discovery or produce thousands of pages in response to requests. The paralegal needs to carefully think out
how to engineer the response in order to comply with the goals of discovery and with practicality.

4) The response will bear the same structure generally as the request. It will look like a typical court
document and will be labeled “Response to. . .” You will want to file your responses with the court, in
jurisdictions where this is required. The responses must be signed, and service must be certified.

Bear in mind your ethical obligations. While litigation is an adversarial process, the ethical rules impose an
obligation to be candid and truthful. We are not supposed to prevail based on trickery and deceit. Be aware
that you will be subject to sanctions and penalties if discovery responses are deemed to violate this
obligation.

III. Additional points

Mandatory disclosure of discovery is becoming more prevalent these days. These rules are being enacted in
response to public and court perception that discovery is used to harass and delay the process of justice. You
need to read your local court evidence and procedure rules to determine the extend of mandatory
disclosure, if it exists in your jurisdiction. Generally, the rules, sometimes this will be in statutes, will dictate
that certain items of evidence have to be shared with the opponent regardless of whether the opponent has
requested the information.

In practice, what happens is that if you come into possession of an item of evidence, or a statement that falls
under the mandatory disclosure categories in the rule or statute, you must automatically remit the
information or a summary thereof to the opponent.

Before you act on any item of evidence under mandatory disclosure provisions, be sure you understand
completely the requirements and procedures under these rules.

In many jurisdictions there is also a continuing obligation to disclose. This means that once you’ve responded
to a discovery request, you need to update the response every time the information changes. In other
words, once you provide the address of witnesses to the opponent, you must send an updated address list
every time you learn the witness has moved.

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I. Docketing

In case you haven’t noticed by now, law generates enormous amounts of paper. All the paper must be
tracked in a manageable way. This must be done so that the papers are accessible, and are properly
responded to. This also avoids the negative consequences of letting the papers fall through the cracks. In
fact, every well-seasoned paralegal has a horror story to tell about the time “the documents were mis-
docketed.” This can lead to court or bar sanctions.

Docketing involves the process of logging incoming papers, and calendaring response times. This latter step
requires that you know what the response time is, know how to compute it. Lets take a close look at each
step.

Once the complaint is filed in a case, the clock starts running, and it continues to run on practically every
document that is filed. Most law offices have established procedures or computer programs for docketing
and calendaring documents. You will, of course, need to learn to use your office’s program or procedure. An
overview of the typical process follows:
1. Docket the document. When the document arrives, your first step is to log it into the office. This serves as
the official record that the document has been received. This is either done manually, or in a computer
program. The document is then routed to the proper file, or the proper person attending to that matter. This
process is usually followed for all incoming papers, including letters and notices.

2. Decide on an appropriate response. Once the document is docketed, you must determine whether the
document requires a response. From this point forward, we will only address litigation documents - these
generally all require responses.

If you are unsure what response the documents require, the rules of procedure are the authority on that
topic. Many computer programs will automatically prompt you that a document requires a response when
you enter the nature of the document. You cannot, however, automatically rely on the computer program,
as misidentification of response needs and times can have dire consequences. If you are in doubt, refer to
someone with more experience, or the person responsible for handling the case.

3. Calculate response time. This requires a two-fold inquiry. First, we must determine how much time we
have to respond. Then, we must properly calculate that time.

Where to locate the response times - by now you know the answer lies in the procedure rules. Local
response times vary greatly from jurisdiction to jurisdiction, and from court to court. As a rule of thumb,
thirty days seems to be the predominantly popular time frame, with twenty days also being very common.
You must refer to your local rules for the answer to this crucial question. Again, many offices have developed
flow charts that allow you to recognize, at a glance, the time allowed to respond to different items.

Let’s assume you’ve received a complaint in a case, filed in federal court. You consult the Federal Rules of
Civil Procedure, and under Rule 12 (a)(1)(A), you read that you have twenty days to serve an answer. You
would consult the rules in any court to determine response times in this same manner.

The second inquiry then becomes, how do you calculate when your twenty days are up? This would seem a
simple matter, but in a moment you will realize it is not. For example, which day do you count as day one for
purposes of your twenty days? Is day one the day the complaint was filed? Is day one the day the compliant
was given to the process server? Is day one the day you receive the complaint?

Rule 12 (a)(1) dictates: “a defendant shall serve an answer (A) within 20 days after being served with the
summons and complaint[.]” (Emphasis added). So you start to count after the complaint is served. That
being said, we turn to Rule 6(a), Computation, for the remainder of the counting explanation.

Rule 6(a) explains that “the day of the act, event, or default from which the designated period of time begins
to run shall not be included.” So you do not start counting the day you are served, but rather, the next day.

Next, Rule 6(a) states: “The last day of the period so computed shall be included, unless it is a Saturday, a
Sunday, or a legal holiday . . . .”

Therefore, when you count your twenty days, if day twenty falls on one of the excluded days, your response
is due on the following day.

You must docket your deadline accordingly. Some programs will automatically alert you or “tickle” you a
certain number of days before the deadline. If you calendar manually, you may chose to do this for yourself
as well.

In scheduling your work, be sure to allow a realistic amount of time to gather the information you will need
to respond, and to do any research that the response may require.
On a final note, many deadlines are extended by intervening motions and events. When these things come
up, you need to alter your calendar accordingly.

Deadlines are not always feasible. When a deadline can not be met in good faith, the deadline can be
extended by filing a motion for extension of time to do the act with the court. These motions are not always
granted, and some courts disfavor them. You need to have a contingency plan in the event this motion is
denied.

II. Trial Preparation

Once the case has been sufficiently developed through discovery, the case should be ready to go to trial.

As the trial date approaches, the paralegal will be called upon to prepare all the materials for trial.

Exhibits and Evidence will need to be prepared for ease of access, reference and introduction. To accomplish
this, the paralegal needs to have an excellent picture of all the exhibits and evidence that will be needed at
trial, and a method for indexing these items at a moment’s notice. Its not unusual for an attorney to run to
the paralegal, in the middle of voir dire, or cross-examination, and ask for a document that is needed
immediately.

The most practical way to accomplish this is to begin with a list of all exhibits and evidence to be introduced.
Now you know everything you need to assemble, and you begin to have a good picture of how you’ll need to
classify and transport all of it.

Your next task is to mark and index the exhibits. Every court has its own preferences on how to mark
exhibits. You’ll want to adhere to the court’s method to avoid any glitches at trial.

Visual aids are used with increasing frequency at trial. If you will be showing the jury any video, or playing
any recordings for the jury, you need to ensure that the appropriate equipment will be available in the
courtroom. If not, you need to arrange to get that equipment to the courtroom for the trial.

If the visual aids require computer equipment, or computer hook-ups, you must also ensure that these will
be accessible, as well.

The paralegal is also responsible for scheduling witnesses for trial testimony. The assistant must coordinate
what order the witnesses will be asked to appear, and what days they will need to be available.

Last minute motions in limine - preliminary motions presented before the beginning of trial - will have to be
prepared and researched. These motions are usually crucial to the development of the case. Obviously, you
have to prepare to go ahead regardless of how the court rules on the motion.

The trial notebook will probably be the most crucial piece of preparation the paralegal will assemble. The
notebook - sometimes several notebooks - contain all the documents and papers of the case that have to be
quickly accessed at the trial. The notebook usually contains a detailed outline or index to allow instant access
to the documents located therein.

In addition, the trial notebook may contain the schedule of the trial, and the order in which the attorney
plans to proceed with the evidence. The notebook may contain contact numbers for all the witnesses and
the experts.

Its an excellent idea to place a copy of all the court’s prior rulings in the notebook, in case a ruling is
questioned, the assistant will have fast access to the document.
The proposed jury instructions should also be included in the notebook. These instructions are usually
developed far in advance of the trial. They must also be available for quick access. Its an excellent idea to
include additional copies of your proposed instructions to share with the judge and opposing counsel.

Proposed voir dire questions are also enclosed in the notebook. These are the questions developed to ask
the prospective jurors. They are meant to ensure the chosen jury is neutral in the cause, and is not biased
against your client.

As you can see, the trial notebook is like the central nervous system of the case. If anything is going to go on
at trial, it is referenced in the notebook. In an abundance of caution, some firms always prepare a backup
copy of the notebook.

III. Obtaining A Judgment

Once the jury has rendered a verdict, and the post-trial motions have been disposed of, the prevailing party
must secure a judgment. Sometimes this is no more momentous than preparing a judgment and submitting
it to the court for signature.

The legal effect of the judgment is that it creates a judgment debtor and judgment creditor relationship.
This means that the person against whom the judgment is entered is legally indebted to the person who
prevailed for the amount of the judgment.

At this point, the judgment debtor has the option of appealing the judgment. This means seeking review in
an appellate court, and asserting that there were errors that affected the judgement. If convinced, the
appellate court may select to set the judgment aside, or award any other relief.

If there is no appeal, or if the judgment is affirmed (approved) on appeal, your next step is to collect the
judgment for your client. Many times, in all practicality, you’ll need to do this to be able to collect your fee,
as well.

Collecting on the judgment requires several steps. First, you must determine how and from where to collect
the judgment. Once a judgment is entered, most procedural rules permit you to engage in  discovery in aid
of execution. At this point, you are allowed to delve into the financial records of the defendant to discover
where the defendant’s assets are located. Once found, the next step is attaching the asset and collecting
your money.

Discovery in aid of execution usually proceeds like regular discovery, with the goal being the location of
assets. You request financial documents from the defendant, and schedule depositions, as may be
necessary, to find the defendant’s assets.

Additionally, you may want to request production from non-parties who may be in control of the
defendant’s assets, such as banks, credit unions, etc. Sometimes the asset you are seeking to attach is a
piece of property. You will then need to verify that the defendant is the actual owner.

Once you have located an asset that is sufficient, you move the court to enter a judgment lien against the
asset. How you proceed on the judgment lien depends on the custom of your jurisdiction. Some states allow
you to foreclose on a judgment line, as you would a mortgage, some states allow you to sell your judgment
lien. In other states, the lien remains in place pending disposal of the property by the defendant. At this
point, the proceeds are paid to the lienholder.

If the asset is tangible, such as personal property, you can seek to have the sheriff attach the property and
deliver it to you. You need to request the court to issue a writ of execution, allowing the sheriff to do this.
There is always the possibility that the judgment debtor will be “judgment proof.” This means the defendant
has no assets from which you can satisfy the judgment. In theory, this is an important consideration before
beginning any lawsuit. This would render all the efforts throughout the litigation in vain. In practicality
however, the answer to the question can never be fully known until you attempt to execute on the
judgment.

IV. Ethical Considerations in Litigation

The last topic I want to touch upon is perhaps the most important. Much is said about the practice of law,
particularly in the litigation context, that highlights the pitfalls in the ethics of most litigators. All too
frequently, paralegals also fall prey to the criticism.

True, the litigation process is the quintessential advocacy arena. In order to prevail on our client’s behalf, we
have to be willing to work hard, and force the opponent to work harder. This should not include, however,
committing ethical violations, and disregarding the ethics of the profession. It should be unnecessary to
remind you that the consequences of violating ethical rules can range from having your client’s case
dismissed, to being ordered to pay sanctions, and on occasion, being forced to pay the opponent’s fees
incurred in defending against unethical conduct.

The following are various ethical considerations to bear in mind when litigating a case:

1. Remember the ethical obligation of client confidentiality. As you work on a file, and talk to expert
witnesses, and others, remember that you are not to divulge client confidences. Once divulged, the
confidences are lost.

It is true, that persons who are assisting on the client’s case can be told about certain client information.
However, in an attempt to avoid an improvident disclosure, please exercise great caution in deciding whom
to share information with, and in deciding what information to share.

2. In drafting documents, be ethical in your representation. Be a zealous advocate, but do not overly inflate a
client’s claim, or downright misrepresent a claim.

There’s a big difference between having healthy esteem for a client’s case, and representing that your client
has lost the use of the arm, when all that has happened is a broken bone - that heals in 6 weeks.

3. Remember the ethical requirement that we be candid with the tribunal. This means, obviously, that we
not lie to the court. Not so obvious, however, it also means that we disclose to the tribunal authority
controlling in the jurisdiction that is adverse to the client. Yes! This is actually included in the Model Rules of
Ethics. This means that if you are aware of a case that is adverse to your client in your jurisdiction, you have
an ethical responsibility to inform the tribunal. This doesn’t mean, however, that you are not allowed to
offer argument distinguishing that case. You cannot, however, remain silent about it.

4. Always refrain from all manner of false representation. This applies to all written submissions or oral
representations to the tribunal or to the opponent.

The ethical rules attempt to summarize how legal professionals should behave despite being involved in
litigation. This would be a good point to review your ethics notes from Unit One. The best litmus test of how
to conduct yourself is to remember the Golden Rule - do onto others . . . . Remember that the legal
community is very small, even in the largest cities. The firm we are litigating against today, may be
partnering with us for another case tomorrow. Or may be looking for a paralegal tomorrow. Also consider
that the client you are representing today will be gone once the case is over, but your reputation you carry
with you forever. Don’t tarnish that reputation for a momentary victory.