Introduction

American and English court systems

follow the adversarial system of justice.
Each client is represented by an attorney
although a client is allowed to represent
herself (called “pro-se”).
Chapter 3
The American Court system follows
Court Procedures procedural rules that ensure due
process.

§1: Procedural Rules §2: Consulting an Attorney

Court systems developed around the Generally, the first step in litigation is
common law concept of “due process” contacting any attorney to seek qualified
which requires adequate notice and a fair legal advice.
and impartial hearing. Legal Fees (hourly vs. contingent fee).
For example, all federal trials are Settlement Considerations.
governed by the Federal Rules of Civil
Procedure and Federal Rules of
Evidence.
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§3: Pre-Trial Procedures

Litigation- Pleadings
(Stages of Litigation)
Pleadings.
Discovery.
1st 2nd 3rd 4th 5th
Pre-Trial. Pleadings // Discovery // Pre-Trial // Trial // Post
Trial.
Post-Trial.

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1st Stage:
Pleadings-Service
Pleadings-Complaint
Prepare Pleadings Defendant served with Complaint and
Summons.
File Petition/Complaint.
• Court acquires jurisdiction over subject matter and
Court acquires Personal Jurisdiction over
Plaintiff. Defendant (person or corporation).
• Facts: what happened. Corporate Defendants served via Registered
• Prayer: Court relief. Agent.
If the Defendant is out-of-state, Court can
acquire jurisdiction by “long-arm” statutes.

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 Pleadings-Answer Pleadings-Answer
The Answer is the Defendant’s response Defendant’s Answer:
to the allegations stated in the Plaintiff’s States General Denial.
Complaint.
Move for Change of Venue.
In the Answer, the Defendant must
specifically admit or deny each allegation Allege Affirmative Defenses.
in the Complaint. Counter Claim against Plaintiff.

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Answer-Affirmative Defense Answer- Affirmative Defense

Defenses in which the defendant
essentially claims that even if all of the
plaintiff’s allegations are true, the
plaintiff cannot win because there is a
more powerful law on the defendant’s
side that will allow the defendant to win.
Fraud is an example of an affirmative
defense that might be asserted in a
breach of contract case.
Burden of proof is on the Defendant to
show fraud actually took place.

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Answer-
Answer-Motion to Dismiss
Counter or Cross Claims
A counterclaim is a lawsuit filed by the Defendant can move the Court to dismiss
Defendant against the Plaintiff, in response the Action for various reasons, such as:
to the original complaint. A cross-claim is The Court lacks jurisdiction.
against a co-Plaintiff or co-Defendant. The Plaintiff has failed to make all of the
allegations, in his Complaint, that the law
Counter-
requires (i.e., the plaintiff has failed to state a
Claim
D1 Cross- cause of action).
Claim
P VS.
D2
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Pleadings-Answer Litigation- Discovery

Move to Dismiss.
Motion for Judgment on Pleadings.
1st 2nd 3rd 4th 5th
Motion for Summary Judgment. Pleadings // Discovery // Pre-Trial // Trial // Post

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 2nd Stage: Discovery Litigation- Pre-Trial
Discovery is the process by which parties
obtain information from the opposing
party prior to trial. 1st 2nd 3rd 4th 5th
Pleadings // Discovery // Pre-Trial // Trial // Post
Depositions & Interrogatories.
Requests for Admissions.
Requests for Production Of Documents, Object
and Entry.

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3rd Stage:
Litigation- Trial
Litigation-Pretrial
Mediation-Arbitration.
Disposition Without Trial.
Default Judgments. 1st 2nd 3rd 4th 5th
Pleadings // Discovery // Pre-Trial // Trial // Post
Dismissals (With/Without Prejudice).
Summary Judgment.
Settlement.
Pre-Trial Orders (ex:TRO, In Limine).

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§4: The Trial The Trial [2]

Trial is fundamentally an evidence The Defendant will “object” to Plaintiff’s

presentation and authentication
procedure.
To prevail in a civil trial, Plaintiff must
introduce a preponderance of competent
evidence with respect to each disputed
allegation in order to prove it.
evidence and the judge will rule on each
objection. If the judge “overrules” the
objection, the evidence is admitted for the
jury to consider. If the judge “sustains”
the objection, the evidence is not
admitted into the trial.

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The Trial [3] The Trial [4]

Bench Trial (no jury). Opening Statements.
Jury Selection. Plaintiff’s Case--Evidence:
Voire Dire. Witnesses- Direct examination vs. Cross X.
Challenges/Pick the Jury. Admissibility of evidence decided by judge.
Impanel Jury. Parties object to admission of evidence and
Alternate Jurors. judge decides, as a matter of law, whether
evidence may be admitted into the trial.

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 The Trial [5]
Plaintiff’s Case (cont’d).
Party may impeach the testimony or credibility
of opposing witness by showing prior
inconsistent statements and/or Perjury.
Defendant’s Case.
Closing Arguments.
Jury Instructions and Deliberations.
Litigation- Post Trial
1st 2nd 3rd 4th
Pleadings // Discovery // Pre-Trial // Trial // Post
§6: The Appeal
A party may appeal the jury’s verdict or any legal
issue, motion or court ruling during the trial.
The party filing the appeal (Appellant) files a brief
that contains a short statement of the facts, issues,
rulings by the trial court, grounds to reverse the
judgment, applicable law and arguments on
Appellant’s behalf.
Appeals court can affirm (agree with) or reverse
(disagree with) the lower court’s decision.
Case 3.1: Ausely v Bishop
FACTS:
Ausley, a certified real estate appraiser, hired
Bryan Bishop as an apprentice.
After Bishop obtained his license, Ausley
proposed renegotiating their contract with a term
for reduced pay.
 Bishop refused and left to open his own appraisal
office.
Ausley made false statements to lenders and
others, including the police, making Bishop appear
to be unethical and criminal.
Finally, Ausley filed suit in North Carolina court
alleging that Biship breached his contract.
The Trial [6]
Verdict.
Criminal case--burden of proof is “beyond a reasonable
doubt” and the verdict (for guilty or acquittal) must be
unanimous. If not, mistrial/hung jury.
Civil Cases—generally, burden of proof is by
“preponderance” of the evidence and a majority of
jurors must agree on verdict. If not, then mistrial/ hung
jury.
Judgment is the Court’s acceptance and
recording of the jury’s verdict.
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§ 5: Post Trial Motions
Once the trial is concluded, a dissatisfied
party may:
5th File a Motion for a New Trial.
Ask that the judge enter a judgment contrary to the
verdict (JNOV) rendered by the jury.
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§7: Enforcing the Judgment
Once a judgment becomes final (i.e.,
subject to no further judicial review) the
defendant is legally required to comply
with its terms.
Defendants who will not voluntarily
comply with a judgment can be
compelled to do so by seizure and sale of
the Defendant’s assets.
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Case 3.1: Ausely v Bishop
FACTS (cont’d)
Bishop filed a counterclaim, charging Ausley with
slander. Ausley filed a motion for summary
judgment, which the court granted. Bishop
appealed.
HELD: FOR BISHOP. REVERSED. Court of
Appeals of North Carolina held that Bishop had
enough proof of his claim for it to go to trial. The
court reversed the lower court’s grant of summary
judgment on this issue and remanded for trial. The
court explained that “[p]laintiff admitted in his
deposition that he made statements that impeached
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defendant in his trade.” 32
 Case 3.2: LeBlanc v. American
Honda Motor Co.
FACTS:
LeBlanc was injured when his snowmobile collided
with an off-road vehicle manufactured by Honda (a
subsidiary of a Japanese corporation).
LeBlanc sued Honda and the driver in a New
Hampshire state court.
LeBlanc’s lawyer, during closing, told the jury the
case was not about “Pearl Harbor or the Japanese
prime minister saying Americans are lazy and
stupid. * * * What this case is about is not
American xenophobia; it’s about corporate greed.”
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Case 3.2: LeBlanc v. American
Honda Motor Co.
FACTS (cont’d)
Jury returned a verdict in favor of LeBlanc.
Honda’s motion for a new trial was denied and
Honda appealed.
Honda argued that LeBlanc’s remarks so tainted
the proceedings as to deprive Honda of a fair trial.
HELD: FOR HONDA. REVERSED.
A new trial is warranted “where counsel attempts
to appeal to the sympathies, passions, and
prejudices of jurors grounded in race or
nationality.”
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