Chapter 3

Court Procedures
 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”).
• The American Court system follows
procedural rules that ensure due
process.
 §1: Procedural Rules
Court systems developed around the
common law concept of “due process”
which requires adequate notice and a fair
and impartial hearing.
For example, all federal trials are
governed by the Federal Rules of Civil
Procedure and Federal Rules of
Evidence.
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 §2: Consulting an Attorney
Generally, the first step in litigation is
contacting any attorney to seek qualified
legal advice.
Legal Fees (hourly vs. contingent fee).
Settlement Considerations.

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 §3: Pre-Trial Procedures
(Stages of Litigation)
Pleadings.
Discovery.
Pre-Trial.
Trial.
Post-Trial.

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 Litigation- Pleadings

1st 2nd 3rd 4th 5th

Pleadings // Discovery // Pre-Trial // Trial // Post

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 1 Stage:st

Pleadings-Complaint
Prepare Pleadings
File Petition/Complaint.
• Court acquires jurisdiction over subject matter and
Plaintiff.
• Facts: what happened.
• Prayer: Court relief.

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 Pleadings-Service
Defendant served with Complaint and
Summons.
Court acquires Personal Jurisdiction over
Defendant (person or corporation).
Corporate Defendants served via Registered
Agent.
If the Defendant is out-of-state, Court can
acquire jurisdiction by “long-arm” statutes.

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 Pleadings-Answer
The Answer is the Defendant’s response
to the allegations stated in the Plaintiff’s
Complaint.
In the Answer, the Defendant must
specifically admit or deny each allegation
in the Complaint.

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 Pleadings-Answer
Defendant’s Answer:
States General Denial.
Move for Change of Venue.
Allege Affirmative Defenses.
Counter Claim against Plaintiff.

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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.

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Answer- Affirmative Defense
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-
Counter or Cross Claims
A counterclaim is a lawsuit filed by the
Defendant against the Plaintiff, in response
to the original complaint. A cross-claim is
against a co-Plaintiff or co-Defendant.

Counter-
Claim D1 Cross-
Claim
P VS. D2
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 Answer-Motion to Dismiss
Defendant can move the Court to dismiss
the Action for various reasons, such as:
The Court lacks jurisdiction.
The Plaintiff has failed to make all of the
allegations, in his Complaint, that the law
requires (i.e., the plaintiff has failed to state a
cause of action).

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 Pleadings-Answer
Move to Dismiss.
Motion for Judgment on Pleadings.
Motion for Summary Judgment.

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 Litigation- Discovery

1st 2nd 3rd 4th 5th

Pleadings // Discovery // Pre-Trial // Trial // Post

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 2nd Stage: Discovery
Discovery is the process by which parties
obtain information from the opposing
party prior to trial.
Depositions & Interrogatories.
Requests for Admissions.
Requests for Production Of Documents, Object
and Entry.

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 Litigation- Pre-Trial

1st 2nd 3rd 4th 5th

Pleadings // Discovery // Pre-Trial // Trial // Post

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 3 Stage:
rd

Litigation-Pretrial
Mediation-Arbitration.
Disposition Without Trial.
Default Judgments.
Dismissals (With/Without Prejudice).
Summary Judgment.
Settlement.
Pre-Trial Orders (ex:TRO, In Limine).

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 Litigation- Trial

1st 2nd 3rd 4th 5th

Pleadings // Discovery // Pre-Trial // Trial // Post

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 §4: The Trial
Trial is fundamentally an evidence
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.

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 The Trial [2]

The Defendant will “object” to Plaintiff’s

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]
Bench Trial (no jury).
Jury Selection.
Voire Dire.
Challenges/Pick the Jury.
Impanel Jury.
Alternate Jurors.

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 The Trial [4]
Opening Statements.
Plaintiff’s Case--Evidence:
Witnesses- Direct examination vs. Cross X.
Admissibility of evidence decided by judge.
Parties object to admission of evidence and
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.

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 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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 Litigation- Post Trial

1st 2nd 3rd 4th 5th

Pleadings // Discovery // Pre-Trial // Trial // Post

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 § 5: Post Trial Motions
Once the trial is concluded, a dissatisfied
party may:
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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 §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.

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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:
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.

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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 defendant in his trade.”

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 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 ap­
peal to the sympathies, passions, and prejudices of
jurors grounded in race or nationality.”

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