Tort Law For Paralegals CH01

Chapter 1.
An Introduction to Tort Law

 Chapter Objectives:
 Explain the foundations of tort law
 Show the distinction between tort law and
other branches of law
 Describe the differences between tort law
and criminal law
 Explain the basic steps involved in a civil
trial
 Describe the basic court system, including
appellate court structure
Tort Law for Paralegals, Fifth Edition

(c) 2016 by Neal R. Bevans
Chapter 1: Introduction to
Torts
 The term tort refers to any case involving
a physical, financial or emotional injury.
Many states have gradually phased out
this term, replacing it with the more
general term “civil injury.”

“Can I sue?”
 has the plaintiff suffered a legal wrong

for which he can receive damages?

Torts are Legal Wrongs
 A tort is a legal wrong or legal injury

that entitles the victim to compensation.

The Basis of a Lawsuit Is a
Cause of Action
 A legal injury on which a lawsuit can be
based
 The basis of the cause of action is the
other person’s negligence.

Tort Law vs. Criminal Law
 Who brings the case?

 A torts case is brought by the individual
who has suffered some legally
recognized wrong.

Prosecutors Bring Criminal
Cases
 Prosecutors are the representatives of
the government and seek criminal
indictments against people who break
the law. The prosecutor does not
represent the victims; the prosecutor
represents society.

Who Brings the Case?
 When a person brings a civil suit, he or

she is called a “plaintiff.”
 When the government brings a criminal
case, it is usually referred to as “the
state,” or the “the people.”

The Parties
 The person being sued is called the

“defendant.”
 This is the same term used for the
person accused of a crime.

The Pleadings
 In a civil case, the plaintiff files a

“complaint.”
 A criminal case usually begins with a
warrant, followed by an indictment
issued by a grand jury.

Civil and Criminal Cases
Operate Independently of One
Another
 A civil suit can be brought before, during
or after a criminal case.
 One reason why these two cases can
proceed independently of one another is
that the burden of proof is different in
both cases.

Proof in a Civil Case Is
Preponderance of Evidence
 The plaintiff has to prove that his

allegations are ‘more likely than not’ true

Proof in a Criminal Case
 In a criminal case, the government must

prove its case ‘beyond a reasonable
doubt.’

Terms are Different
 At the end of a civil case, if the jury

decides that the defendant should pay
damages to the plaintiff, the defendant is
held to be liable.
 At the end of a criminal case, if the jury
decides that the government has proven
its case against the defendant, the
defendant is guilty.

Tort Law Compared to
Other Areas of Law

Civil Law and Tort Law
 People who are parties to a contract

have a relationship with one another and
it is that relationship that gives rise to the
suit.
 In a torts case, on the other hand, there
is usually no requirement of relationship.

Patent Law
 Deals with intellectual property rights

such as copyrights, trademarks,
permissions, etc.

The Different Kinds of Torts
 Just as there are various kinds of crimes,

there are various kinds of torts.

Tort Law Covers Areas as
Diverse As:
 Personal injury cases

 Product liability cases
 Strict liability
 Defamation
 Business Torts and misrepresentation
 Medical Malpractice

A Short History of Tort Law
 Tort law has been developing for

thousands of years.
 In more recent times, tort law has
undergone drastic changes.

An Eye for an Eye
 Under this principle, if a person

intentionally cut off another person’s
hand, the injured man would be entitled
to require amputation of the offender’s
hand.

Problems with ‘An Eye for an
Eye’
 Did not promote a harmonious
community.
 Did not compensate the victim for his
loss.

Money for an Eye
 Under this system, the various parts of a

person’s body were given monetary
value and damage (or loss of use) of any
of these parts would require a monetary
payment by the offender.

Money for Injuries
 A modified form of compensation for

injury is the centerpiece of the U.S. civil
justice system.

Worker’s Compensation
 Worker’s compensation statutes create a

schedule of monetary payments for the
partial or complete loss of various parts
of the body.

The Development of Tort Law
in the United States
 Tort law was unsophisticated and
relatively undeveloped in the U.S. for
many years.

The Development of Tort Law
in the United States
 Early legal treatises either neglect it
entirely, or mention tort law only as a
minor consideration.

The Industrial Revolution
 The Industrial Revolution helped to

precipitate important changes in tort law.

The Industrial Revolution
 Early court decisions were favorable to

industry, but that view gradually changed
over time.

Bringing a Tort Case
 A plaintiff brings a civil case

 The defendant is the person sued.

Bringing a Tort Case
 Tort cases involve a wide variety of

issues, including:
 Interacting with clients
 Researching law
 Investigating the facts of a case

Investigating the Cause of
Action: Rule 11
 Not only is investigating a claim prior to
filing a lawsuit a good idea, the rules of
civil procedure may require it.

Investigating the Cause of
Action: Rule 11
 Rule 11 of the Federal Rules of Civil
Procedure (a rule that is closely followed
by most states) requires that a
reasonable inquiry be made into the
factual basis of the lawsuit before a
complaint is filed.

Litigation Chart
 This chart shows all of the essential

elements of the lawsuit.

Litigation Chart
 Obviously the litigation chart will look

different depending on which side
prepares it.

Sources of Proof
 A witness will testify either through

deposition or on the witness stand about
the facts of the case.

Sources of Proof
 Exhibits will be used to bolster or support

this evidence.

Filing a Complaint
 Once the investigation is complete,

the next step in a civil suit is drafting the
complaint and serving it on the
defendant.

The Answer
 The document that the defendant serves

on the plaintiff, outlining his defenses
and any claims he may have against the
plaintiff

Discovery in Civil Cases
 Once the pleadings have been filed and

served on the opposing parties, the case
moves into a new phase: discovery.
 During the discovery phase, both sides
are encouraged to learn as much about
the claim in the case as possible.

Discovery
Parties may do any or all of the following:

 Issue interrogatories
 Depose witnesses
 Request the production of documents
 Request that the other side admit to

certain facts
 Request a physical and/or mental
examination of a party

The Trial of a Tort Case
 Civil trials and criminal trials proceed in

much the same way.

Jury Selection
 The parties to a civil case select a jury

from a panel of citizens who have been
summoned to the court for jury duty.

Jury Selection
 This panel, also called the ‘venire’ is

filled with people who are citizens of the
county or state.
 These people come from all walks of life
and all types of backgrounds.

Persons Not Permitted to
Serve on Juries
 Non residents
 Non citizens
 Convicted felons

Voir Dire
 A French phrase that means “look,

speak.”
 Another term for jury selection

Voir Dire
 The process of questioning a juror to

discover bias or prejudice and would
make an acceptable juror to hear a case.

Opening Statement
 In an opening statement, the attorneys

for the plaintiff and the defendant are
permitted to address the jury and explain
their basic positions in the case.

Presentation of the Plaintiff’s
Case
 The plaintiff must prove the allegations
he has raised in his complaint.

Presentation of the Plaintiff’s
Case
 Proof comes in the form of witness
testimony and physical exhibits.

Direct Examination
 The attorney calls witnesses to the stand

and asks them questions under oath.

Cross-Examination
 The purpose of cross-examination is

very different from direct examination.

Cross-Examination
 In cross-examination, the opposing

attorney will often attempt to show that
the witness has a bias for the other party
or that the evidence could be interpreted
in some other way, etc.

Motion for Directed Verdict
 When the plaintiff rests his case, the

defendant’s attorney will present a
motion to the judge that the plaintiff has
failed to prove his case.

The Defense Case
 The case for the defense closely

resembles the presentation of the
plaintiff’s case.

Closing Argument
 A closing argument resembles an

opening statement, but only superficially.

Closing Argument
 The attorneys speak directly to the

jurors, explaining what they believe the
evidence in the case proved.

Closing Argument
 Unlike an opening statement, attorneys

are permitted to draw conclusions,
appeal to the jurors’ emotions or argue
the consequences to the community of a
particular verdict.

Jury Charge
 The Judge’s instruction to the jurors

about how they should deliberate and
what law they should take into account.

The Verdict
 The jurors’ decision is the verdict.

 If the jury decides that the defendant
should win, the verdict will be “we, the
jury, find for the defendant.”

The Verdict
 If they decide that the plaintiff should

win, the verdict will be “we, the jury, find
for the plaintiff.”

What is Alternative Dispute
Resolution?
 Alternative dispute resolution, or ADR, is
shorthand for any of a variety of non-trial
methods to resolve differences in civil
cases.
 Among these methods are arbitration
and mediation.

Appeals
 Appellate courts are courts of limited

jurisdiction, meaning that they can only
address certain issues and make certain,
limited rulings.

Appeals
 Appellate courts do not hear witness

testimony or consider evidence.

Appeals
 In almost all cases, an appellate court is

limited to three possible decisions on an
appeal; the court can:
 Affirm
 Reverse
 Remand

Affirm
 The appellate court agrees with the

verdict, or some ruling, entered in the
trial and votes to keep that decision in
place.

Reverse
 To reverse a decision is to set it aside;

an appellate court disagrees with the
verdict, or some ruling, in the trial, and
overturns that decision.

Remand
 The appellate court requires additional

information or an evidentiary hearing; it
cannot conduct such a hearing itself, so
it sends the case back to the trial court
for the hearing, and then considers the
appeal based on that hearing.

The Importance of Case Law
 There are several different kinds of law.

 Case law refers to the body of judicial

decisions stretching back for centuries.

 An understanding of judicial
interpretations, or case law, is critically
important to a legal professional.

How is Case Law Created?
 When a party loses at trial he or she will

often appeal that loss to an appellate
court.
 That court’s ruling on the appeal creates
case law.

Stare Decisis
 Stare decisis is the Latin term for “stand

by decided cases.”
 If there is a prior decision by a court that
dealt with this same issue, then this
court will rule the same way as that prior
court

Stare Decisis
 The principle that courts will reach

similar results as prior cases involving
similar facts and legal issues.

Cert.
 Most state Supreme Courts have the

requirement of certiorari, or cert.

Cert.
 The power of a court to decide which

cases it will hear and which it will not.

Court System
Supreme Court
Appellate Court


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Chapter 1.

An Introduction to Tort Law

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 has the plaintiff suffered a legal wrong

Tort Law for Paralegals, Fifth Edition

 A tort is a legal wrong or legal injury

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 Who brings the case?

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 When a person brings a civil suit, he or

Tort Law for Paralegals, Fifth Edition

 The person being sued is called the

Tort Law for Paralegals, Fifth Edition

 In a civil case, the plaintiff files a

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 The plaintiff has to prove that his

Tort Law for Paralegals, Fifth Edition

 In a criminal case, the government must

Tort Law for Paralegals, Fifth Edition

 At the end of a civil case, if the jury

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 People who are parties to a contract

Tort Law for Paralegals, Fifth Edition

 Deals with intellectual property rights

Tort Law for Paralegals, Fifth Edition

 Just as there are various kinds of crimes,

Tort Law for Paralegals, Fifth Edition

 Personal injury cases

Tort Law for Paralegals, Fifth Edition

 Tort law has been developing for

Tort Law for Paralegals, Fifth Edition

 Under this principle, if a person

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 Under this system, the various parts of a

Tort Law for Paralegals, Fifth Edition

 A modified form of compensation for

Tort Law for Paralegals, Fifth Edition

 Worker’s compensation statutes create a

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 The Industrial Revolution helped to

Tort Law for Paralegals, Fifth Edition

 Early court decisions were favorable to

Tort Law for Paralegals, Fifth Edition

 A plaintiff brings a civil case

Tort Law for Paralegals, Fifth Edition

 Tort cases involve a wide variety of

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 This chart shows all of the essential