INTRODUCTION TO
CIVIL LITIGATION
Chapter One
LEGL 261
Objectives
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Today we will look at
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The differences between civil litigation and
other types of litigation
Where civil litigation law comes from
How the California Court system is
structured
How a case moves through the process
What the paralegal’s role is in the litigation
process.
A lawyer joke…
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The rich, greedy, old man who wanted to take
his money with him when he died…
his doctor, priest and lawyer…..
My check is good for every penny!
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Legally Blond?
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http://www.youtube.com/watch?v=_I_GYgGjxFM
What we call ourselves tells the story….
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Lawyer
Counselor
Attorney
Barrister
Solicitor
Advocate
“liar”?
Attorney
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Champion “at the tournament”
Professional fighters, not with swords
anymore….
Now we fight with words.
How are lawyers paid?
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By the hour…
By the case…
On contingency…
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%33 and 1/3 percent
%40 if trial
%0 if lost
What is “Litigation”?
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Definition: a legal proceeding in a court; a judicial
contest to determine and enforce legal rights. This
may include:
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Interviews of clients and witnesses
Gathering of physical or documentary evidence
Correspondence with opposing parties
Preparation pleadings and court filings
Mediation proceedings
Trials and hearings
Collections or post-trial actions
Litigation is an Adversarial System
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Texas style?
EXAMPLES OF CIVIL CASES
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AUTO ACCIDENT
SLIP AND FALL
MEDICAL MALPRACTICE
BREACH OF CONTRACT
FRAUD
NON-DISCLOSURE OF DEFECTS IN REAL PROPERY
LIBEL OR SLANDER
CIVIL RIGHTS VIOLATIONS
PRODUCTS LIABILITY
EMPLOYMENT DISCRIMINATION
SEXUAL HARRASSMENT
INVASION OF PRIVACY
ASSAULT AND BATTERY
Is the purpose of litigation to get to the
“truth”?
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I wish!
The purpose of the law is to settle arguments
and disputes peacefully and quickly, if
possible.
So what is the Law of the United States?
Impossible question!!!
The Common Law System
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Roots in English law
custom and precedent
cases - decisions by judges
A wall of books….
Supplemented by codes, statutes and
regulations.
Can be “over-ruled”
Sources of American Laws
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So who writes the law?
Lawyers?
The Balance of Powers
The President (the Executive)
The Congress(Senate and House)
The Judiciary (Supreme Court)
Jurisdictions
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From Latin…
Juris = law
Diction = speak
Local, city, county,
state, federal….
So, how many
jurisdictions are there?
Jurisdictions...
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50 states…
plus the territories, like Puerto Rico, Guam..
plus the military…
plus the Indian Reservations
plus the Federal!
So what is the law of the United States?
I am a California Lawyer...
The Legal Team
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Partners
Associates
Managing Partner
Supervising Attorney
Paralegal
Legal Secretary
Law Clerk
Intern
Investigator (usually a contractor)
Role Of The Paralegal in Litigation
Client intake and filtering
 Pre-litigation investigation
 Trial Preparation
 Conducting Trial
 Post Trial motions or appeals
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Ethical Considerations
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Paralegal must work under supervision of
an attorney. Why?
Paralegals cannot give legal advice or
represent a client in court. Why not?
Paralegals must be competent in
performing tasks for clients. Duh! ... ?
Paralegals have a duty to maintain client
information confidential. What does that
mean?
Ethical Considerations
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Communication between an attorney (or paralegal)
and a client is privileged (cannot be revealed to third
parties without client’s permission). Rule 3-100
Paralegal cannot communicate directly with an
adverse party who is represented by counsel. Rule 3320
Must make sure that there are no conflicts of interest
between your firm and the client. Rule 3-310
http://ethics.calbar.ca.gov/Ethics.aspx
Paralegal Representing Parties??
Maybe…
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Social Security Administration
Patent Office
Federal Disability Claims
“Hearing Representative”…Employee of a
Corporation acting in that capacity for
employer, and no one else.
Types of Litigation
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Civil – resolution of disputes between
private parties through the court system.
Criminal - government prosecutes an
action against an individual who has
committed a crime against society.
Administrative – process by which
administrative agencies resolve disputes.
Sources of Law for Civil Litigation
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Statutes - legislative law
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Court Cases - judicial law
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California Code of Civil Procedure
common law or case law
Constitution
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U.S. and California
The Federal Court System
Courts – U.S. District
Courts or special courts
 Intermediate Appeals - U.S.
Courts of Appeal – 13 Circuit
 Final Appeal - U.S. Supreme
Court
 Trial
The State Court System
Court – Superior Court For
the State of California, County of
San Diego
 Court of Intermediate Appeals
– CA Courts of Appeal – 6
Districts
 Final Appeals - CA Supreme
Court – highest court in the state
 Trial
From low to high…
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Small Claims Court
Municipal Court
Superior Court (may be joined with Muni)
State Supreme (highest court)
United States Supreme Court
Other “courts”
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Tax court
Military Courts...
Administrative courts
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worker injury
unemployment
public labor
more…. Specialty courts
Alternatives to court...
Negotiation
 Mediation
 Arbitration
 binding
 non-binding
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Lawsuit… soot, suite, suut?
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suit (n.)
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c.1300, "attendance at court, the company
attending," also their livery or uniform, via AngloFrench siwte, from Old French suitte "attendance,
act of following," from Gallo-Romance *sequita,
fem. of *sequitus, from Latinsecutus, past
participle of sequi "to attend, follow"
(see sequel).
Stages of Litigation
Information gathering
 Pleading
 Discovery and motions
 Trial
 Post-trial proceedings
 Enforcement
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Stages of a Lawsuit
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Injury or disagreement
Demand
Complaint
Answer
Motions and Discovery
Trial
Appeal
Enforcement
Parties To A Civil Lawsuit
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The person or persons who initiate a lawsuit
are called the “plaintiffs.”
The person or persons being sued are called
the “defendants.”
Legally the word “person” can mean a
corporation, business, governmental entity, or
an organization, as well as an individual.
Pleading
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Is that “begging”?
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Well, kind of…
The King and his court
Asking the authorities for help
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pleading (n.)
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late 13c., "the carrying on of a suit at court," verbal noun
from plead (v.). Meaning "supplication, intercession" is
from early 15c.
PLEADINGS
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The first document filed in a civil lawsuit is
called the complaint.
The complaint is filed by the plaintiff(s).
The court will issue a Summons to be served
with the complaint on the defendant(s).
The first documents filed by the parties to a
lawsuit are called the pleadings.
Burden of Proof
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Civil Case
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Preponderance of
evidence
Criminal Case
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Beyond Reasonable
Doubt
Defendant’s Pleadings
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Answer To Complaint
Motion To Strike
Demurrer
Cross-complaint
If the defendant does not respond to the
complaint, a default judgment can be entered
against the defendant at plaintiff’s request.
LEGAL REMEDIES
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Remedies are what the plaintiff wants the
court to order the defendant to do.
Legal remedies are called money damages.
Compensatory Damages
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General Damages
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Pain & suffering
Can’t put a specific amount to it
Special Damages
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Reimbursement for medical or other expenses.
LEGAL REMEDIES
 Punitive
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Damages
Sometimes called exemplary
damages
purpose is to punish the
defendant
EQUITABLE REMEDIES
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An equitable remedy is a remedy that does
not involve money.
Examples of equitable remedies:
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Injunction
Specific performance
Declaratory relief
Replevin
Rescission of a contract
Lady Justice … why?
While you’re on break…
 Legally
Blond?
http://www.youtube.com/watch?v=_I_GYgGjxFM