PA 106 – Unit 2
State and Federal Courts
2
Trial Courts
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“Courts of record”-court reporters.
Opening and closing arguments.
Juries are selected.
Evidence, such as witness testimony, physical
objects, documents, and pictures, is introduced.
 Witnesses are examined and cross-examined.
 Verdicts and Judgments are rendered.
3
Appellate Courts
 Middle level of the court systems.
 Review proceedings conducted in the trial court to
determine whether the trial was according to the
procedural and substantive rules of law.
 Generally, appellate courts will consider questions of
law, but not questions of fact.
4
Supreme Courts
 Also known as courts of last resort.
 The two most fundamental ways to have your case
heard in a supreme court are:
 Appeals of Right.
 By Writ of Certiorari.
 See the U.S. Supreme Court and the Texas Supreme
Court websites.
5
Alternative Dispute Resolution
 Trials are a means of dispute resolution that are very
expensive and sometimes take many months to
resolve.
 There are “alternative dispute resolution” (ADR)
methods to resolve disputes that are inexpensive,
relatively quick and leave more control with the parties
involved.
6
ADR
 ADR describes any procedure or device for
resolving disputes other than the traditional
judicial process.
 Unless court-ordered, there is no record which is an
important factor in commercial litigation due to
trade secrets.
 Most common: negotiation, mediation, arbitration.
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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.
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.
First Step: Consulting an
Attorney
 Generally, the first step in litigation is contacting any
attorney to seek qualified legal advice.
 Types of Attorneys’ Fees (hourly vs. contingent fee).
 Settlement Considerations.
Pre-Trial Procedures
(Stages of Litigation)
 Pleadings.
 Discovery.
 Pre-Trial.
 Trial.
 Post-Trial.
Litigation- Pleadings
1st
2nd
3rd
4th
5th
Pleadings // Discovery // Pre-Trial // Trial // Post
st
1
Stage: The Pleadings
 File Petition/Complaint.
 Court acquires jurisdiction over subject matter and
Plaintiff.
 Facts: What happened.
 Prayer: Court relief.
Complaint
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.
Summons
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.
Pleadings-Answer
Defendant’s Response (Answer):
 States General Denial.
 May Move for Change of Venue.
 May Allege Affirmative Defenses .
 May Counter-Claim against Plaintiff.
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.
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.
AnswerCounter or Cross Claims
A counterclaim is a lawsuit filed by the Defendant(s)
against the Plaintiff, in response to the original
complaint. A cross-claim is against a co-Plaintiff or coDefendant.
Counter Claim
P
VS.
D1
D2
CrossClaim
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).
Litigation- Discovery
1st
2nd
3rd
4th
5th
Pleadings // Discovery // Pre-Trial // Trial // Post
nd
2
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.
 Electronic Discovery.
Litigation- Pre-Trial
1st
2nd
3rd
4th
5th
Pleadings // Discovery // Pre-Trial // Trial // Post
rd
3
Stage: Litigation-Pretrial
 Pre-Trial Conference.
 Mediation-Arbitration.
 Disposition Without Trial.
 Default Judgments.
 Dismissals (With/Without Prejudice).
 Summary Judgment.
 Settlement.
 Pre-Trial Orders (ex:TRO, In Limine).
Pre-Trial Dismissals
and Judgments
 Motion to Dismiss.
 Motion for Judgment on Pleadings.
 Motion for Summary Judgment.
 Accompanied by affidavits. No jury.
Litigation- Trial
1st
2nd
3rd
4th
5th
Pleadings // Discovery // Pre-Trial // Trial // Post
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.
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.
The Trial [3]
 Bench Trial (no jury).
 Jury Selection.
 Voire Dire.
 Challenges/Pick the Jury.
 Impanel Jury.
 Alternate Jurors.
The Trial [4]
 Opening Statements.
 Plaintiff’s Case--Evidence:
 Witnesses- Direct Examination vs. Cross Exam.
 Generally, Hearsay evidence is not admissible.
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.
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.
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.
Litigation- Post Trial
1st
2nd
3rd
4th
5th
Pleadings // Discovery // Pre-Trial // Trial // Post
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.
F.R.C.P. Rule 11
 Every pleading, written motion, and other paper must
be signed by at least one attorney of record in the
attorney's name — or by a party personally if the party
is unrepresented. The paper must state the signer's
address, e-mail address, and telephone number.
Rule 11 (2)
 The attorney must certify that:
 (1) it is not being presented for any improper purpose, such as to
harass, cause unnecessary delay, or needlessly increase the cost of
litigation;
 (2) the claims, defenses, and other legal contentions are warranted by
existing law or by a nonfrivolous argument for extending, modifying, or
reversing existing law or for establishing new law;
 (3) the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery; and
 (4) the denials of factual contentions are warranted on the evidence or,
if specifically so identified, are reasonably based on belief or a lack of
information.
Rule 11(3)
 Sanctions:
 If the court determines that Rule 11(b) has been
violated, the court may impose an appropriate
sanction on any attorney, law firm, or party that
violated the rule or is responsible for the violation.
Absent exceptional circumstances, a law firm must
be held jointly responsible for a violation
committed by its partner, associate, or employee.
Assignment 2
 Assignment: Rule 4 of the
Federal Appellate Rules of ProcedureGo to:
http://www.law.cornell.edu/uscode/html/uscode2
8a/usc_sup_05_28_10_sq3.htmlLocate Rule 4 of
the Federal Appellate Rules of Procedure. Then
answer the following questions.
 What is the time limit within which an appeal
must be filed?
 How can the time limits be extended?