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Civil Litigation

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Civil Litigation Process Litigation is the process of bringing, maintaining and defending a lawsuit. This process is very difficult, time-consuming, and costly. In addition, the entire process must comply with complex rules and regulations. The pretrial litigation process is divided into a pretrial and trial process. The pretrial litigation process can also be divided into several major steps. These steps include: pleadings, discovery, dismissals and pretrial judgments, and settlement conference. The entire process begins when a party brings a dispute against another party to a court system. The party bringing the dispute or compliant is the plaintiff. The party on the receiving end of the complaint or lawsuit is referred to as the defendant. The paperwork filed with the court to initiate and respond to a lawsuit is called the pleadings. Major parts of the pleadings include the complaint, the answer, the cross-complaint, and the reply. For the plaintiff to initiate a lawsuit, a complaint must be filed with the proper court system. The complaint is a document served to the defendant to initiate the lawsuit. This document must name the parties to the lawsuit, allege the ultimate facts and law violated, and contain a “prayer for relief” for a remedy to be awarded by the court. The length of the complaint will usually depend on the complexity of the case being heard. Once the process of filing a complaint is finished the court will issue a summons, a court order directing the defendant to appear in court and answer the complaint. The court will then serve the summons and the complaint to the defendant via sheriff or another government official. Although it is not recommended, the plaintiff also has the choice to privately deliver the summons and complaint to the defendant. Another popular choice for service of process is the use of a private process server. Once the summons and complaint have been served to the defendant, the defendant must file an answer to the plaintiff’s complaint. Just as the complaint, the answer is filed with the proper court and is served on the plaintiff. In the answer, the defendant will either admit or deny the allegations against him/her. If the defendant admits to the allegations on the complaint a judgment will be entered in the court against the defendant. If the defendant denies all or any allegations against him/her on the complaint the case will proceed. If the defendant does not reply to the complaint in predetermined period, a default judgment will be entered against the defendant into the system. This judgment will assume the defendant’s liability and order the defendant to pay any damages. Furthermore, the answer on the complaint can contain affirmative defenses such as self-defense. If the defendant answering the complaint believes he/she has been injured by the plaintiff, he/she can file a cross-complaint against the plaintiff in addition to the answer. By filing a cross complaint, the defendant who is now called the cross-complainant, sues the plaintiff who is now the cross-defendant for damages or other remedies. If the defendant files a cross-complaint against the plaintiff the plaintiff must file a reply or answer to the cross-complaint. The reply given by the cross-defendant can also include affirmative defenses and must be to the original defendant through the court. In many civil litigation cases, more than one person may have interest in the lawsuit. If this is the case, these persons may intervene and become parties to an existing lawsuit. In some instances there may be several separate lawsuits concerning a similar situation against one defendant. In this case the court will consolidate the cases into one case if it would not cause undue prejudice to the parties. An example of a case which a court may consolidate would be a commercial airplane crash which results in several injuries or deaths. In this case the court would consolidate all the lawsuit stemming from the affected persons against the defendant airplane company or manufacturer. Taking from the above example, the affected persons can only bring lawsuit to the airplane company in a specified amount of time. This limited time period is called the statute of limitations. It establishes the period during which a plaintiff must bring a lawsuit against a defendant. After this period has expired the defendant will lose his or her right to sue. Typically, the statue of limitations will begin to run at the time of the incident in question. Both federal and state governments have set different statute of limitations for different lawsuits. Most statute of limitations last between one and four years. The next step in the litigations process is called discovery. The term refers to a legal process during which each party engages in various activities to discover facts of the case from the other party and witnesses prior to the trial. This is a very important part of the litigation process because it serves several important functions, including preventing surprises, allowing parties to thoroughly prepare from trial, preserving evidence, saving court time, and promoting the settlement of the cases. Because many truths arise during the discovery process, many cases are settled before going to the actual trial. There are four major forms of discovery. They include: depositions, interrogatories, production of documents, and physical and mental examinations. A deposition is referred to as the oral testimony given by a party or witness prior to the trial. The person giving the deposition is referred to as the deponent. Each party involved in the lawsuit is required to give a deposition, if the opposing party calls upon to do so. The witness giving a deposition can do so voluntarily or if the court orders him/her to do so. The deponent is also required to bring any documents that relate to the case which are taken to the office of an attorney. The witness will then be sworn in and asked questions by attorneys representing the opposing parties. The questions and answers are recorded in written form or by video tape by a court reporter. Another form of discovery includes interrogatories. Interrogatories are written questions that one of the parties to a lawsuit presents to the other party. Each party receiving these questions are required to answer the interrogatories in writing within a specified period of time…usually within 60 to 90 days. These answers are usually answered under the guidance of an attorney. Once a party has answered all the question they are required to sign the document containing them under oath. Cases involving complex information on documents such as memorandums, correspondence and company records will require those documents in question to be produced in court during the trial if a party requests it. In some cases though, the documents asked to be produced are too voluminous and cannot be transported to the court. In such cases, the requesting party may be required to examine the documents in question at the other party’s premises. The final form of discovery includes physical and mental examination. In cases requiring this form of discovery, a court has the right to order the party to submit to physical or mental examination to determine the validity or extent of the alleged injuries. This form of discovery is most common in cases involving accidents in which a party is seeking damages for injuries (mental or physical) resulting from the accident. After discoveries have been made, parties can make several types of pretrial motions to a lawsuit to try to dispose of all or part of the lawsuit before the trial. The two types of pretrial motions include motion for judgment on the pleadings and motion for summary judgment. The motion for judgment on the pleadings is a motion that alleges that if all the facts presented in the pleadings are taken as fact, the party making the motion will win the lawsuit when the proper law is applied to these asserted facts. Motion for summary judgment is a motion that asserts that there are no factual disputes to be decided by the jury. In such a case, the judge can apply the proper law to the undisputed facts and decide on the case without the need for a jury decision. These motions are usually supported by affidavits, documents, and deposition testimony. In some cases the court rules will permit the court to direct the attorneys or the parties themselves to appear before the court for a settlement conference or pretrial hearing. The major purpose of this hearing is to facilitate the settlement of a case. This is the last ditch effort for the parties to resolve their differences before going to trial. If the settlement conference does not settle the dispute, the lawsuit will go to trial. According to the Seventh Amendment of the U.S. Constitution, a party to an action at law is guaranteed the right to a jury trial. If either party requests a jury trial the trial will be tried by a jury who are in this case the triers of fact. If both parties wave the right to a jury trial the judge will sit as the trier of fact. Often, each party will submit to the judge a trail brief which contains the support for its side of the case. The trail is divided into many phases which include: jury selection, opening statements, the plaintiff’s case, the defendant’s case, rebuttal and rejoinder, closing arguments, jury instructions, jury deliberation, and entry of judgment. A trial can last a day or years at a time. The jury selection is conducted with a process called voir dire which is a process by which prospective jurors are asked questions by the judge and attorneys to determine whether they would be biased in their decisions. There are usually between 6 and 12 jurors to every case. Once chosen they are impaneled to hear the case and sworn in. In N.C., jurors are paid $12/day for their services. Once the jurors are selected, the trail is ready to start. The trials begin with opening statements which are factual summaries presented by the attorneys of both the plaintiff and defendant at the beginning of the trail. The plaintiff will present first because he/she bears the burden of proof. This is called the plaintiff’s case. The plaintiff’s attorney will call witnesses and ask questions and present documents pertaining to the case. This questioning is called the direct examination. Once the plaintiff’s attorney has completed his/her questioning, the defendant’s attorney can question the same witness in the cross-examination. If the plaintiff needs to further question the witness, he/she can do so in a redirect. Once the plaintiff concludes his/her case the defendant’s case can begin. The defendant must in his/her examination, rebut the plaintiff’s evidence, prove any affirmative defense asserted by the defendant, and prove any allegations contained in the defendant’s cross-complaint. After this process is complete, the defendant’s witnesses are examined in the same way as the plaintiff’s attorney cross-examines the witness. Again, this will be followed by a cross-examination and a redirect if needed. Once the defendant’s case is completed, the plaintiff’s attorney can call witnesses and put forth evidence to rebut the case the defendant has presented. This process is called a rebuttal. To counter the rebuttal, the defendant’s attorney can call additional witnesses and present additional evidence. This process is called the rejoinder. Once both sides have presented their cases the closing arguments will be heard. Each attorney will try to convince the trier of fact to conclude with a decision in favor of their client. When the closing arguments have concluded the judge will charge the jury, which are instructions given by the judge to the jury that informs them of the law to be applied in the case. After receiving the instructions, the jury will retire to a room to deliberate its findings. This process can take just a few minutes or in some cases months. Once the jury has decided on a case they will return before the judge and the parties and present their verdict or decision on the case. This is called entry of judgment. After the verdict has been read the judge, in most cases, will enter judgment to the prevailing party. The judgment passed by the judge will stand as the official decision of the court. In some cases thought, the judge will overturn the verdict presented by the jury if he/she finds bias among the some or all of the jury members. This is called a judgment not withstanding the verdict, or j.n.o.v. Branches of the U.S. Government Because of the weakness of the newly formed federal government, the Constitutional Convention was convened in Philadelphia in May 1787. Its primary purpose was to strengthen the federal government. The result of these great minds convening was the United States Constitution. By 1788 the new constitution had been ratified by all the states. Since then, many amendments including the Bill of Rights have been added to the Constitution. One purpose the U.S. Constitution severed was that it created the three branches of the federal government we know of today…the executive, the legislative, and the judicial branches. The legislative branch of the federal government was established by Article I of the United States Constitution. The legislative branch consists of the Senate and the House of Representatives. Together this bicameral branch is referred to as the Congress. Because of differing views on state representation, the founding fathers elected to have these separates houses of the legislative branch. The Senate consists of two representatives from each state called senators. The number of representatives in the House of Representatives is determined by the population of each state. Currently there are 100 senators and 435 house representatives. Some other roles of the legislative branch include: writing and enacting laws, enacting taxes, authorizing borrowing, setting budgets, and declaring war. The executive branch of the federal government was established by Article II of the United States Constitution. This article provided for the election of a president and vice president. The president is awarded the office not by popular but is selected by the Electoral College. The representatives of the Electoral College are appointed by individual state delegations. The president is the head of the executive branch. Under the doctrine of the separation of powers the president can neither make laws, nor interpret them. Some important roles of the executive branch include: vetoing laws made by the legislative branch, waging wars, appointing judges, and making declarations. The judicial branch of the federal government was established by Article III of the United States Constitution. This article established the Supreme Court and provided for the creation of the federal courts by Congress. There are many purposes filled by the judicial branch. Some of these include: determining which laws to apply for any given cases, determining wether a law is supported by the U.S. Constitution, interpreting the law, determining the disposition of prisoners, and the power to compel testimony and production of evidence if needed in a case.

Arbitration and Mediation Because settling a dispute in the courts can sometimes take years and cost millions of dollars in legal fees and expenses many, including businesses, are turning to other forms of dispute resolutions. These methods are referred to as alternative dispute resolution of ADR. The most common form of alternative dispute resolution is called arbitration. Another form of ADR which is also commonly used is called mediation. There are advantages and disadvantages to using both of these forms of alternative dispute resolution. Arbitration is a legal technique for resolution of disputes outside of the judicial court system. In fact, many states prefer parties resolve their dispute through arbitration. In arbitration, an impartial third party is chosen by the disputing parties to hear and decide the case. This third part is called the arbitrator. Usually, the members of the third party are chose form the American Arbitration Association or the AAA. However, other organizations exist that serve the same purpose. Arbitration clauses are often contained in labor union agreements, franchise agreements, leases, and other commercial contracts. Disputes arising from these and other agreements are then submitted to arbitration. If the clause does not exist in an agreement, parties can enter into a submission agreement. In the submission agreement both parties agree to dispute using arbitration if a dispute is created. There are many advantages of using arbitration over the judicial process. Arbitration is much cheaper, it is much faster, the proceeding and awards are usually kept private, there is usually a greater deal of flexibility in arbitration, and if the parties don’t agree to an award, the arbitrator’s award can be appealed to court. However, there are also many disadvantages to using arbitration. Some of these include: the inability of the arbitrator to enforce certain measure against the awarding parties to make sure they are accountable. And, although they are said to be an impartial third party, many arbitrators usually make decisions on awards according to their personal views. One major disadvantage to arbitration is the fact that in most cases the award given will usually be substantially smaller than awards given under the judicial system. Another popular form of alternative dispute resolution is mediation. Mediation aims to help disputing parties in reaching an agreement amongst themselves. Unlike arbitration, the conflicting parties in a dispute try to reach a settlement. However, a third party is chosen to act as a mediator. A mediator does not make a decision on a case like an arbitrator, but rather acts as a mediator between the conflicting parties; helping each party achieve a shared understand of the dispute and keeping the discussion civil. If the mediator is successful in his/her efforts the parties will reach an agreement and settle outside of court. If the parties do not reach an agreement using a mediator, the dispute can proceed to a trial. Any party under a dispute should always first try to settle outside of the judicial system. But, after studying both arbitration and mediation I believe that mediation is a more preferable form of dispute resolution. Like arbitration, if a settlement is not reached the dispute can always proceed to the judicial system. But unlike arbitration, mediation seems to be more civilized and has a better chance of succeeding. Mediation seems to me as a win-win situation for both parties in dispute because they are personally involved in the settlement rather than have a potentially biased or easily influenced arbitrator award a party.…...

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