Chapter 3 Litigation September 12th 2014 3 3 Pretrial Procedures Procedure for Pretrial Despite can proceed to pretrial stage when o Issues related to subject matter jurisdiction standing and personal jurisdiction are sorted out o Parties have hired counsel to represent them Litigation begins with filing of a complaint by plaintiff o Complaint Initial document that starts the lawsuit by setting forth the plaintiff s claims Complaint ends with a prayer for relief o Prayer for relief Claim by the plaintiff for damages sought from the Plaintiff may seek damages specific performance or a temporary or permanent injunction o Damages Loss suffered by plaintiff typical expressed in terms of defendant money o Specific performance Nonmonetary remedy available in certain cases whereby the defendant is ordered to perform the specific act agreed to in a contract o Injunction Order by a court to a party to do something or to stop doing something o To avoid irreparable harm from the defendant acquiring temporary injunction in the early stages of litigation is made easier by the Courts o Court system have a set of rules to prevent the filing of frivolous suits Complaint is filed with clerk of the court Summons are issued to defendant along with copy of complaint by clerk Summons is sent to process server to effect service on defendant Procedure for Pretrial Once defendant have been served timely response to complaint is important o Failure to reply can lead the plaintiff to ask the court to issue a default judgment against the defendant Default Judgment Entered against a party for misconduct or failure to answer Cases Involving Multiple Plaintiffs Plaintiffs form a class in a class action lawsuit against the defendants o Lead Plaintiffs In a class action suit the representative plaintiff of the case o Class action lawsuits in which a representative plaintiff represents an entire class of similarly situated plaintiffs against the defendant Answer to a Complaint Defendant must file an answer to the complaint within thirty days Answer contains an affirmative defense that the defendant wishes to pursue o Affirmative defense Does not deny the defendant s actions but provides a reason or justification such as self defense Pleadings Complaint answer and any supporting documentation The answer admits o Noncontroversial claims by the plaintiff o Nature of the defendant s relationship with the plaintiff At any point in litigation either party can file motions with the court o Motions are designed to short circuit litigation and lead to an early end to the lawsuit Statute of Limitations and Affidavit Defendant may file a motion to dismiss based on the statute of limitations o If a long period of time has passed since the incident in question and the filing of the lawsuit o Statute of Limitations A defined time limit under which a legal action must commence or be forever barred In support of any motion a party may submit an affidavit o Affidavit Sworn statement in writing made under oath Serves as an effective way for parties to tell their side of the story to the judge during pretrial Discovery Phase Once pleadings are filed litigation moves into discovery phase o Designed to prevent trial by surprise where either side suddenly produce evidence that allows it to win the trial o Most expensive phase During or after discovery parties make a motion for summary judgment o Summary Judgment Judicial order declaring a winner on the merits of a case Types of Discovery Interrogatory written questions posed by a party to another party during discovery Request for production Party can request the other party to produce written communications o Spoliation Destruction of key evidence in a trial Request for admission Set of statemetns posed by one party to another for purposes of having the other party admit or deny the statements to narrow the scope of facts to be tried o Stipulation Agreement made between opposing parties in litigation Deposition Statement by a party or witness made under oath
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