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Similaire à Chapter 8 pleadings civ lit 2nd (20)
Chapter 8 pleadings civ lit 2nd
- 2. Pleadings
Documents filed
With a court
To commence
Or respond to a lawsuit
Must conform to
State or federal Rules of Civil Procedure
Local court rules
Judges’ information sheets
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 2
- 3. Rules of Civil Procedure
Insure that trials are conducted fairly &
produce a just result
Federal, state & local
Address:
Pleading, discovery & trial procedures
Filing deadlines
Document format
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 3
- 4. Statute of Limitations
Time frame within a party must bring a
suit
Fundamental fairness can extend the time
to begin with the discovery (knew or
should have known) of the injury, rather
than the date the injury was received.
May be extended for minors
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 4
- 5. Commencing a Suit
Depending on the jurisdiction, an action
commences with a
Complaint
Writ of Summons
Summons
Petition
Notice to Plead
Cover or Case Designation sheet
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 5
- 6. Notice Pleading
Federal & some state courts
Must give notice of the event & the claims
arising from that event (short & plain
statement)
The basis for the claim & damages will be
more thoroughly identified during
discovery
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 6
- 7. Fact Pleading
Must state
Material fact on which the cause of action or
defense is based
Averments of fraud or mistake
Time, place & items of special damage
Conditions precedent
Jurisdiction
Must attach documents that form the basis
of the claim
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 7
- 8. Notice v. Fact Pleading
Notice pleading requires that enough
information be included to give the
defendant notice of the events & claims
against him
Fact pleading requires that all relevant
facts & claims be included in the
complaint
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 8
- 9. The Summons
A federal summons can be downloaded,
copied & prepared
It advises the defendant
Of the lawsuit
The time within which a response must be
filed
What will happen if there is no response
How to obtain a lawyer
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 9
- 10. Summons Preparation
Completed by the legal team
The clerk of court adds the filing information
Case number
Judge assigned
The return of service form is on the back
The summons & complaint are served, and
the return of service is completed
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 10
- 11. Civil Cover Sheet
Summary page used by data entry
personnel
Names & addresses of the parties
Counsel contact information
Types of claims asserted
Basis of jurisdiction
Class action or related claims?
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 11
- 12. Drafting the Complaint
Caption
Identity of the parties
Jurisdiction & venue of the court
Document title
Docket Number provided by Clerk
Numbered paragraphs
One fact per paragraph is ideal, but difficult
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 12
- 13. Jurisdictional Claim
Identify parties & situations enough to
establish personal jurisdiction
Describe claim to establish subject matter
jurisdiction
Jurisdictional limits on amount in controversy
vary
Courts may be limited in the types of claims
they can hear (juvenile, probate)
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 13
- 14. Elements of
the Cause of Action
Each cause of action appears as a
separate count
Each count need not plead elements
individually in a notice pleading
jurisdiction
Each count must contain all the necessary
elements in fact pleadings
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 14
- 15. Counts
Counts will describe each separate cause
of action
Complaints divided into counts for clarity
Case, if heard by court, will be decided for
each count
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 15
- 16. Damage Allegation
Must claim harm
Personal physical injury
Property damage
Monetary losses
Out-of-pocket expenses
Lost wages
Loss of earning capacity
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 16
- 17. Prayer for Relief
“Wherefore” clause
Related to damages
Asks the court for relief, based upon the
alleged harm
“Wherefore the plaintiff demands judgment against
the defendant in a sum exceeding $75,000 plus
interest, costs, attorney’s fees, and such other relief
as the court deems reasonable.”
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 17
- 18. Unliquidated damages
Unliquidated damages are not calculable
by mathematical calculation (pain and
suffering)
In situations with unliquidated damages,
some court rules will not permit including
a specific amount (example: $12,000,000)
in request
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 18
- 19. Signatures
Attorney certification
Familiar with facts & claims
Based on bona fide basis in law
No improper purpose
Facts have been investigated
Believes the information to be true & accurate
Can be sanctioned for frivolous claims
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 19
- 20. Verification
Client signature
Subject to perjury
Client asserts the truthfulness of the claims
Not required in all jurisdictions
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 20
- 21. Filing Fees
Must be paid with filing
Vary by jurisdictions
May be possible to file & pay online
Indigent parties may seek waiver (in
forma pauperis)
After-hours filing may be possible in some
jurisdictions
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 21
- 22. Electronic Filing
Rules vary by jurisdiction
Must submit materials in format specified
Word
WordPerfect
PDF, etc.
Both parties should consent to electronic
filing where it is an option
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 22
- 23. Service of Process
Insures due process: notice of the suit, an
opportunity to be heard
Generally, service is performed by
An adult (frequently the sheriff)
Not a party
At recipient’s place of business or residence
To an adult
Service is confirmed by affidavit
Right to service can be waived
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 23
- 24. Calculating deadlines
For a federal deadline of 20 days:
S M T W T F S
served Begin 2 3 4
count
5 6 7 8 9 10 11
12 13 14 15 16 17 18
19 Holiday Due
date
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 24
- 25. Amend or
Supplement the Complaint
New information after filing
Correct or add material
Before a responsive pleading, no
permission required
After a responsive pleading, only upon a
motion granted by the court
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 25