978-0077733735 Chapter 3 Lecture Notes

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Chapter 03 – The Judicial Process and Cyber-Procedure

Chapter 3

The Judicial Process and Cyber-Procedure

I. Key Terms

Abuse of discretion (p. 56) Indictment (p. 74)

Affirmative defense (p. 64) Information (p. 74)

Answer (p. 64) Injunction (p. 68)

Appeal (p. 68) Interrogatories (p. 66)

Appellate jurisdiction (p. 56) Jurisdiction (p. 55)

Arraignment (p. 75) Liability (p. 67)

Case in chief (p. 67) Minimum contacts (p. 57)

Civil litigation (p. 62) Original jurisdiction (p. 55)

Class action (p. 63) Personal jurisdiction (p. 56)

Clearly erroneous standard (p. 56) Plaintiff (p. 62)

Complaint (p. 62) Plenary review (p. 56)

Courts (p. 55) Preliminary hearing (p. 74)

Cross-appeal (p. 56) Prosecutor (p. 74)

Cross-examination (p. 67) Rebuttal (p. 67)

Cyber-jurisdiction (p. 69) Request for admissions (p. 66)

Damages (p. 67) Request for a physical or

Defendant (p. 62) mental examination (p. 66)

Demurrer (p. 63) Request for real evidence (p. 66)

Depositions (p. 65) Service of process (p. 63)

Direct examination (p. 67) Special jurisdiction (p. 56)

Discovery (p. 65) Specific performance (p. 67)

Diversity cases (p. 56) Stream of commerce (p 57)

Electronic/e-jurisdiction (p. 69) Subject matter jurisdiction (p. 56)

Electronically stored information Summary judgment motion (p. 65)

(ESI) (p. 71) Surrebuttal (p. 67)

Equitable remedy (p. 67) Verdict (p. 67)

Federal question (p. 56) Writ of certiorari (p. 60)

Forum shopping (p. 63) Writ of execution (p. 68)

General jurisdiction (p. 56)

II. Learning Objectives

1. Explain the fundamental nature of American courts.

2. Determine when a case can be brought in federal court.

3. Recognize those cases that can be heard by the U.S. Supreme Court.

4. Identify the structure of most state court systems.

5. Define civil litigation.

6. List the most commonly used discovery techniques.

7. Detail the nature of an appeal.

8. Determine the extent of cyber-jurisdiction.

9. Explain the nature of electronically stored information (ESI).

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Chapter 03 – The Judicial Process and Cyber-Procedure

10. Describe the steps in a criminal prosecution.

III. Major Concepts

3-1 The Court System

Courts are judicial tribunals that meet in a regular place and apply the laws in an attempt

to settle disputes fairly. The federal court system is divided into three levels: the district

courts, the courts of appeals, and the U.S. Supreme Court. State systems vary in structure

but often consist of several levels, including lower-level limited jurisdiction trial courts,

higher-level trial courts, intermediate appellate courts, and state supreme courts.

3-2 Civil Procedure

Litigation begins when the plaintiff files a complaint with the appropriate trial court. The

defendant must then be given a copy of the complaint and a summons. During the

pre-answer stage, the defendant may attempt to dismiss the lawsuit by filing certain

pre-answer motions. In the answer stage, the defendant will file an answer, which may

contain affirmative defenses, counterclaims, and/or cross-claims. The defendant at this

time may also file third-party complaints. During the pretrial stage, conferences may be

held, motions may be made, and discovery conducted. The trial includes the opening

statement, each side’s case in chief, the opportunity for rebuttal and surrebuttal, the

closing arguments, and the jury instructions. The jury then renders a verdict. Either party

may appeal the case if that party believes that a legal error was made during the trial that

influenced the verdict unfavorably. If a judgment is not paid, the court may issue a writ of

execution.

3-3 Cyber-Procedure

Cyber-jurisdiction (AKA electronic jurisdiction and e-jurisdiction) is the power of the

court to hear a case based on Internet-related transactions. The Federal Rules of Civil

Procedure now permit federal courts to allow, and at times even require, lawyers to file

court documents electronically. The Federal Rules now refer to cyber-evidence as

electronically stored information (ESI). The rules also now deal with special situations

involving ESI and discovery.

3-4 Criminal Procedure

The steps in a criminal prosecution include the arrest and initial appearance, the

preliminary hearing, the formal charges, the arraignment, and the trial. At the time of the

arrest, the defendant must be informed of his or her rights. Immediately following the

arrest, the defendant is brought before a judge or a magistrate for an initial appearance, at

which time the defendant is again reminded of his or her rights. A preliminary hearing is

also scheduled. A preliminary hearing is a court procedure during which the judge will

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Chapter 03 – The Judicial Process and Cyber-Procedure

decide whether probable cause exists to continue to hold the defendant pending formal

charges. Formal charges against the defendant may be brought either by indictment or by

information. The arraignment is a formal court proceeding, during which the defendant

pleads guilty or not guilty. The trial includes the opening statement, each side’s case, the

closing arguments, and the jury instructions. The jury then renders a verdict.

IV. Outline

I. The Court System (3-1)

A. The Federal Court System

1. The Federal Court System is authorized by Article III of the U.S. Constitution.

2. The federal court system includes the U.S. Supreme Court, the federal courts of

appeal, and the federal district courts.

B. Court Jurisdiction

1. The authority to hear and decide cases is called the court’s jurisdiction.

a. A court of original jurisdiction has the authority to hear a case when it is first

brought to court.

b. Courts having the power to review a case for errors are courts of appellate

jurisdiction.

c. Appellate review for errors of law is referred to as plenary review.

d. The clearly erroneous standard applies when appellate courts review factual

decisions made by a lower court or jury.

e. An abuse of discretion standard applies when appellate courts judge whether a

lower court judge has misused authority.

f. Courts with the power to hear any type of case have general jurisdiction.

g. Courts with the power to hear only certain types of cases have special jurisdiction.

h. Subject matter jurisdiction is the court’s power to hear a particular type of case.

i. Personal jurisdiction is the court’s authority over the parties to a lawsuit.

2. Federal District Courts

a. Each state and territory in the United States has at least one federal district court

known as a U.S. district court.

b. Federal district courts are courts of general jurisdiction.

c. Federal district courts have subject matter jurisdiction over cases that concern a

federal question.

d. Federal district courts have subject matter jurisdiction over cases of diversity

involving lawsuits between citizens of different states; between citizens of a state

or different states and citizens of a foreign nation; and between citizens of a state

and a foreign government as the plaintiff, with an exception allowing suit against

a foreign government as the defendant when damages are sought for acts of

terrorism.

e. Corporations are considered citizens of the state in which they are incorporated

and the state where they have their principal place of business.

f. Diversity cases must involve an amount over $75,000.

g. A court must also have personal jurisdiction over a party.

h. A long-arm statute lists circumstances under which a court can exercise personal

jurisdiction over an out-of-state defendant.

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i. Personal jurisdiction under a state long-arm statute also requires meeting required

minimum contacts with the state or possibly a new standard in product liability

cases known s the “stream of commerce” theory of jurisdiction.

3. U.S. Courts of Appeals

a. There are thirteen U.S. Courts of Appeal within the federal court system.

b. There are three standards of review, plenary, clearly erroneous, and abuse of

discretion.

c. The U.S. Courts of Appeal hear appeals form district courts, the U.S. Tax Court,

and from many administrative agencies.

d. The U.S. Court of Appeals for the Federal Circuit has special jurisdiction over

certain types of cases such as those involving patents.

4. The United States Supreme Court

a. The U.S. Supreme Court is the court of final jurisdiction in cases appealed from

lower federal courts and state supreme courts.

b. It has original jurisdiction in certain cases including those affecting ambassadors

and cases in which a state is a party.

c. The Supreme Court is composed of a chief justice and eight associate justices.

d. Justices are appointed by the president with the consent of the Senate.

e. In many situations, a case will reach the U.S. Supreme Court only if the court

agrees to issue a writ of certiorari.

f. When a federal court hears a case involving federal law or the U.S. Constitution,

it follows federal law; but in diversity cases, state law will likely be followed.

C. State Court Systems

1. State trial courts, known as general jurisdiction courts, have the power to hear any

type of case.

a. Most states have other trial courts that are lower than general jurisdiction courts

and hear only certain types of cases.

b. Many localities have small-claims courts.

2. State court systems provide for a variety of appellate court structures.

3. Some states rely on their supreme court as their only appellate court.

II. Civil Procedure (3-2)

A. Commencement of the Action

1. The filing of the complaint sets forth the names of the parties, the facts from the

plaintiff’s perspective, alleged violations of the defendant, injuries the plaintiff

suffered, and the plaintiff’s request for relief.

2. If the plaintiff wants a jury trial, the complaint must specify as such.

3. In federal court, the complaint must include a statement of jurisdiction.

4. Forum shopping occurs when a plaintiff searches for a jurisdiction with law that is

favorable to its case or when a defendant removes a case filed in state court to federal

court.

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5. A class action is a case in which a representative party files a lawsuit on behalf of all

members of a group of plaintiffs who share a single, similar injury.

6. In order to limit forum shopping in class action lawsuits and to counteract other

abuses, Congress enacted the Class Action Fairness Act (CAFA).

B. Service of Process

1. The complaint is presented to the appropriate court officer.

2. The defendant is served with a copy of the complaint and a summons.

3. Giving the summons and complaint to the defendant is called service of process.

C. The Pre-Answer Stage

1. The time between service and the answer is the pre-answer stage.

2. The defendant has twenty to thirty days to file an answer to the complaint unless an

extension is granted.

3. The defendant may decide to file one or more pre-trial motions requesting that the

court rule on particular issues.

D. The Answer

1. The answer is the defendant’s official response to the complaint.

2. Answers may contain affirmative defenses, counterclaims, cross-claims, and

third-party complaints.

E. The Pretrial Stage

1. The waiting period between the filing of the answer and the trial is the pretrial stage.

2. Some courts require pretrial conferences, generally called case management

conferences.

3. Motions, such as a motion for summary judgment, may be filed during the pretrial

stage.

4. Discovery is conducted during the pretrial stage.

a. Depositions, which are oral statements under oath, may be taken.

b. Interrogatories, written questions, may be issued.

c. Requests for real evidence may be made through, for example, requests for

documents or requests to inspect land.

d. Requests for physical or mental examinations may be made.

e. Requests for admissions may be made.

F. The Civil Trial

1. In a trial by jury, the judge’s role is secondary to the jury’s.

2. The civil jury trial includes jury selection, known as voir dire; opening statements;

the plaintiff’s case in chief; the defendant’s case in chief; the rebuttal and the

surrebuttal; the closing statements; the jury instructions; and the verdict and

judgment.

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Chapter 03 – The Judicial Process and Cyber-Procedure

3. In some cases when a monetary judgment is insufficient to satisfy a plaintiff, the

plaintiff may seek an equitable remedy such as specific performance or an injunction.

G. The Appeal

1. An appeal is the referral of a case to a higher court for review.

2. To succeed in an appeal, it must be shown that some legal error occurred.

H. Execution of the Judgment

1. In a civil case, if the judgment is not paid, the court will order the loser’s property to

be sold by the sheriff to satisfy the judgment.

2. The order by the court ordering a property sale is known as a writ of execution.

3. Through a process called garnishment, execution of a judgment may also be issued

against any income due the loser.

III. Cyber-Procedure (3-3)

A. Cyber-jurisdiction

1. Jurisdiction over out-of-state defendants has been complicated by the electronic age.

2. Doing business via the Internet complicates issues involving the location of a

corporation’s principal place of business.

3. Cyber-jurisdiction, also known as electronic jurisdiction and e-jurisdiction, is the

power of the court to hear a case based on Internet related transactions.

4. Courts have established a sliding scale on the issue of jurisdiction in regard to Internet

transactions.

B. Cyber-filing

1. The Federal Rules of Civil Procedure permit electronic filing.

2. Specific rules on cyber-filing are inconsistent from jurisdiction to jurisdiction.

C. Cyber-discovery

1. Computerized evidence has been officially designated as electronically stored

information (ESI).

2. The Federal Rules of Civil Procedure and most state procedural rules have been

amended to make e-discovery more manageable.

3. In regard to the Discovery Protocols Pilot Project, the Judicial Conference Advisory

4. Committee on Civil Rules (Advisory Committee) has introduced an innovative set of

protocols aimed at simplifying and economizing the discovery process in federal

employment law cases.

5. The protocols of the pilot project apply only certain employment-related lawsuits and

then only to those district courts and judges that agreed to be involved in the project.

6. Patent law cases and the Court of Appeals for the Federal Circuit have also been

targeted for a pilot project.

IV. Criminal Procedure (3-4)

A. The Arrest and Initial Appearance

1. An arrest warrant is issued when the law enforcement agency is convinced that it has

ample evidence of both the crime and the identity of the suspect.

2. At the time of arrest, the defendant must be informed of his or her rights.

a. A principal right of a defendant is the right to counsel.

b. Another principal right of a defendant is the right to remain silent.

3. After arrest, the defendant is brought before a judge or magistrate for an initial

appearance at which time a preliminary hearing is scheduled.

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B. The Preliminary Hearing

1. In the preliminary hearing the judge decides whether probable cause exists to

continue holding the defendant for the crime.

2. If there is probable cause, the case moves on to the next step; if not, the defendant is

set free

C. The Formal Charges

1. An indictment is a set of formal charges against the defendant issued by a grand jury.

2. An information is a set of formal charges against a defendant drawn up and issued by

the prosecutor or district attorney.

3. Some states do not have a grand jury system, and formal charges are brought by

information only.

D. The Arraignment

1. The arraignment is the formal court proceeding during which the defendant pleads

guilty or not guilty.

2. If the defendant enters a guilty plea, a sentence may be imposed.

3. If the defendant enters a non-guilty plea, the case moves on to trial.

E. The Criminal Trial

1. If the defendant requests a jury trial, a jury is selected.

2. In a criminal case, the prosecution must prove beyond a reasonable doubt that the

defendant is guilty as opposed to the preponderance of evidence standard applicable

in civil proceedings.

3. In most states a defendant can be found guilty only by the unanimous agreement of

all the jurors.

V. Background Information

A. Cross-Cultural Notes

1. In India, where 75 percent of the population lives in villages, small courts called

panchayats handle minor civil and criminal matters. Composed of elected officials,

the panchayats hear cases informally (attorneys are not allowed) and serve a role

similar to that of the U.S. justice of the peace.

2. Saudi Arabia operates under Islamic law, or sharia. Trials are not held in public.

Concerns by Amnesty International regarding the country’s arrest, trial, and

punishment system may be found in an article titled “Behind Closed Doors: Unfair

Trials in Saudi Arabia” at http://www.refworld.org/docid/3ae6a98d8.html.

B. Historical Notes

1. Diversity jurisdiction allowing suits between citizens of different states was once

regarded as highly necessary for fear that the courts of a state would heavily favor

its own citizens. Today’s mobility and the national scope of business affairs have

eliminated this problem in large part.

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3. When the Supreme Court was established, it was unclear whether it would have the

power to declare laws unconstitutional. It wasn’t until Chief Justice John Marshall

asserted his authority that the court assumed this role. During Marshall’s tenure

(1801–1835), the Court overturned more than a dozen state statutes.

C. State Variations

1. The National Center for State Courts provides information regarding state court

systems by individual state at

http://www.ncsc.org/Information-and-Resources/Comparing-state-courts.aspx.

2. Under Kansas law, the court may conduct a case management conference with

counsel and any unrepresented parties to a lawsuit within forty-five days of the

defendant’s answer.

D. Quotations

1. Integrity is the key to understanding legal practice. . . . Law’s empire is defined by

attitude, not territory or power process.

— Ronald D. Dworkin, professor of law, New York University

VI. Terms

1. When people say they are going to “go after” someone in court, meaning they are going to

sue someone, they are correctly translating the word sue from its early Latin root word

sequi, which means “to follow” or “to come or go after.”

2. Certiorari is Latin for “to be informed of.”

3. Trial by jury originated with the Saxons. An accused person would be set free if a number

of people would come forward and swear that the accused was innocent. These people

were called juratores, meaning “sworn witnesses” in Latin.

4. There is a courtroom tradition that all present stand up as a judge enters the courtroom.

The bailiff usually calls out, “Oyez! Oyez! or “Hear ye! Hear ye!”

VII. Related Cases

1. Margaret Harmotta was on her way to a bingo game at the Immaculate Conception

Church when she slipped in the snow-covered parking lot and injured herself. She sued

the church, and the church won. She appealed claiming that some of the jurors should

have been disqualified because they had a financial interest in the diocese. In the

appealed suit, Harmotta v. Bender, 411 Pa.Super. 371, 601 A.2d 837 (1992), the court

found in favor of the church, concluding that jurors had only a remote interest in the

diocese, since none was an actual member of the church.

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Chapter 03 – The Judicial Process and Cyber-Procedure

2. After losing money due to an accounting firm’s errors, a branch of the Catholic Church

sued to regain the money. During voir dire, the judge refused to let the accounting firm

ask if prospective jurors had given money to any Catholic church or to the plaintiff

Catholic church. The court reasoned that all Catholics would not be biased, only

prospective jurors who had lost money. Accordingly, the court ruled that the trial judge

correctly disallowed questioning generally about gifts to the Catholic church. Although

the appellate court ruled that the defendant should have been allowed to ask about

contributions to the plaintiff church, the court refused to find reversible error. Passion v.

Touche, Ross & Co., 636 N.E.2d 503 (Ill. 1994).

3. Miranda v. Arizona, 384 U.S. 436 (1966), established a criminal defendant’s right to be

informed of his or her rights. The U.S. Supreme Court has held that the protection of the

public may outweigh the defendant’s rights to be informed. Consequently, statements

designed to secure the safety of an officer or the public may be admissible at trial even

when obtained without Miranda disclosures. For a full discussion of this exception

review “The Public Safety Exception to Miranda” on the website of the F.B.I. at

https://leb.fbi.gov/2011/february/the-public-safety-exception-to-miranda. .

VIII. Teaching Tips and Additional Resources

1. The web site for the federal courts, at http://www.uscourts.gov/Home.aspx .has

extensive information regarding the federal court system.

2. The web site for the U.S. Supreme Court, at http://www.supremecourt.gov/. has

extensive and detailed information regarding the Court including biographies of the

justices that can be accessed through the “About the Court” tab.

3. The website for the U.S. Court of Federal Appeals has extensive information regarding

the court available at http://www.cafc.uscourts.gov/.

4. Information regarding specific federal courts of appeal may be found on the court’s

website. For example, the site for the Ninth Circuit is located at

http://www.ca9.uscourts.gov/. Consider asking students to locate the Internet site for

the federal circuit court in their jurisdiction.

5. Cameras are not unusual in state courts although, with the exception of a pilot project,

they are not allowed in federal courts. Discuss whether live coverage should be

allowed. In conjunction with the discussion, review the article “Why We’re Not Going

to See Cameras in the Courtroom Anytime Soon” from The Washington Post available

https://www.washingtonpost.com/news/the-switch/wp/2014/12/03/why-were-not-goin

g-to-see-cameras-in-the-courtroom-anytime-soon/.

6. As an example of a state appellate court system, go to

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http://www.courts.ca.gov/courtsofappeal.htm, a site dedicated to the state appellate

court system in California.

7. The Washington University School of Law at

http://www.washlaw.edu/subject/civil.procedure.html provides several links to sites

involving civil procedure issues.

8. Ask students to research trial systems of other countries, such as those operating under

Islamic law.

9. Consider having a local judge come to address the class.

10. Judges in the federal system are appointed by the president with the consent of the

Senate for life-long terms. In contrast, most state court judges are elected by the people

and serve for a set term of years. Discuss the pros and cons of electing and appointing

judges. Have students investigate whether judges are elected or appointed in their

home states. Discuss the pros and cons of election versus appointment of judges.

11. Have students research efforts made to provide rights to victims of crime.

Review the federal Crime Victims’ Rights Act available at the website of the Offices of

the United States Attorneys at

http://www.justice.gov/usao/resources/crime-victims-rights-ombudsman/victims-rights-

act.

12. Ask students to pay attention to media coverage of various trial proceedings.

Take a few minutes each class period to share cases being heard.

13. Have students write research papers on one of the members of the current U.S.

Supreme Court. Students should research the justice’s career and the specifics of his or

her appointment, including the president who selected the appointee, other potential

choices at the time, and major issues or controversies surrounding the appointment.

14. Invite professionals such as lawyers, judges, or paralegals to share their legal

knowledge and experience with the class. Encourage students to prepare questions in

advance, particularly ones regarding litigation procedures.

15. Have students go to the local courthouse and find out when a civil trial is set to be

heard. Have them sit through at least a half-day’s worth of the trial and then have them

write a report on what they have observed. Note, an issue may occur in that many

scheduled cases settle shortly before trial. A day in which the judge hears motions

may also be of interest to students.

16. A defendant has the right to a jury trial, but may waive, or give up, this right and have

the judge decide the facts. Ask students under what circumstances they believe a jury,

as opposed to a judge, would be preferable and under what circumstances it would be

preferable to have a judge, as opposed to a jury, decide the facts.

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