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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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distribution without the prior written consent of McGraw-Hill Education.
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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Chapter 03 - The Judicial Process and Cyber-Procedure
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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Chapter 03 - The Judicial Process and Cyber-Procedure
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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distribution without the prior written consent of McGraw-Hill Education.
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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Chapter 03 - The Judicial Process and Cyber-Procedure
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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Chapter 03 - The Judicial Process and Cyber-Procedure
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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distribution without the prior written consent of McGraw-Hill Education.
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
at
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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Chapter 03 - The Judicial Process and Cyber-Procedure
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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