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VII. The Civil Trial Process
Civil procedure varies by jurisdiction. The following generalizations merely typify the process. (See Figure
4.2.) [For a vast “catalog” of law on the Internet, see http://www.catalaw.com]
A. Pleadings
Pleadings are the documents by which each party sets his or her initial case before the court. A civil
action begins when the plaintiff files his or her first pleading, which is labeled a complaint. The
complaint specifies the parties to the suit, evidence as to the court’s jurisdiction in the case, a
statement of the facts, and a prayer for relief (a remedy).
The complaint is filed with the clerk of court and a summons is issued, directing the defendant to
appear in court to answer the claims alleged against him or her. The defendant has several options.
He or she may do nothing, but failure to respond may result in a default judgment in favor of the
plaintiff. The defendant may choose to respond by filing a demurrer or a motion to dismiss, the
essence of which is to argue that even if the plaintiff’s recitation of the facts is accurate, a claim on
which relief can be granted has not been stated.
Alternatively, the defendant may file with the court an initial pleading, called an answer, wherein the
defendant enters a denial by setting out his or her version of the facts and law, or in which the
defendant simply concedes the validity of the plaintiff’s position. The answer may also contain an
affirmative defense, such as the statute of limitations or the statute of frauds that would bar the
plaintiff’s claim. The defendant’s answer might include a counterclaim or cross-claim. A counterclaim is
the defendant’s assertion of a claim of action against the plaintiff. A cross-claim is the defendant’s
assertion of a claim of action against a codefendant.
[For a summary of “Famous Trials” in history, see
http://www.law.umkc.edu/faculty/projects/ftrials/ftrials.htm]
Served on Facebook?
After U.S. rapper Trammar Dillard, known as Flo Rida, allegedly failed to appear at a 2011 music
festival in Newcastle, Australia, the festival organizer, Mothership Music, sued him in an Australian
court for breach of contract. The Australian judge gave Mothership Music permission to serve Flo Rida
by Facebook. Flo Rida appealed the ruling, and the Australian appellate court agreed with the
defendant that he had not been properly served. The appellate court noted that the Facebook page
used may not have actually belonged to the defendant; further, the posting may not have come to Flo
Rida’s attention.
B. Motions
As necessary during and after the filing of the pleadings, either party may file motions with the court.
Of special importance is a motion for judgment on the pleadings or a motion for summary judgment. In
a motion for a judgment on the pleadings, either party simply asks the judge to reach a decision based
on the information in the pleadings. In a motion for a summary judgment, the party filing the motion is
claiming that no facts are in dispute. Therefore, the judge may make a ruling about the law without
taking the case to trial.
C. Discovery
Discovery is the primary information-gathering stage in the pretrial process. That information clarifies
the trial issues, promotes pretrial settlements, and helps prevent surprises at the trial, among other
things. Discovery may consist of depositions (recorded, sworn testimony in preparation for trial),
physical and mental examinations, answers to written questions (interrogatories), requests for access
to documents and property to inspect them prior to trial, and admissions (agreement by the parties to
stipulated issues of fact or law prior to trial).
The era of electronic communication and storage has added important new expectations and burdens
to the discovery process by requiring that litigants exchange all relevant electronically stored
information (ESI) during the discovery phase.
D. Pretrial Conference
Either party may request, and many courts require, a pretrial meeting involving the attorneys, the
judge, and occasionally the parties. Usually following discovery, the conference is designed to plan the
course of the trial in the interests of efficiency and justice. The participants seek to define the issues
and settle the dispute in advance of trial. If no settlement is reached, a trial date is set.
E. The Judge and Jury
The federal Constitution and most state constitutions provide for the right to a jury trial in a civil case
(excepting equity actions). At the federal level and in most states, unless one of the parties requests a
jury, the judge alone will hear the case and decide all questions of law and fact. If the case is tried
before a jury, that body will resolve questions of fact, but all questions of law will be resolved by the
judge who will also instruct the jury as to the law governing the case.
Jurors are selected from a jury pool composed of a cross section of the community. A panel is drawn
from that pool. The individuals in that panel are questioned. The questioning process is called voir dire.
After questioning, the attorneys may challenge for cause, arguing to the judge that the individual
cannot exercise the necessary objectivity of judgment. Attorneys are also afforded a limited number of
peremptory challenges, by which the attorney can have a potential juror dismissed without the judge’s
concurrence and without offering a reason.
Facebook the Jury Pool
Social media, such as Facebook, MySpace, and Twitter, can be a valuable source of information to
attorneys as they try to shape the composition of juries. Information that might not be revealed in voir
dire sometimes comes to light online.
Misleading the Jury?
The case that follows examines allegations of trial misconduct by the plaintiff’s attorney in an
apparent effort to prejudice the jury.
Legal Briefcase: Minichiello v. Supper Club 296 A.D.2d 350 (S. Ct. N.Y., App. Div., 1st Dept.
2002)
F. The Trial
The trial begins with opening statements by the attorneys. The plaintiff, bearing the burden of proof,
then presents evidence, which may include both testimony and physical evidence, such as documents
and photos. Those are called exhibits.
The plaintiff’s attorney secures testimony from his or her own witnesses via questioning labeled direct
examination. After the plaintiff’s attorney completes direct examination of a witness, the defense
attorney may question that witness in a process labeled cross-examination. Redirect and recross may
then follow. After all of the plaintiff’s witnesses have been questioned, the plaintiff rests his or her case.
At this stage, the defense may make a motion for a directed verdict, arguing, in essence, that the
plaintiff has offered insufficient evidence to justify relief, so time and expense may be saved by
terminating the trial. The judge considers the motion in the light most favorable to the plaintiff.
At the completion of the defendant’s case, both parties may be permitted to offer rebuttal evidence,
and either party may move for a directed verdict. In most civil cases, a verdict for the plaintiff must be
supported by a preponderance of the evidence (more likely than not). After deliberation, the verdict of
the jury is rendered, and a judgment is entered by the court. [For a company providing a virtual jury in
advance of trial, see http://www.virtualjury.com]
Experts
In this highly technological and scientific era, one of the biggest dilemmas facing judges and juries
is the weight to give to expert testimony.
Legal Briefcase: Nickles v. Schild 617 N.W.2d 659 (S. D. S. Ct. 2000)
G. Post-Trial Motions
The losing party may seek a judgment notwithstanding the verdict (judgment n.o.v) on the grounds
that the jury’s decision was clearly inconsistent with the law or the evidence. Either party may also
move for a new trial. The winning party might do so on the grounds that the remedy provided was
inferior to that warranted by the evidence.
H. Appeals
After the judgment is rendered, either party may appeal the decision to a higher court. The losing party
brings the appeal. The appealing party is the appellant or the petitioner, while the other party is the
appellee or respondent. The appeals court does not hear new evidence. Its decision is based on the
trial record, materials filed by the opposing attorneys, and oral arguments.
The appellate court announces its judgment and ordinarily explains that decision in an accompanying
document labeled an opinion. If no error is found, the lower court decision is affirmed. In finding
prejudicial error, the appellate court may simply reverse (overrule) the lower court. Or the judgment
may be to reverse and remand, wherein the lower court is overruled and the case must be tried again
in accordance with the law as articulated in the appeals court opinion.
Part Three—Criticisms and Alternatives
I. Criticism
A. Too Many Lawyers and Lawsuits?
Many lawsuits are less a search for justice and more a pursuit of big dollars for attorneys, the critics
claim. A large law firm sued an energy industry executive for unpaid legal bills, resulting in a
counterclaim asserting that the firm overbilled as a matter of practice. During discovery, e-mails
between three attorneys at the firm surfaced that included such statements as “That bill shall know no
limits.” The messages may reflect a larger problem with the approaches that law firms have to billing. A
confidential settlement ended the litigation.
II. The Corporate Perspective
The legal system plays an invaluable role in facilitating and stabilizing commercial practice, but for
corporate America the law is also a source of significant expense and abundant frustration. As one expert
explained, dealing with legal responsibilities and problems has become a central ingredient in
management practice.
Pants: Abusing the Legal System?
Washington, DC administrative law judge, Roy Pearson, attracted the attention of journalists from around
the world by suing his neighborhood laundry for $54 million, down from an earlier claim of $67 million,
over the alleged loss of the pants belonging to his $1,000 suit. Owners Soo and Jin Chung of Custom
Cleaners attempted to give Pearson a pair of pants they said were the missing item, but he said the ones
offered were not his. The Chungs won an easy trial victory. The Chung’s dry cleaner went out of business.
Pearson subsequently failed in his bid to be reappointed to his judge’s position. He sued for wrongful
discharge and lost at the federal district court and then appealed to the federal court of appeals where he
also lost.
III. Criticized in America, Embraced Abroad
The United States is not alone in its ongoing debate about whether more or fewer lawyers and lawsuits
are needed.
Japan
In March 2011, there was approximately one attorney for every 4,000 persons in Japan. With
the rise of international mergers, bankruptcy, patents, and other business disputes, in 2002
Japan became concerned with its lawyer shortage. A recent survey found that approximately 25
percent of the Japan Bar Association was admitted between 2007 and 2012.
In 2012, the Ministry of Internal Affairs and Communications determined that there were now too
many lawyers in Japan. It recommended to the Ministry of Justice and the Ministry of Education,
Culture, Sports and Science to reduce the number of law schools and law school graduates.
Practicing Ethics: Private Law for Walmart?
A portion of Walmart’s Ethical Standards Program demands employee welfare throughout its
vast supply chain. Law professor Larry Cata Backer argues that Walmart and other global giants
are effectively legislating their own private law in the form of contract and business relationships
and ethics standards governing product quality, working conditions and similar matters.
Working with the media, nongovernmental organizations (NGOs), consumers, and investors,
Walmart and other multinationals, Backer argues, are beginning to build independent
mechanisms for efficient regulation of economic behavior on a global scale that may lead to
systems of law beyond governments and moderated largely by stakeholders.
A. On the Other Hand—Litigation as a Last Resort
Almost everyone seems to be unhappy about lawyers and lawsuits, but at the same time Americans
expect lawyers and the courts to settle disputes, preserve freedom and justice and correct problems
not satisfactorily addressed by the market, legislatures, and regulators. Americans count on the justice
system to protect pecuniary interests as well as the personal freedom and democracy Americans
prize. The balance of the world is coming to recognize that law and lawyers are prerequisites to
economic stability and progress.
Fewer Trials
A National Center for State Courts study of the state courts in 75 of the most populous counties
revealed that from 1992 to 2005, the number of civil trials decreased by more than 50 percent.
Trials often are an inefficient way of resolving disputes so these numbers may be considered
very good news. On the other hand, trials are visible affirmations of the indispensability of
justice, and they provide the careful reasoning and precedents that identify impermissible
behavior.
Practicing Ethics: Declining Access to Lawyers?
One of the reasons for the declining number of trials, despite increasing disputes, may be
difficulty in affording a lawyer in civil suits. The New York Times and other publications have
reported an increasing number of cases going forward with one of the parties serving as a
“do-it-yourself” lawyer.
B. Reform: Judicial Efficiency
Governments, businesses, lawyers, judges—all are frustrated with the expense and inefficiency of our
overburdened judicial system. Some small businesses are now buying legal services insurance or
prepaid legal services for a flat monthly fee.
Small Claims Courts
Small claims courts, for the most part, resolve relatively minor disputes. Maximum recoveries vary
from place to place but typically range from a few thousand dollars up to $7,500 or so. To prepare
for a small claims case, the key is developing and presenting to the judge as much credible
evidence as possible.
Honda in Small Claims Court
After rejecting a class-action settlement that would have paid Honda Civic hybrid owners $100 to
$200 each and offer some rebates on a new Honda purchase, in 2012 Heather Peters sued Honda
in small claims court and won $9,867.19 in damages after the judge ruled that Honda misled her
into thinking her hybrid could get 50 miles per gallon. Even though she lost on appeal, Peters
prompted other customers to file lawsuits against Honda in small claims courts.
IV. Alternative Dispute Resolution (ADR)
Businesses, in particular, are increasingly looking outside the judicial system for dispute resolution strategies.
Dot-com entrepreneurs are developing interesting new online mechanisms for conveniently addressing
Internet-based disputes. Networks of human mediators, dispute resolution software, and PayPal dispute resolution
are among the online methods of settling problems outside of court. Cybersettle is an online system for resolving
insurance disputes, often of the fender-bender or slip-and-fall variety. [See http://www.cybersettle.com.]
A. What Is Alternative Dispute Resolution?
Any form of negotiation and settlement would constitute an alternative to litigation, but mediation and
arbitration are the most prominent of the substitutes. Given the expense, frustration, and risk of
lawsuits, we are seeing increasing imagination in building other alternative dispute resolution (ADR)
options including private trials and minitrials. [For many ADR links, see http://www.hg.org/adr.html].
B. Mediation
Mediation introduces a neutral third party into the resolution process. Ideally, the parties devise their
own solution, with the mediator as a facilitator, not a decision maker.
C. Arbitration
In arbitration a neutral third party is given the power to determine a binding resolution of the dispute.
Depending on the situation, the resolution may be either a compromise solution or a determination of
the rights of the parties and a win-lose solution. The arbitrator’s decision ordinarily is legally binding
and final, although an increasing but still small number of arbitration decisions are reaching court.
D. Private Trials
A number of states now permit mutually-agreed-on private trials, sometimes labeled “rent-a-judge.”
Critics question the fairness of the private system and wonder if it will further erode faith in public trials,
but the time and money saved can be quite substantial.
E. Mini-Trials
In the mini-trial, each organization presents its version of the case to a panel of senior executives from
each organization. The trial is presided over by a neutral third party who may be expected to issue a
nonbinding opinion as to the likely result were the case to be litigated. The executives then meet to
attempt to negotiate a settlement. Mini-trials are voluntary and nonbinding, but if an agreement is
reached, the parties can formalize it by entering a settlement contract.
F. ADR Assessed
ADR mechanisms generally have been sustained in the courts. ADR—particularly arbitration—is often
the required dispute-resolution mechanism for employee complaints such as discrimination or
harassment. ADR costs less and is resolved more quickly than litigation. ADR is less formal and less
adversarial than the judicial process. Despite those strengths, alternative dispute resolution has some
limitations when compared with litigation.
A 2011 U.S. Supreme Court decision makes arbitration less functional for consumers by allowing
businesses to continue their commonplace practice of requiring arbitration of disputes but forbidding
class action arbitration (and litigation) thus compelling consumers to individually arbitrate alleged
wrongdoing. In that case, Vincent and Liza Concepcion complained that AT & T Mobility charged them
$30.22 in sales tax and other fees for what was advertised as a “free” phone. They sought class-action
status for themselves and others, but the 5–4 Supreme Court ruling denied that possibility and left the
Concepcions and others similarly aggrieved to file individual claims for very small amounts of money.
Legal Briefcase: Lhotka v. Geographic Expeditions, 181 Cal. App. 4th 816 (2010) (Petition for
review denied Lhotka v. Geographic Expeditions, 2010 Cal. LEXIS 3320 [Cal. S. Ct.])
This case examines whether a mandatory arbitration clause in a travel agency contract to climb Mount
Kilimanjaro was unconscionable under California law.
