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Chapter 3
Court Procedures
INTRODUCTION
This chapter continues the opportunity begun in the previous chapter to make students aware of the
functioning of the judicial branch of our government. The previous chapter outlined the theoretical framework of our
court system. This chapter covers the nuts and bolts of the process.
An important step in the judicial process is the application of procedural rules in a case. The goal of this
chapter is to give students an understanding of what happens before, during, and after a civil trial.
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CHAPTER OUTLINE
I. Procedural Rules
Procedural requirements are introduced in the text, principally through a brief discussion of the Federal Rules
of Civil Procedure (FRCP).
A. STAGES OF LITIGATION
B. HIRE AN ATTORNEY
The text outlines what an attorney might tell a client about a lawsuit, including the probability of success,
1. Types of Attorneys’ Fees
An attorney may charge—
• Fixed fees
• Hourly fees
• Contingency fees
ADDITIONAL BACKGROUND—
Who Pays an Attorney’s Fee?
attorney might agree to accept as compensation a percentage—typically, about thirty to forty percent—of
Generally, unless statutorily or contractually authorized, attorneys’ fees are not awardable to a winning
party. Thus, the basic answer is that everyone pays his or her own attorney’s fee. There are exceptions. In
some circumstances (for example, in certain cases involving indigent criminal defendants), the government
pays, win or lose. Fees may be awarded if the losing party acted in bad faith, vexatiously, wantonly, or for
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2. Settlement Considerations
Factors that determine whether to pursue or settle a claim include—
II. Pretrial Procedures
A. THE PLEADINGS
In a civil case, the pleadings inform each party of the other’s claims and specify the issues. The
pleadings consist of a complaint and an answer.
1. The Plaintiff’s Complaint
The complaint (or petition or declaration) is filed with the clerk of the trial court. It contains a
statement alleging jurisdictional facts; a statement of facts entitling the complainant to relief; and a
statement asking for a specific remedy.
a. Service of Process
A copy of the complaint and a summons is served on the party against whom the complaint is
an answer, or default.
b. Method of Service
2. The Defendant’s Response
The defendant’s answer admits or denies the allegations in the complaint and sets out any de-
B. DISMISSALS AND JUDGMENTS BEFORE TRIAL
1. Motion to Dismiss
A defendant’s motion to dismiss may be based on any of several grounds. A motion to dismiss for
CASE SYNOPSIS—
Case 3.1: Espresso Disposition Corp. 1 v. Santana Sales & Marketing Group, Inc.
Espresso Disposition Corp. 1 and Santana Sales & Marketing Group, Inc., entered into an agreement that
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clause was a mistake made at the time the agreement was drafted—an agreement between different parties
had been copied, and by mistake, the venue provision had not been changed from Illinois to Florida. The
court denied Espresso’s motion to dismiss. Espresso appealed.
litigation be subject to a certain forum, then it is wrong for a court to ignore the clause.
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Notes and Questions
to a controversy under the parties’ agreement “shall be the State of Illinois.” This means that the appropriate
What impact will the court’s decision most likely have on the parties to this dispute? Explain. The
effect of the court’s granting Espresso’s motion to dismiss was a ruling that the venue for any action relating
need to actually read and analyze the text * * * , especially where it is to have legal significance.”
How could the parties, particularly the defendant, have avoided this dispute? The parties could
The clear language unequivocally renders the forum selection clause mandatory.”
Did the court grant or deny the appellants’ motion? Why? In this case, the court granted the
ADDITIONAL BACKGROUND—
Motions to Dismiss and Other Pre-Answer Motions
Besides a plaintiff’s failure to state a claim on which relief can be granted, a defendant’s pre–answer
motion to dismiss may be based on the court’s lack of subject matter or personal jurisdiction, improper
venue, insufficiency of process or service of process, and the plaintiff’s failure to join a party needed for a just
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procedural rules or a court order.
entitled to judgment as a matter of law).
Other pre-answer motions include: a motion for a more definite statement (which may be made if a
pleading is so vague or ambiguous that a response cannot reasonably be framed); a motion to strike such
2. Motion for Judgment on the Pleadings
After the pleadings are filed, if no facts are in dispute and only questions of law are at issue, either
party can file a motion for judgment on the pleadings. A trial might be avoided if no facts are in
dispute and only questions of law are at issue.
ADDITIONAL BACKGROUND—
Motions for Judgment on the Pleadings and
Other Motions That May Be Made after the Pleadings Are Closed
example, the text notes that this motion would be appropriate if the facts as shown in the pleadings reveal that
claim on which relief can be granted, which is a pre-answer motion).
A motion for judgment on the pleadings is more akin to a motion for summary judgment than it is to a
motion to dismiss for failure to state a claim on which relief can be granted. The grounds on which motions to
dismiss can be made can be divided into four categories, including challenges to the complaint itself. These
challenges point to defects on the face of a complaint—that is, a plaintiff may actually have a claim, but has
not properly phrased it. A motion for judgment on the pleadings “attack[s] the substantive sufficiency of the
which relief can be granted or to join an indispensable party. At this point, a defendant may also move for
defense to a claim.
Other motions that may be made after the pleadings are closed include the defendant’s motion to
dismiss on the basis of the court’s lack of subject matter jurisdiction, or the plaintiff’s failure to state a claim on
3. Motion for Summary Judgment
Like a motion for judgment on the pleadings, after the pleadings are filed, if no facts are in dispute
and only questions of law are at issue, either party can file a motion for summary judgment. A trial
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CASE SYNOPSIS—
Case 3.2: Lewis v. Twenty-First Century Bean Processing
his termination. The court granted the motion. Lewis appealed.
Twenty-First Century Bean Processing hired Anthony Lewis, a forty-seven-year-old African-American
male, for a warehouse position, subject to a thirty-day probationary period. At the end of the period, Twenty–
First Century fired him. Lewis filed a suit in a federal district court against the employer, alleging discrimination
The U.S. Court of Appeals for the Tenth Circuit affirmed. The evidence presented by Twenty-First Century
in support of the motion for summary judgment refuted Lewis’s claims. Any one of Lewis’s violations of
Twenty-First Century’s policies would have served as a legitimate reason for his termination, and he could not
show that this was a pretext for discrimination.
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Notes and Questions
truthful responses. The party most likely to suffer sanctions in such situations is the deceiving party, not the
party or the court deceived.
Suppose that a defendant is unable to find evidence to support his or her claim but does not
reveal this to the court and instead attempts to delay the proceedings to gain more time in the hope
that something will appear. What could happen to parties in litigation who might be reluctant to be
truthful to the court? Those involved in litigation who might be hesitant to respond to court requests in a less
C. DISCOVERY
To prepare for trial, parties obtain information from each other and from witnesses through the process
of discovery. These devices save time by preserving evidence, narrowing the issues, preventing sur-
prises at trial, and avoiding a trial altogether in some cases.
CASE SYNOPSIS—
Case 3.3: Brothers v. Winstead
Fisheries, LLC, a Mississippi catfish farm. Winstead operated a hatchery for the firm, but with only two
Kilby Brake and its other members, alleging a corporate freeze-out. The defendants filed a counterclaim of
Phillips Brothers, LP, Harry Simmons, and Ray Winstead were the three members of Kilby Brake
theft. From an award to Winstead of more than $1.7 million, the defendants appealed.
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The Mississippi Supreme Court reversed, and remanded the case holding that Kilby Brake was entitled to
discovery regarding Winstead’s outside income—the trial court’s refusal to allow discovery precluded the jury
from finding out what happened to a certain load of fish, and this issue was central to both sides’ theories of
the case.
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Notes and Questions
and paper correspondence could provide proof.
What materials might reveal the information about Winstead’s finances that the defendants want
to know? The defendants sought information about Winstead’s finances. Financial documents of any sort
to this claim.
Discovery rules protect privileged or confidential material from disclosure—a court can limit the scope of
Does the defendants’ request for information regarding Winstead’s finances follow the guidelines
for discovery activity? Yes, the defendants’ request for information regarding Winstead’s finances follows
should be disclosed to Kilby Brake.
1. Discovery Rules
Generally, discovery is allowed regarding any information that is relevant to any party’s claim or
2. Depositions
3. Interrogatories
A deposition is a record of the answers of a party or witness to questions asked by the attorneys of
4. Requests for Admissions
5. Requests for Documents, Objects, and Entry upon Land
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6. Requests for Examinations
7. Electronic Discovery
Information stored electronically, such as e-mail and other computer data, can be the object of a
a. E-Discovery Procedures
The Federal Rules of Civil Procedure deal specifically with the preservation, retrieval, and
production of electronic data.
b. Advantages and Disadvantages
D. PRETRIAL CONFERENCE
After discovery, a pretrial hearing is held to clarify the issues, consider a settlement, and set rules for
trial.
E. THE RIGHT TO A JURY TRIAL
F. JURY SELECTION
If a jury trial is possible and has been requested, the jury is selected. Prospective jurors undergo voir
dire (questioning by the attorneys to determine impartiality).
III. The Trial
A. OPENING STATEMENTS
The trial begins with the attorneys’ opening statements. These statements concern facts that they ex–
pect to prove during the trial.
ENHANCING YOUR LECTURE—
TO TWEET OR NOT TO TWEET
INSIDE THE COURTROOM
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say online could be construed as generating a bias about the case. Additionally, they might reveal
information about a trial before such information becomes public. The same concerns apply to journalists in
the courtroom.
HOW CAN A JUDGE KNOW WHO IS TWEETING?
the judge could sanction the jurors, the case was settled.)
The Federal Judicial Center queried judges about whether they could know if jurors had violated a social
media ban. Almost 80 percent said, no. Someone would have to have access to a juror’s postings and then
inform the court. When former Baltimore Mayor Sheila Dickson was being tried for corruption, five members
WHAT SHOULD BE THE POLICY CONCERNING REPORTERS?
Many judges ban anyone from tweeting or using any type of social media while a trial is in process and
they are in the courtroom. Reporters, in contrast, advocate the use of social media to provide “play–by–play”
events for the public as they unfold. Judges argue that reporters may end up “feverishly” tweeting on their
smartphones and that such concerted action would distract jurors and witnesses. Judges do not want trials to
turn into circuses.
transmittals via social media or photographs. During the trial itself, in contrast, the judge banned live tweets.
digital clock in the front of the courtroom. Reporters are now instructed to sync their phones, iPads, and
A DIFFERENT APPROACH FROM THE U.K.
based communications in open court. He further mentioned that such live communications would enable the
media to produce fair and accurate reports of court proceedings.
be taken inside U.K. courtrooms.
For several years now, journalists in the United Kingdom can legally use Twitter accounts during court
proceedings without requesting permission. The Lord Chief Justice—the most senior U.K. judge—issued
Practice Guidance Notes specifically for the “use of live text-based forms of communications (including
CRITICAL THINKING
Why is it so difficult for judges to effectively prohibit social media communications from the
courtroom? Today, just about everyone can have as many Twitter, LinkedIn, Facebook, Google+, or other
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B. RULES OF EVIDENCE
These rules ensure that evidence presented during a trial is fair and reliable.
1. Evidence Must Be Relevant to the Issues
2. Hearsay Evidence Is Not Admissible
C. EXAMINATION OF WITNESSES AND POTENTIAL MOTIONS
Because the plaintiff has the burden of proving his or her case, the plaintiff’s attorney calls and examines
the first witness. This is direct examination. The defendant’s attorney cross-examines the plaintiff’s wit–
ness, after which there is an opportunity for redirect and recross-examinations.
1. Expert Witnesses
A party can present the testimony of an expert witness—one who, by virtue of education, training,
2. Potential Motion and Judgment
In a jury trial, after the plaintiff’s case is presented, the defendant can move for a directed verdict,
ADDITIONAL BACKGROUND—
Motions for a Directed Verdict and Motions for Summary Judgment
Under the Federal Rules of Civil Procedure, a party may move for a directed verdict: (a) after his or her
opponent’s opening statement, (b) at the conclusion of the opponent’s case, or (c) at the close of all the
evidence. Basically, a directed verdict is proper if the party with the burden of proof has presented no or
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A motion for a directed verdict is a procedural device available in both civil and criminal proceedings in
A motion for summary judgment is a procedural device available only in civil proceedings. Either side
may move for summary judgment before the trial on any or all of the issues—the defendant at any time (for
3. Defendant’s Evidence
The defendant’s attorney presents the evidence and witnesses for the defendant, after which there
D. CLOSING ARGUMENTS, JURY INSTRUCTIONS, AND VERDICT
After both sides have rested, the attorneys present their closing arguments.
1. Jury Instructions
2. Verdict
IV. Posttrial Motions
After the jury has rendered its verdict, either party may make a posttrial motion. The prevailing party usually
files a motion for a judgment in accordance with the verdict.
A. MOTION FOR A NEW TRIAL
The non-prevailing party frequently files a motion for a new trial (which may be granted on the ground
B. MOTION FOR JUDGMENT N.O.V.
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V. The Appeal
A. FILING THE APPEAL
To appeal, the appellant files the record on appeal, which contains the pleadings, a trial transcript,
B. APPELLATE REVIEW
C. HIGHER APPELLATE COURTS
If this court is an intermediate appellate court, the losing party can file a petition for leave to appeal to a
VI. Enforcing the Judgment
A judgment may not be enforceable because a defendant may not have sufficient assets to pay it. There are,
however, options available to a party to enforce a judgment. Those discussed include the collection of money
or the transfer or property to satisfy an award of damages.
TEACHING SUGGESTIONS
defined steps or a less formal process? What if the decision reached in the less formal process was
1. To impress on students one of the reasons for the legal system’s observance of procedural technicalities,
2. Emphasize the factors—economic and non-economic—in deciding whether or not to pursue legal action.
Are they prepared to pay for going to court? Engaging in legal action can be expensive. A good attorney
may charge as much as $300 an hour, or more, plus expenses, and more for trial work. Do they have the
3. What do your students think that jurors discuss when they retire to consider a verdict? What
should they discuss? Research indicates that discussion in the jury room focuses primarily on what
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cases, a jury is more likely to acquit a defendant than a judge is.
4. All students have different requirements in regards to the amount of study time that they need to prepare
for a class or an exam. Everyone faces the same temptation: putting off until tomorrow what should be done
Cyberlaw Link
Many jurisdictions have implemented online filing systems, and some have set up cyber courts in which
part, or all, of a case may be presented online. What issues are likely to occur in these circumstances?
DISCUSSION QUESTIONS
1. What are the first steps in bringing a legal action? A complaint (or petition or declaration) is filed with the
2. What are the defendant’s possible responses? The defendant files a motion to dismiss the complaint,
3. What are the contexts in which pretrial motions may be filed, and what are those motions? If the
pleadings (the complaint and the answer) reveal no facts in dispute and only questions of law at issue, either party
4. What is discovery? Discovery is the process through which parties prepare for trial by obtaining information
from each other and from witnesses. What devices are used to obtain this information? Discovery can involve
5. What are the advantages of discovery? Discovery saves time by preserving evidence, narrowing the
6. How might a large corporation defend against allegations that it intentionally failed to preserve
electronic data that a party is attempting to review as part of a discovery request? A corporation might defend
7. What takes place at a pretrial conference? A pretrial conference is an informal discussion to plan the
course of a trial. The purpose of this conference is to explore the possibility of resolving the case and, if a settlement
8. Briefly, what are the steps in the course of a trial? If the right to a jury trial has been requested, the jury is
selected. Prospective jurors undergo voir dire. Once a jury is chosen, the trial begins with the parties’ opening state–
9. Who can appeal from a trial court’s decision? Either party—the party against whom the judgment of the
10. What is the primary consideration in deciding whether to settle a dispute or take the dispute to court?
A client’s decision as to how much money he or she can afford to invest in the resolution of a particular legal problem
lower amount.
ACTIVITY AND RESEARCH ASSIGNMENT
Ask your students to visit a court, observe the proceedings, and report their observations. Ask them to find
out how long it might be before a petition filed in the court would be granted a hearing (that is, how clogged is the
court’s calendar) and to what any delay might be attributed.
EXPLANATION OF A SELECTED FOOTNOTE IN THE TEXT
Footnote 10: Yvette Downey called Allegiance Pest Control about bugs in her home. Edward Gordinier, a
licensed, experienced exterminator, found an infestation of bed bugs. He identified the source to be bedroom furniture
that Downey had bought from Bob’s Discount Furniture Holdings, Inc. Bob’s retrieved the furniture and refunded the
price. Downey and her daughter Ashley filed a suit in a federal district court against Bob’s to recover more. The
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In Downey v. Bob’s Discount Furniture Holdings, Inc., the U.S. Court of Appeals for the First Circuit
If Gordinier were not licensed or experienced, would his testimony be admissible? Possibly, but his
Hearsay is literally what a witness says he or she heard another person say. Suppose Gordinier could
testify only that Downey told him the bugs came from the bedroon set. What makes the admissibility of such
evidence potentially unethical? Hearsay is inadmissible as evidence in a suit when it is offered to prove the truth of
Why can only an expert testify about the source of a bedbug infestation? Only experts can testify about
their opinions or conclusions. Ordinary witnesses are confined to testifying about the facts of a case—that is, what
Is it fair to require plaintiffs who hire expert witnesses to pay for and submit written reports that
specify what the experts will say at trial? Why or why not? Yes, it is fair that plaintiffs have to pay for and
ADDITIONAL CASES ADDRESSING THIS ISSUE —
Expert Testimony
Cases considering the written report requirement for expert testimony include the following.
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not reviewed during the course of treatment).
• Banister v. Burton, __ F.3d __ (7th Cir. 2011) (city was not required to file expert witness report before
having treating emergency room physician testify as to whether shooting victim had the physical ability to
throw something or crawl after being shot, in shooting victim’s action against police officers and city).
individuals who are employed by a party and whose duties do not regularly involve giving expert testimony).
scope of treatment, the physician must file an expert report).