Clarkson14e PPT ch03

BUSINESS LAW
TEXT AND CASES

Fourteenth Edition
CLARKSON MILLER CROSS 

 

CHAPTER 3: COURT
PROCEDURES
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
§1: PROCEDURAL RULES (1 OF 4)
 Stages of Litigation:
 Pretrial.
 Trial.
 Posttrial.
2
PROCEDURAL RULES (2 OF 4)
3
 Hire an Attorney: An attorney may
charge one or more of the following
fees for service.
 Fixed Fee.
 Hourly Fee.
 Contingency Fee.
4
 Settlement Considerations: The

amount of resources an attorney
will spend on a given case is
affected by:
 The time and funds of the client.
 The defendant’s ability to pay the damages
sought.
5
§ 2: PRETRIAL PROCEDURES (1 OF 34)
 Pretrial litigation process consists of

filing the pleadings, gathering of
evidence (called discovery), and
completing other procedures such
as jury selection.
6
PRETRIAL PROCEDURES (2 OF 34)
1st 2nd 3rd 4th

Pleadings // Discovery // Conference // Jury
7
 The Pleadings: Formal statements made

by the plaintiff and the defendant in a
lawsuit that detail the facts, allegations,
and defenses involved in the litigation.
8
 The plaintiff’s complaint contains

statements or allegations concerning
the following:
 Jurisdiction.
 Legal theory.
 Remedy.
 The defendant must be formally notified

of the lawsuit (service of process).
 The plaintiff must deliver—or serve—a
copy of the complaint and a summons

to the defendant.
11
 A court may not exercise jurisdiction

over a defendant until it has proof that
the defendant was properly served.
 If the defendant does not answer within
the time allotted by the applicable rules,

the plaintiff may seek a default
judgment.
12
 Service of
Process:
 Plaintiff serves
defendant with
complaint and
summons.
 Default judgment for
plaintiff, if defendant
does not answer.
13
 Acceptable Means of Service of Process:
 An individual defendant may be served at his
residence or his principal place of business.
 A corporate defendant may be served by
serving an officer or registered agent,
designated for the purpose of receiving
service.
 A partnership defendant may be served by
serving any (general) partner.
14
 The Federal Rules of Civil Procedure

permit—and even encourage—waiving
formal service of process.
15
 The answer is the defendant’s
response to the allegations stated in
the plaintiff’s complaint.
 In the answer, the defendant must
specifically admit or deny each allegation in
the complaint.
16
 Defendant’s Response:
 Affirmative Defense: Burden is on
defendant to introduce proof.
 Counterclaims: Defendant sues plaintiff, and
the plaintiff answers by filing a reply.
17
 Dismissals and Judgments before
Trial:
 Motion: A procedural request submitted to
the court by an attorney on behalf of her or
his client.
 Pretrial motions include the motion to
dismiss, the motion for judgment on the
pleadings, and the motion for summary
judgment.
18
 Motion to Dismiss: A motion
(normally filed by the defendant) that
asks the court to dismiss the case for
a specified reason, such as lack of
personal jurisdiction or failure to
state a claim.
19
 Motion for Judgment on the
Pleadings: A motion by either party
asking the court to enter judgment in
his or her favor based on the
pleadings because there are no facts
in dispute.
20
 Motion for Summary Judgment: A
motion asking the court to enter a
judgment in his or her favor without
a trial.
 CASE ANALYSIS 3.1 ESPRESSO DISPOSITION
CORP. 1 V. SANTANA SALES & MARKETING
GROUP, INC. (2013).
21
22
1st 2nd 3rd 4th

23
 Discovery: The process of obtaining
information from the opposing party
or from witnesses prior to trial.
 Discovery Rules: Generally, discovery
is allowed regarding any matter that
is relevant to the claim or defense of
any party.
 CASE 3.3 BROTHERS v. WINSTEAD (2014).
24
 Discovery can involve:
 Depositions.
 Interrogatories.
 Requests for Admission.
 Requests for Documents, Objects, or Entry.
 Requests for Examination.
25
 Depositions: Sworn testimony, recorded
by a court reporter and often by
videotape, of the parties and other key
witnesses.
26
 Interrogatories: Written questions
related to the subject matter of the
lawsuit that must be answered under
oath. 
27
 Requests for Admission: Questions to
the responding party phrased in an
“admit” or “deny” format.
28
 Requests for Documents, Objects, and
Entry Upon Land.
 Requests for Examination.
29
 Electronic Discovery: The federal rules
and most state rules now allow for the
parties to obtain electronic “data
compilations.”
30
 Electronic evidence (or e-evidence)

consists of all computer-generated or
electronically recorded information
including:
 E-mail, voice mail, tweets, social
media posts, documents, and other
data stored electronically.
31
 Computers, smartphones, and other

devices automatically record metadata,
or certain information about files such
as:
 Who created them and when.
 Who accessed, modified, or
transmitted them.
32
1st 2nd 3rd 4th

33
 Pretrial Conference: A court will

typically schedule one or more
conferences (or hearings) before trial to
resolve procedural matters and to
narrow the issues for trial.
34
1st 2nd 3rd 4th

35
 The right to a jury trial is guaranteed by
the Seventh Amendment to the U.S.
Constitution.
 In many state and federal courts, one of
the parties must request a jury.

 Most cases are tried without juries.
36
 A trial without a jury is called a bench
trial and the trial judge decides all
questions of fact and of law.
 In a jury trial, the judge decides
questions of law, but the jury decides all

questions of fact (including the amount
of damages due the plaintiff).
37
 Jury Selection (“Voir Dire”):

 Most civil trials are heard by six-
person juries.
 In most jurisdictions, attorneys for the
plaintiff and defendant question
prospective jurors to determine bias
or connection with a party in the case.
38
 Jury Selection (con’t):

 Jurors can be dismissed peremptorily
(no reason) or for cause (bias).
 Prospective jurors cannot be excluded
by the use of discriminatory
challenges such as those based on
racial criteria or gender.
39
§3: THE TRIAL (1 OF 12)
 Opening statements are given by both

attorneys to set forth the facts that they
expect to prove during the trial.
 Rules of evidence are those created by
the court to ensure that any evidence

presented during a trial is fair and
reliable.
40
THE TRIAL (2 OF 12)
 Relevant evidence proves or disproves a

fact in question or to establish the degree
of probability of a fact or action.
 Hearsay is testimony given in court about
a statement made by someone else who

was not under oath at the time of the
statement.
41
THE TRIAL (3 OF 12)
 Examination of Witnesses: The attorneys

question each witness as follows:
 Direct examination.
 Cross-examination.
 Redirect examination and recross-
examination.
42
THE TRIAL (4 OF 12)
 The attorney for the party who called the

witness does a direct examination.
 The witness is then cross-examined by
the attorney for the opposing party.

 Redirect examinations and recross-
examinations provide opportunities for

the attorneys to question witnesses.
43
THE TRIAL (5 OF 12)
 Expert Witnesses: The plaintiff and the

defendant may present testimony from
expert witnesses (people who have
specialized knowledge due to their
education, training, skill, or experience).
44
THE TRIAL (6 OF 12)
 Motion for Judgment as a Matter of

Law/Directed Verdict: A motion for the
judge to take the decision out of the jury’s
hands and direct a verdict for defendant
because the plaintiff has presented no
evidence to support his/her claim.
45
THE TRIAL (7 OF 12)
 Defendant’s Evidence: The defendant’s

attorney presents the evidence and
witnesses for the defendant’s case.
 Witnesses are called and examined by
the defendant’s attorney and then
cross-examined by the plaintiff’s
attorney.
46
THE TRIAL (8 OF 12)
 After the evidence has been introduced,

the plaintiff’s attorney can present a
rebuttal by offering additional evidence
that refutes the defendant’s case.
 The defendant’s attorney can refute
that evidence in a rejoinder.
47
THE TRIAL (9 OF 12)
 Closing Arguments: After both sides

present their cases, the attorneys make
their closing arguments by summarizing
the facts and evidence and telling their
client’s story in the most compelling way
possible.
 Closing arguments are presented even if
the trial was not heard by a jury.

48
THE TRIAL (10 OF 12)
 Jury Instructions: After closing

arguments are completed, the judge
provides instructions (charges) to the
jury on the law that applies to the case
as well as the standard of proof.
49
 Jury Instructions: The standard of proof

in most civil cases is a preponderance of
the evidence (the plaintiff only needs to
show that her factual claim is more likely
to be true than the defendant’s).
 The standard of proof in a criminal trial is
higher because the prosecution must

prove its case beyond a reasonable doubt.
50
 Verdict: After deliberation, the jury

delivers its findings (verdict).
 The verdict specifies the jury’s findings
and liability.
 Jury can award money damages in a
civil case—or prison in a criminal case.
51
§4: POSTTRIAL MOTIONS (1 OF 3)
 After the jury reaches a verdict, either
party can make a posttrial motion that
asks the trial court to alter or disregard
the jury’s verdict or to order a new
trial. 
52
POSTTRIAL MOTIONS (2 OF 3)
 Motion for New Trial: A motion asserting
that the trial was so fundamentally
flawed that a new one is required. The
reasons for this motion include:
 Error by the trial judge.
 Newly discovered evidence.
 Prejudice.
53
POSTTRIAL MOTIONS (3 OF 3)
 Motion for Judgment N.O.V. (“non
obstante veredicto”): A motion asking
the court to enter judgment as a matter
of law in the defendant’s favor, despite
the jury’s verdict—as a matter of fact—in
the plaintiff’s favor.
54
§5: THE APPEAL (1 OF 3)
 A party may appeal the jury’s verdict or

any legal issue, motion, or court ruling
during the trial.
 Appellants must have legitimate
grounds for appeal (usually legal
error).
55
THE APPEAL (2 OF 3)
 Filing the Appeal: Documentation varies
by court but usually includes:
 A notice of appeal.
 A record (or transcript) of the pleadings,
motions, hearings, the judgment, and any
other ruling.
 Briefs outlining the legal arguments for
reversing the judgment (appellant) and for
letting the judgment stand (appellee).
56
THE APPEAL (3 OF 3)
 Once the court has reviewed the case, it
issues a written opinion that
 affirms the trial court’s judgment;
 reverses part or all of the judgment and
remands the case for an additional trial;
 reverses part or all of the judgment and
renders a new ruling without another trial; or
 modifies the lower court’s decision.
57
§6: ENFORCING THE JUDGMENT
 No guarantees that a judgment will
be enforceable.
 Writ of Execution: Directs sheriff to seize
defendant’s non-exempt property and sell it
to pay for judgment.
 A plaintiff and his/her attorney usually
consider whether the defendant has
sufficient assets before the suit is filed.
58

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BUSINESS LAW

TEXT AND CASES

CLARKSON MILLER CROSS 

 Settlement Considerations: The

 Pretrial litigation process consists of

1st 2nd 3rd 4th

 The Pleadings: Formal statements made

 The plaintiff’s complaint contains

 The defendant must be formally notified

copy of the complaint and a summons

 A court may not exercise jurisdiction

the time allotted by the applicable rules,

 The Federal Rules of Civil Procedure

1st 2nd 3rd 4th

 Electronic evidence (or e-evidence)

 Computers, smartphones, and other

1st 2nd 3rd 4th

 Pretrial Conference: A court will

1st 2nd 3rd 4th

the parties must request a jury.

questions of law, but the jury decides all

 Jury Selection (“Voir Dire”):

 Jury Selection (con’t):

 Opening statements are given by both

the court to ensure that any evidence

 Relevant evidence proves or disproves a

a statement made by someone else who

 Examination of Witnesses: The attorneys

 The attorney for the party who called the

the attorney for the opposing party.

examinations provide opportunities for

 Expert Witnesses: The plaintiff and the

 Motion for Judgment as a Matter of

 Defendant’s Evidence: The defendant’s

 After the evidence has been introduced,

that evidence in a rejoinder.

 Closing Arguments: After both sides

the trial was not heard by a jury.

 Jury Instructions: After closing

 Jury Instructions: The standard of proof

higher because the prosecution must

 Verdict: After deliberation, the jury

 A party may appeal the jury’s verdict or

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