INTRODUCTION TO LITIGATION
Civil litigation is governed by a detailed set of rules that are explained in each chapter of the text. However, before studying the rules that govern the specific aspects of litigation, you need to be familiar with the litigation process. This familiarity includes knowing where to find the law governing litigation matters, which courts handle particular types of litigation, and what remedies can be awarded to a plaintiff in a litigation action. Before beginning the exercises, review the specific objectives for this chapter of the text.
· What the differences are between civil litigation and other types of litigation
· Where to find the law applicable to litigation matters
· How the court system is structured
· How a case moves through the litigation process
· What types of remedies an aggrieved party may seek from the court
· What the paralegal's role is in the litigation process
· What the ethical standards are that paralegals must follow
TESTING YOUR COMPREHENSION
Test your comprehension of Chapter One by answering each of the following questions. Circle true or false for each answer. Although the answers may be found in the main text, try to answer each question before referring to the text.
1 T F Civil litigation is the resolution of disputes between private parties through the court system.
2 T F A party filing an action in a state court must follow the procedural rules of that particular court.
3. T F Criminal litigation is commenced by private parties.
4. T F Statutes are laws enacted by state or federal legislatures.
5. T F All laws enacted by Congress are found in the Federal Rules of Civil Procedure.
6. T F Only federal and state governments may enact statutes or codes.
7. T F Common law is never used in the United States today.
8. T F Litigation is commenced by the aggrieved party filing a complaint.
9. T F The aggrieved party filing a complaint is called the plaintiff and the party against whom the complaint is filed is called the respondent.
10. T F A complaint is always filed in the trial court.
11. T F On appeal, the appellate court may hear from witnesses and take new evidence.
12. T F The party appealing the decision of the trial court must demonstrate an error in the court below which affected the outcome of the case.
13. T F If the appellate court disagrees with the trial court's judgment, the appellate court will reverse the decision.
14. T F Appeal to the Supreme Court in not automatic, but rather is discretionary with the Court.
15. T F Compensatory damages are given when the defendant's conduct is willful or malicious in order to punish the defendant.
16. T F If the legal remedy is inadequate to compensate the plaintiff fully, then the plaintiff may be able to obtain an equitable remedy.
17. T F An injunction is a legal remedy.
18. T F Under the federal court system, the trial court is called the United States District Court.
19. T F The communication between an attorney and client is confidential.
20. T F A paralegal may not represent a client in court or at a deposition.
APPLYING YOUR KNOWLEDGE
Answer the following questions by applying the information you have learned from the main text. If you need more space for some of the questions, use a separate sheet of paper.
1. Mary Jane plays a popular character on a daytime soap opera. She recently has seen a commercial in which someone is imitating her voice and mannerisms as she uses them on the soap opera. She is offended by the commercial for two reasons: First, she believes that if someone is going to do a commercial which imitates here character, she should have a right to have been offered the opportunity to do the commercial and receive compensation for the commercial. Second, she believes the commercial is damaging to her reputation as the person doing the imitation does not do a particularly good job and she is afraid that others will associate the poor acting job with Mary Jane's performance on the soap opera. What remedies do you think Mary Jane can seek? If Mary Jane wanted to file suit in the trial court for the county/district where your school is located, which court would she file in?
2. What is the path of a typical litigation case? Why do we have a formal set of rules of civil procedure to govern disputes?
3. Why is appeal to the United States Supreme Court not automatic? Why do we limit the cases the Supreme Court will hear? Isn't justice better served by letting all cases be appealed to the Supreme Court?
4. Why must a paralegal work under the supervision of a lawyer? Are there any times when a paralegal does not need to work under the supervision of a lawyer?
5. Paralegals must always identify themselves as paralegals directly below their name on any correspondence. Why is this? Are there any ethical considerations?
6. Communication between an attorney and a client is confidential and privileged. Is communication between a paralegal and a client confidential and privileged? Why? What policies are we trying to foster by keeping certain communications confidential.
PROJECTS FOR RESEARCH AND WRITING
Each of the following projects requires you to prepare documents from the information you have learned in the main text. In some instances, you will also need to conduct some basic legal research. Once you have finished each of the projects, place the projects in your litigation guide for future reference.
1. Litigation is governed by a formal set of rules which specify the procedure the parties must follow during each stage of the litigation. In order to familiarize yourself with the rules of procedure, locate a copy of the Federal Rules of Civil Procedure. By referring to the Table of Rules, you will note that the rules are divided into eleven sections beginning with Section 1 (Scope of Rules One Form of Action). Identify the other ten sections. Was one section deleted? If so, which section? Does your state have a similar Table of Rules? How are the rules of civil procedure divided for your particular state?
2. A chart in your textbook at page 9 indicates the structure of the federal court system. By reviewing the chart you can visualize the relationship between the trial courts and appellate courts, and identify the courts by a specific name. Using the chart on the following pages, prepare a chart of the court system for the state in which your school is located. Revise the chart as appropriate so that all courts are included. What is the name of your state's trial court? Are there inferior courts as well? What are the names of the inferior courts? Place a copy of the chart in your litigation guide. If you are uncertain about where to locate the names and structure of your state's court system, refer to your state's rules of civil procedure.
Court Structure for the State of _____________________________
3. As discussed in Chapter One at page 7, the fifty states are divided into eleven circuits, plus the District of Columbia. Which circuit is your state in? In addition, each state has at least one district court. How many district courts are in your state? If your school wanted to file a litigation action in federal court, which district court would it file in? Write these answers on a separate page, and place the answers in your litigation guide for future reference.
4. At pages 9-11 of your textbook, you learned the four basic stages of litigation. Compare the chart in Exhibit 1.4 with the rules in your state to determine if a litigation case follows the same path. Are there any differences? Is arbitration mandated in your state for any cases? Note any differences in your litigation guide.
5. At pages 14-15 of your textbook, some of the ethical considerations which must be followed by paralegals are discussed. Make a list of the ethical considerations and place the list in your binder. Can you think of additional ethical considerations which should be included in your list?