chapter 8 pleadings civ lit 2nd
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Civil Litigation:Process and Procedures
Chapter EightPleadings
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.2
Pleadings Documents filed
With a court To commence Or respond to a lawsuit
Must conform to State or federal Rules of Civil
Procedure Local court rules Judges’ information sheets
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.3
Rules of Civil Procedure Insure that trials are conducted fairly
& produce a just result Federal, state & local Address:
Pleading, discovery & trial procedures Filing deadlines Document format
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.4
Statute of Limitations Time frame within a party must bring
a suit Fundamental fairness can extend the
time to begin with the discovery (knew or should have known) of the injury, rather than the date the injury was received.
May be extended for minors
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.5
Commencing a Suit Depending on the jurisdiction, an
action commences with a Complaint Writ of Summons Summons Petition Notice to Plead Cover or Case Designation sheet
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.6
Notice Pleading Federal & some state courts Must give notice of the event & the
claims arising from that event (short & plain statement)
The basis for the claim & damages will be more thoroughly identified during discovery
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.7
Fact Pleading Must state
Material fact on which the cause of action or defense is based
Averments of fraud or mistake Time, place & items of special damage Conditions precedent Jurisdiction
Must attach documents that form the basis of the claim
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.8
Notice v. Fact Pleading Notice pleading requires that enough
information be included to give the defendant notice of the events & claims against him
Fact pleading requires that all relevant facts & claims be included in the complaint
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.9
The Summons A federal summons can be
downloaded, copied & prepared It advises the defendant
Of the lawsuit The time within which a response must
be filed What will happen if there is no response How to obtain a lawyer
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.10
Summons Preparation Completed by the legal team The clerk of court adds the filing
information Case number Judge assigned
The return of service form is on the back
The summons & complaint are served, and the return of service is completed
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.11
Civil Cover Sheet Summary page used by data entry
personnel Names & addresses of the parties Counsel contact information Types of claims asserted Basis of jurisdiction Class action or related claims?
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.12
Drafting the Complaint Caption
Identity of the parties Jurisdiction & venue of the court Document title Docket Number provided by Clerk
Numbered paragraphs One fact per paragraph is ideal, but
difficult
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.13
Jurisdictional Claim Identify parties & situations enough
to establish personal jurisdiction Describe claim to establish subject
matter jurisdiction Jurisdictional limits on amount in
controversy vary Courts may be limited in the types of
claims they can hear (juvenile, probate)
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.14
Elements of the Cause of Action Each cause of action appears as a
separate count Each count need not plead elements
individually in a notice pleading jurisdiction
Each count must contain all the necessary elements in fact pleadings
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.15
Counts Counts will describe each separate
cause of action Complaints divided into counts for
clarity Case, if heard by court, will be
decided for each count
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.16
Damage Allegation Must claim harm
Personal physical injury Property damage Monetary losses
Out-of-pocket expenses Lost wages Loss of earning capacity
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.17
Prayer for Relief “Wherefore” clause Related to damages Asks the court for relief, based upon
the alleged harm“Wherefore the plaintiff demands judgment
against the defendant in a sum exceeding $75,000 plus interest, costs, attorney’s fees, and such other relief as the court deems reasonable.”
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.18
Unliquidated damages
Unliquidated damages are not calculable by mathematical calculation (pain and suffering)
In situations with unliquidated damages, some court rules will not permit including a specific amount (example: $12,000,000) in request
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.19
Signatures Attorney certification
Familiar with facts & claims Based on bona fide basis in law No improper purpose Facts have been investigated Believes the information to be true &
accurate Can be sanctioned for frivolous claims
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.20
Verification Client signature
Subject to perjury Client asserts the truthfulness of the
claims Not required in all jurisdictions
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.21
Filing Fees Must be paid with filing Vary by jurisdictions May be possible to file & pay online Indigent parties may seek waiver (in
forma pauperis) After-hours filing may be possible in
some jurisdictions
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.22
Electronic Filing Rules vary by jurisdiction Must submit materials in format
specified Word WordPerfect PDF, etc.
Both parties should consent to electronic filing where it is an option
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.23
Service of Process Insures due process: notice of the suit, an
opportunity to be heard Generally, service is performed by
An adult (frequently the sheriff) Not a party At recipient’s place of business or residence To an adult
Service is confirmed by affidavit Right to service can be waived
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.24
Calculating deadlines For a federal deadline of 20 days:
S M T W T F S
served
Begin count
2 3 4
5 6 7 8 9 10 11
12 13 14 15 16 17 18
19 Holiday
Due date
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.25
Amend or Supplement the Complaint New information after filing Correct or add material Before a responsive pleading, no
permission required After a responsive pleading, only
upon a motion granted by the court