Chapter 4 (p.

113-114; 118-140) The Litigation Process

Resolution of International Disputes:

Process of a civil litigation

Lawsuits are based on feelings and when the plaintiff feels that his right has been
violated, he has the right to file a lawsuit or a claim that follows either a common law or
a statutory law. The judicial system will determine if the civil rights of the plaintiff have
been violated.

Steps followed in the litigation process of a civil lawsuit are as follows:

1. The Complaint: A plaintiff (the person who brings the case before the court), files a
complaint or petition (doc describing how the plaintiff’s right has been violated) within
statues of limitations (time limits that differ according to the state in which the
lawsuit was filed and the type of rights involved: ex: 2 years for personal injuries and
4yrs for contracts). The complaint must be definite enough to provide an adequate
description of the situation and must provide the subject matter jurisdiction of the
court. It also provides the remedies wanted by the plaintiff whether they are legal
remedies (such as monetary recovery) or equitable remedies (specific performance
or injunctions). The lawsuit can be filed by one plaintiff or a group of plaintiffs (class
action suit: lawsuits filed by shareholders against corporations-->derivative suits)
2. The Summons: The plaintiff files the complaint to the court with in personam
jurisdiction. Then, an officer of the court (sheriff) or a process server (licensed private
firms) notifies the defendant (the party sued or accused by the plaintiff) by serving
him with a copy of the complaint and a summons, so that the defendant knows his
rights under the law (the right to respond & to be given time to respond). The server
files an affidavit to notify the court of the time and location of the service.
--> In principle, even if the P is a resident of a different state than of the D, he must
follow the D except when D has minimum contact with the state in which the petition
was filed or if the long-arm statue can be applied.

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3. The Answer: Pleadings contain parties’ position while the answer contains the
defendant’s response in litigation which must be filed (the defendant must appear)
within 20 days for in-state-defendants and 30 days for the out-state ones. A default
(failure to show up) will result in the plaintiff winning the case. The P can either
renotify the D or ask for a default judgement. The answer must be filed with the clerk
of the court and a copy should be sent to the P.
-->The answer could be: admit part of the P’s complaint, deny the allegations,
demand for proof of allegations (D has not enough info to admit or deny the
allegations), a counterclaim against the plaintiff, a cross-claim (within the same
proceedings, the defendant sues the other party as a defendant), hire an attorney, or
a third party complaint (a 3rd party not involved in the case can interfere with or
against P/D, or the P asks the 3rd party to interfere, or the P/D sue the 3rd party as a
D)
4. Motions (pre-trial): To avoid taking the case to trial, attorneys can request motions
(written requests) which they must defend through oral presentations and await the
judge’s ruling. Different types of motions are:
-motion for judgement on the pleadings which the defendant uses to show that the
plaintiff has no cause of action: ex: to answer a lawsuit that he’s annoying the P.
-motion to dismiss which the defendant can use when the court lacks in personam
jurisdiction or subject matter
-motion for summary judgement is used to determine which contract law is applied.
The parties do not dispute the facts but differ on the application of the law.
5. Discovery: Before the trial, the parties must go through a discovery phase during
which all relevant documents and evidence are mutually disclosed. The discovery
phase’s tools are as follows:
-Oral interrogatories: questioning witnesses.
-Request for admissions to ask the other party to admit a fact. It reduces the length of
the trial because an admission establishes a fact as true.
-Depositions provided by witnesses who testify orally before the trial and outside the
courtroom.
-limitations on discovery in which the production of work product cannot be required
i.e. it establishes the right for the other party to know all the evidence but not how it
will be used (trial strategy)
-requests for production to produce and obtain new documents from the other party.
6. The Trial: When the case is not settled, it is taken either to a jury trial or a nonjury
trial. If the parties agree on a nonjury trial, the judge acts as both judge and jury. If the
parties do not agree on a nonjury trial, some cases have the right to a trial by jury
under the state constitution. The jury’s size varies according to different states (6
jurors or 12 to 18 jurors) and potential jurors are selected from voting lists or other
and notified beforehand of their jury duty. Some of jurors may be excused from their

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 jury duty due to compelling reasons. Once a pool is available, the court looks for the
qualified candidates to serve through the voir dire process.
--> Jurors are removed for cause when they can’t make an impartial decision or when
they are related to the attorneys in the case, or when they declare their opinions
about the parties in public. They can also be removed by attorneys through the
peremptory challenge, which is subject to some limitations (the number of peremptory
challenges used, race, gender...). Jury selection can be done by jury consulting firms
who conduct background checks on jurors and provide the relevant data to attorneys.
7. Trial Language: Attorneys “open” the trial with their opening statements in which
each party determines what is to be proved and how. The evidence is presented first
by the plaintiff who has the burden of proof (the obligation to prove the assertions and
facts), then the plaintiff’s lawyer questioning of witnesses, through direct examination,
begins. The defendant’s lawyer can cross-examine the plaintiff’s witnesses thereafter
and the plaintiff can further question the witnesses under redirect examination. The
plaintiff must meet the standard of providing enough evidence (prima facie case) at
the end of the trial and if he fails to do so, the defendant can ask for a directed verdict
( a motion made to the judge outside the jury’s hearing). Evidence can be a witness’s
testimony, paper evidence (especially in contracts case) and are subject to certain
restrictions, such as the hearsay rules used to ensure that evidence is as reliable as
possible and to prevent the witness from testifying to what a third party said.
8. At the end of the trial, attorneys can make closing arguments which reinforce their
position and weaken the other party’s position. Jurors are then given instructions by
judge and attorneys to apply the law to the facts presented in the case so that they
can deliberate confidentially to reach a verdict. If the simple majority or three-forth of
the jury (depending on state laws) do not reach a verdict, the trial results in a hung
jury and the case must be retried.
9. If the losing party is not satisfied with the verdict, it can make a motion for a new trial,
or for the judge to reverse the jury’s verdict (judgement NOV) although this motion is
rarely granted. Even if motions are not granted, the losing party can appeal to a
higher court (appellate court) within a specified time limit to review the legal equation
used to reach the verdict.