Chapter 3: Civil Procedure and Arbitration

Kyle Mackenzie, Ben Griffith, Todd Kulage, Kathie Noonan, Jenny Blass, Jordan Gilbert, Bridgette Ridpath

I. Introduction

In today’s society, lawsuits are occurring more and more often. There are many different reasons for lawsuits including: torts, crimes, contract violations, violations of intellectual property, and physical and emotional damages. When someone feels their rights have been violated, often they choose to sue. The person who initially sues is the Plaintiff, and the person who is being sued is called the Defendant. In order to sue someone, a specific order of events (called civil procedure) must be followed. Civil procedure consists of three parts: pleadings, discovery, and the trial. If this specific order is not followed, the case and/or proceedings can be appealed. However, before this process begins many people choose to get legal advice from a lawyer. Plaintiffs can also go to a trial Pro Se, meaning they represent themselves without a lawyer.

II. Paying Lawyers

Once someone has decided to hire a lawyer, there are different methods of payment that the plaintiff can choose from: by the hour, on a per case basis, through a contingency fee, or through an insurance company. Lawyers who are well known, with credible experience in certain specialized areas of the law are paid more. Which type of payment will occur, depends upon many different factors including: what kind of case it is, how big the case is, where you live, etc.

A. By the Hour

The first type of payment is by the hour payment, where the lawyer sets a certain fee per hour worked on the case. A lawyer’s hourly rate varies depending upon his/her experience and the demand for the particular service. In smaller towns and smaller cases, these fees generally range from $80 to $100, whereas a case on a much larger scale can cost anywhere from $400 to $800 an hour. An example of an extreme situation is when one lawyer charged his client $600 an hour while he was making copies. There has even been a case where a lawyer has charged someone with 27 hours of work in one day. When the lawyer started working on the case on the east coast, and took a flight to work on the case on the west coast; he picked up three hours with the time zone difference.

Chapter 3: Civil Procedure and ArbitrationPage 1 B. Per Case Basis

Another form of payment is on a per case basis, where the attorney charges a flat fee for the whole case. Such a payment would occur on relatively simple cases such as DUI charges, speeding tickets, divorces, name changes, and disputes over a will.

C. Contingency Fee

In big cases such as personal injury, class-action lawsuits, and workers' compensation, some attorneys use a contingency fee method for their pay. A contingency fee is a payment for a percentage of the money won in the lawsuit by the lawyer’s client. This agreement will be put in a written contract. However, this can be risky for an attorney, because if they lose the case, they do not make any money. This could also mean that they will fight hard to win the case so they can earn their pay. However, some cons to this type of payment are the high percentage of winnings paid to attorneys, sometimes between 25% and 50%. The contingency fee type of payment is generally only used by attorneys who are very confident that they have a winning argument.

Contingency fees are somewhat controversial. They are generally used by plaintiffs who are suing for large sums of money. One New York judge ruled them illegal, and New York accountants are not allowed to enter into contingency fee agreements with their clients. They are not legal in some other states as well. In Canada, contingency fees are legal in some provinces. In Ontario, contingency fees were only ruled legal in 2003, and there are no caps on how much can be charged. Overall, advantages of contingency fees are that they provide motivation for the attorney to put time and effort into their client’s case, but they also might only pick claims to pursue when they know they have a greater chance of winning. The client must be knowledgeable in order to avoid being taken advantage of. The criticism is that they encourage lawsuits and that some lawyers can become very rich (if they are successful).

D. By Insurance Company

In some circumstances, an insurance company will pay for a client’s lawyer fees. Such a circumstance would occur in an accident case where the insurance company is already paying other fees.

E. Pro Bono

There are instances when an attorney may perform legal work, either free of charge or for a very nominal fee. This type of service is called pro bono, which means “for the good.” According to American Bar Association (ABA) Rule 6.1, a lawyer should aspire to render at least 50 hours of pro bono public legal service per year. The ABA suggests that this service be rendered to persons of limited means such as: charitable, religious, civic, community,

Chapter 3: Civil Procedure and ArbitrationPage 2 governmental, and educational organizations, groups seeking to protect civil rights, and activities for improving the law. It is the belief of the ABA that every lawyer should spend some time to help those who are disadvantaged and cannot pay to be represented.

III. Civil Procedure

As stated above, the civil procedure of a trial consists of three stages, each of which consists of a specific process within itself. These stages are the pleadings, which is the initial notification of a formal lawsuit; discovery, which is a pre-trial process in which each side learns information about each other; and finally, the civil trial process itself.

A. Pleadings The first stage of civil procedure is the pleadings. The pleadings begin when the plaintiff or his/her lawyer creates a petition or complaint. This written statement explains the events of the case and the requested compensation for it. This petition is then taken to a circuit court clerk. From this petition the clerk drafts a summons, which notifies the defendant about the lawsuit, the location of the court, and how long the defendant has to appear in court. The summons and complaint are usually delivered by the local Sheriff to the defendant. The defendant usually has between thirty and sixty days to answer the summons. If the defendant fails to answer, the plaintiff automatically wins the lawsuit, and gets rewarded any damages stated on the petition. This is called a Judgment by Default.

Chapter 3: Civil Procedure and ArbitrationPage 3 Circuit Court for the County of Adair State of Missouri

Dorothy Brandt, Plaintiff Vs. No. 12345 Adolph Kloss, Defendant SUMMONS SAMPLE The State of Missouri to Defendant Adolph Kloss: You are hereby summoned to appear before the above-named court and to file your pleading to the petition, a copy of which is attached hereto, and to serve a copy of your pleading upon John Sandstrom, attorney for the plaintiff, whose address is 210 E. Main St., Kirksville, MO 63501, all within 30 days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the petition.

______Circuit Clerk

(Seal of the circuit court)

Dorothy Brandt, Plaintiff Vs. No. 12345 Adolph Kloss, Defendant

PETITION SAMPLE

The plaintiff for her cause of action states:

1. On April 1, 2006, at 5:48 pm in the city of Kirksville, Adair County, Missouri, the plaintiff was walking east across Baltimore Street and the defendant was driving his automobile south on Baltimore Street. 2. The defendant, by not maintaining proper control of his vehicle and by not maintaining proper speed, negligently drove his automobile so that it ran into the plaintiff. 3. As a result, the plaintiff suffered severe, permanent personal injury.

Wherefore, the plaintiff demands judgment against the defendants for $150,000 and costs. ______John Sandstrom Attorney to the Plaintiff 210 E. Missouri Kirksville, MO 63501

If the defendant wishes to continue with the lawsuit and appear in court, he/she must send an answer. This states his or her answer to the plaintiff’s petition. The defendant can either: admit truth, deny, or claim ‘I don’t know’ to each of the plaintiff’s claims. If the defendant does not admit the truth, the plaintiff will have to prove that claim.

The defendant may also include a new claim, called a counterclaim, if they believe that they are entitled to damages arising from the same issue. Here the defendant is suing the plaintiff. The petition and counterclaim will all be handled in the same trial.

ANSWER and COUNTERCLAIM SAMPLE

For his answer, the defendant states: 1. That paragraph 1 of the plaintiff’s petition is true. 2. That the defendant denies paragraph 2 of the petition. 3. That whatever injuries, if any, plaintiff received on the occasion mentioned in her petition were directly due to her own failure to exercise ordinary care for her own safety, in that she stepped and walked directly in front and in close and dangerous proximity to an approaching automobile when she saw and heard of the approaching automobile in time to have not been hit. 4. That the defendant has no knowledge of any injuries suffered by the plaintiff. For his counterclaim, the defendant states: 1. That the defendant did negligently step into the path of an oncoming automobile as stated in paragraph three above. 2. That as a result of the collision the defendant’s automobile sustained $900.00 in damages.

Wherefore, the defendant, Adolph Kloss, demands judgment against the plaintiff and demands an amount of $900.00 and costs.

______Margaret Cheatum Attorney for the Defendant 633 Baltimore Kirksville, MO 63501

The last leg of the pleading stage is the reply by the plaintiff. The reply consists of the plaintiff’s point by point response to the defendant’s counterclaim, stating their agreements and disagreements to the statements made by the defendant.

REPLY SAMPLE

For her reply to the defendant’s counterclaim, the plaintiff states:

1. That the plaintiff denies paragraph 1 of the counterclaim 2. That the plaintiff has no knowledge of the damages suffered by the plaintiff’s automobile. ______John Sandstrom Attorney for the Plaintiff 210 E. Missouri Kirksville, MO 63501

B. Second Stage: Discovery

During the discovery stage of the civil procedure, both the plaintiff and the defendant (and their attorneys) try to gain information about the other party through different means in a pre-trial process. Discovery helps minimize surprises in court and helps the lawyers know what strategies to use in court. There are five types of discovery: interrogatories, depositions, admissions, physical discovery, and medical/psychological opinions.

The first kind of discovery is interrogatories by both sides. An interrogatory is a set of questions written by one party to be answered, under oath, by the other party. These are usually preliminary questions that ask for background information on anyone involved, and they also help decide what facts will be presented at the trial. The answering party can once again affirm, deny, or claim ‘I don’t know’ to any questions asked.

Another form of discovery is depositions, in which one party’s attorney orally examines the other party or witnesses. These depositions are also under oath, like a trial situation, but they usually occur in the attorney’s office or another place outside the courtroom. This deposition is recorded by a court reporter. Depositions can be read to the jury if the witness cannot be present, and they also assist the attorneys in knowing who to call as witnesses and what questions to ask them.

Chapter 3: Civil Procedure and ArbitrationPage 7 Physical discoveries are the next type of discovery. They include requests for the production of any documents, videotapes, photographs, and any other physical item from either party.

An admission by one party is another type of discovery. A request for admissions is one party’s written demand for the other party to admit or deny certain events that may or may not have happened. This is often used when some aspect of the case is hard to prove and is made much easier with an admission by one party or the other. Should one side decide not to respond to a request for admission within a certain time period, it is to be assumed that they are admitting the truth of the statements on the request.

The last form of discovery is medical and psychological discoveries. This is the only form of discovery that requires court involvement. During this stage, the plaintiff/defendant and attorney motion the court for an order requiring the other party to undergo a physical or mental examination. With this they are trying to discover the extent of any physical and/or psychological damage that occurred as a result of the incident. Often times, the party is seen by a doctor to determine the extent to which he/ she has been damaged and to determine the monetary value of those damages. A second medical opinion can be forced if the party asking for this discovery disagrees with the first medical opinion.

C. Third Stage: Civil Trial

Once the pleadings and discoveries have all been made and are finished, it is time to move on to the third and final stage of the civil procedure: the civil trial itself. The civil trial process consists of a series of events that must be followed. It is important to note that the civil trial process is different than that of a criminal case which will be discussed in a later chapter.

The first step is deciding whether or not to have a jury. If a jury is not used, the case is brought before a judge who makes the decision. However, if either attorney decides that they want a jury, the members are picked through a “Voir Dire” process. First, the jury pool is narrowed by a challenge for causes, in which the potential jury members are asked questions about their beliefs or knowledge of the case, and then some are sent home based on these questions. They can be sent home for many varying reasons; for example if they know the people involved in the case, have a preconceived opinion about the subject matter of the case, or just a general disdain for the case. Then, each attorney is allowed an allotted number of peremptory challenges where the list of potential jurors is passed between the lawyers and they can remove any member of the list for any reason they wish (except on racial grounds). The judge then randomly strikes names off the list until the jury pool is narrowed to twelve (or however many members are being used for the jury).

Once the jury is picked and the trial is ready to begin, the opening statements are made outlining what each party expects to prove with their case. Second is the plaintiff’s case in chief

Chapter 3: Civil Procedure and ArbitrationPage 8 in which the plaintiff calls witnesses to the stand. The witness is first questioned by direct examination by the plaintiff’s lawyer. Next is through cross examination by the defendant’s attorney. This is followed by redirect examination by the plaintiff’s lawyer again, and then possibly followed by re-cross examination by the defendant’s lawyer again. This process repeats for all the plaintiff’s witnesses. Once the case in chief is complete, the defendant motions to the judge for a directed verdict. This means that even if everything in the case in chief was true, the plaintiff’s case is too weak to continue. This motion is most often denied by the judge.

The defendant then makes their own case in chief by bringing their witnesses to the stand to testify. They are examined by the same process of direct examination, cross examination, redirect, and re-cross. Each party then has the option to bring in rebuttal witnesses to make their case stronger and to present more evidence to aid their case. Once all the rebuttal witnesses have been called to the stand, either party can make a motion for a directed verdict, which is again usually denied. The jury then receives instructions from the judge that set forth the legal rules pertaining to the case. The closing arguments are then made to summarize each party’s case in the trial. The plaintiff goes first, then the defendant, and then the plaintiff once again.

At this point, the case is in the hands of the jury or judge. In cases without a jury the judge takes the case back to his office, makes findings about the facts, applies the law, and renders judgment. If a jury is being used, they leave the courtroom to discuss the case, and try to reach a verdict. In civil cases, the burden of proof is on the plaintiff to show his/ her case is “more likely than not,” called a preponderance of evidence. It is important to make the distinction between this and the burden of proof in a criminal case, in which the plaintiff must show “beyond a reasonable doubt” that the defendant is guilty. In Missouri, a three-fourths vote is enough to make a verdict. Again this differs from a criminal case, in which the jury must usually reach a unanimous verdict. When the jury has reached a verdict, it presents the verdict to the judge who can either rule in accordance with the verdict (making it official) or overrule the verdict with a Judgment NOV (Judgment notwithstanding the verdict).

The losing side can then make a motion for a new trial claiming mistakes were made during the trial, which could include legal errors by the judge, jury misconduct, or the discovery of new evidence. If the judge grants this, the whole trial is done over again. If the judge does not grant this, the losing side can then appeal the case to a higher court.

Chapter 3: Civil Procedure and ArbitrationPage 9 Chapter 3: Civil Procedure and ArbitrationPage 10 III. Arbitration and Mediation There are many times when a settlement of a lawsuit may occur without ever having to go to trial. One way this may happen is through arbitration. Arbitration is the submission of a dispute to a neutral, non-judicial third party who then picks a winner of the dispute. This differs from mediation in which the neutral third party helps the two parties disputing come to a cooperative agreement or compromise. In arbitration, both parties must agree for an arbitrator to be used. The arbitrator is sometimes an attorney but is definitely a professional who has expertise in the subject matter of the dispute. The binding decision by the arbitrator is called an award. It is filed with a court which will enforce the ruling if necessary. Arbitration is growing in popularity due to its low cost, the fact it does not go on public record, because it avoids the complications of the legal system. Arbitration has recently undergone some scrutiny. In some situations one party may demand that arbitration be agreed to by the other party when the initial contract is agreed to. They had no choice but to accept the terms of the arbitration. One party may feel they have no choice but to agree to this contract. They are increasingly being used in employment contracts. There is also no type of judicial review for the outcome of arbitration settlements, which could weaken some of the basic public and civil rights. Also, arbitration may be favoring the employer, as some corporations have sections in their arbitration clauses limiting the rights of individuals. An Arbitration Fairness Act of 2007 was introduced but did not become law.

http://www.highbeam.com/doc/1G1-14032671.html

http://www.canadian-lawyers.ca/understand-your-legal-issue/general-info/1036044/

http://www.langmichener.com/index.cfm? ID=8574&fuseaction=content.contentDetail&tID=244 http://www.govtrack.us/congress/bill.xpd?bill=h110-3010

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