Law 204 Tort Law For Paralegals
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- A legal wrong or injury (physical, emotional, or financial) that entitles the victim to compensation.
- AKA: Civil Injury
Cause of Action
- A legal injury on which a lawsuit can be based and results in a recovery of damage$.
- Must have Cause of Action in order to sue.
- Documents that describe the legal injuries and counterclaims raised by the parties in a civil case:
- The Complaint and the Answer
- Document drafted by the plaintiff's attorney and served on the defendant.
- Details the personal or financial injury suffered by plaintiff.
- Requests that the defendant pay the plaintiff monetary damages.
Preponderance of Evidence
- The burden of proof in a civil injury/tort case.
- Plaintiff must prove that their allegations are "more likely than not" true.
- (As opposed to a criminal case which has to prove "guilt beyond a reasonable doubt".)
Money that a court orders the losing side in a civil case to pay to the other side.
Finding that one of the parties in a civil case is obligated to pay damages to the other party.
The legal title of the person who brings a complaint/files a lawsuit.
- The legal title of the person who is served with the complaint
- The person or corporation who is sued.
Rule 11, Federal Rules of Civil Procedure
- Requires that reasonable inquiry be made into the factual basis of the lawsuit before a complaint is filed.
- Reduces frivolous lawsuits.
- Investigating the facts of a claim.
- Shows all the essential elements of a lawsuit.
- Shows all elements of the claim, evidence necessary to support that claim, and the identity of the witness or evidence that will prove this claim.
- Plaintiff/Defense each have their own version:
- Plaintiff - all of the basic claims of the complaint
- Defense - focuses on disproving the essential elements of the plaintiff's claim and whatever defenses will be raised at trial.
Sources of Proof
- Witnesses who testify either through deposition or on the witness stand about the facts of the case.
- Exhibits to bolster or support this evidence
- Also, evidence may be presented to disprove a claim.
- Much evidence and witness testimony can be discovered long before a complaint is filed.
- The Defendant's response to the Complaint.
- The document that the defendant serves on the plaintiff, outlining his defenses and any claims he may have against the plaintiff.
Discovery in Civil Cases
- Both sides learn everything about the case.
- Discovery phase is after the pleadings have been filed and served on the opposing parties.
- Issue Interrogatories
- Depose Witnesses
- Request the production of documents
- Request the other side to admit to certain facts
- Request a physical and/or mental examination of a party.
Written questions posed by one side to the other, covering a wide range of issues concerning the case and other matters.
Ex. Asking each other for names, addresses and phone numbers of witnesses the other side plans to call at trial, and about the general nature of the testimony, the existence of written reports about the incident, etc.
Oral questions of a witness that is transcribed by a court reporter, copies of which are given to both sides.
Request For Production of Documents
Each side my request documents such as reports, or almost any other written material relating to the incident that forms the basis of the suit.
Request to Admit Facts
- Each side may request the other side to admit the truth of certain matters.
- When a party admits to certain facts, it means that further proof is no longer required. An admitted fact is taken as true.
- Ex. Asking a company to admit that it is a duly authorized corporation in a particular state.
Request for Physical And/Or Mental Examination of a Party
When a plaintiff's physical injuries are in dispute in a case, the defendant is permitted to request that the plaintiff submit to a physical exam performed by a doctor chosen by the defense.
Trial Elements of a Civil Case
- Jury Selection
- Opening Statement
- Presentation of the Plaintiff's Case
- Motion for Directed Verdict
- The Defense Case
- Closing Argument
- The Jury Charge
- The Verdict
- Both parties question the panel and use the answers as the basis for removing panel members until 12 jurors remain.
- Process is called "Voir dire"
- The plaintiff and the defendant explain their basic positions in the case.
- Plaintiff's attorney goes first and explains what case is about and how the plaintiff was injured by the defendant's actions and how that injury entitles the plaintiff to receive monetary damages from the defendant.
- Defendant's attorney often says the plaintiff's case is unjustified and that the plaintiff is not entitled to receive any money from the defendant.
Presentation of Plaintiff's Case
- Presentation of evidence to support Plaintiff's claim:
- Witness testimony
- Physical exhibits - photos, videos, documents, medical records, etc.
- Defendant cross-examines witnesses.
Motion for Directed Verdict
A motion brought by the defense at the end of the plaintiff's case, asking that the case be dismissed because the plaintiff failed to prove the claims raised in the complaint.
The Defense Case
- Attempts to prove that the plaintiff has no basis for her suit.
- Defense calls witnesses, and presents exhibits to disprove plaintiff's case.
- Plaintiff's attorney cross-examines witnesses.
- Attorneys speak directly to the jurors, explaining what they believe the evidence in the case proved.
- They draw conclusions, appeal to the jurors' emotions, or argue the consequences to the community of a particular verdict.
- Provides directions for the jury about what the law on particular points is and what weight they can give to certain types of evidence.
- Judge tells jurors what to do to decide the case, and reads them the crucial legal points that factored in the case.
The jury's final decision in the case in which they decide questions of fact raised in the case, and decide who wins.
Alternative Dispute Resolution (ADR)
- Any of a variety of non-trial methods to resolve differences in civil cases.
- Ex. Arbitration and Mediation
- A process in in which two or more parties voluntarily agree to submit their dispute to an impartial third person for resolution.
- Can be binding or non-binding.
- Usually binding: admit to follow the ruling of the arbitrator.
An informal process designed to assist the parties to resolve their disputes among themselves.
The appellate court agrees with the verdict, or some ruling, entered in the trial and votes to keep that decision in place.
To reverse a decision is to set it aside; an appellate court disagrees with the verdict, or some ruling, in the trial, and overturns that decision.
The appellate court requires additional information or an evidentiary hearing; it cannot conduct such a hearing itself, so it sends the case back to the trial court for the hearing, and then considers the appeal based on that hearing.
The body of cases decided by judges who have interpreted statutes and prior cases.
The principle that courts will reach results similar to those reached by courts in prior cases involving similar facts and legal issues.
- The power of a court to decide which cases it will hear and which it will not.
- Most state supreme courts use this, especially U.S. Supreme Court, to decide to hear cases that the court considers to be significant or that will help clear up some cloudy issue of the law.
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