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Buisness Law

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Your client wants to file suit, but is unfamiliar with litigation, and may be a tad naïve about the process. Describe, in general, the life of a lawsuit from beginning to end (what pleadings get filed, what is trial like, in general, etc.). Also, please describe the structure of the federal and state judicial branches (what courts are out there). Go on a brief tangent about alternative dispute resolution, and explain the process of mediation and how it differs from arbitration.

Although there are different types of cases and each type has a different complexity level, most American courts follow a general procedure. . The person or group that initiates the lawsuit is called a plaintiff and the one being sued is the defendant. Except in criminal cases where the state files the complaint on behalf of the public. In this case the state is referred to as the prosecution but the accused is still referred to as the defendant. In equity cases the accuser is called the petitioner and the accused is the respondent. For the purpose of this explanation we will refer to the person or group that initiates the lawsuit as the plaintiff and the person or group that is being sued as the defendant.

Once the plaintiff chooses to file suit, there are papers required in order to bring the situation before a court. These papers are called pleadings. The first of these papers will be the complaint itself. These papers are also referred to as a declaration, petition or bill of complaint. It must be filed with the court that has the proper jurisdiction and venue over the case It provides the court with the facts of the situation. It must show not only that there is a legal right but also that there is a legal wrong. It states how the court has both jurisdiction and venue to the suit and it suggests how the plaintiff wishes to remedy the situation.

Once the complaint has been filed, the defendant is then served a copy of the complaint as well as a summons to appear in court which explains the defendants next steps, the time allowed to complete and the penalty for not doing so in that time frame. This is done by either an official, a private process server or by certified mail with return receipt sent to the sender. In a few cases a service can be made by publishing a notice in a newspaper and as with any rule there are also exceptions. In the cases of an authorized state official or registrar of corporations, there are other procedures that may be followed. However, it’s safe to say that the majority are served as first described. Once served, an affidavit is filed with the courts notifying them that the defendant received both the summons and the complaint.

Now once the complaint and summons have been served and the affidavit has been filed, the ball goes to the defendant. The defendant now needs to file either an answer to the complaint or a motion to dismiss with both the court and the plaintiff’s attorney. Typically the time allowed to get this done is 20 or 30 days unless the defendant is out of state. If for whatever reason, the defendant does not file an answer or a motion to dismiss within the allotted time, the judgment will default to the plaintiff.

If a motion to dismiss is chosen, the defendant will now have to either admit or deny the allegations and explain how they are not liable. This is then sent to the court to determine if there are any parts of the complaint that are valid. If the court decides not to dismiss the complaint either as a whole or in parts, then an answer must still be filed. This is also a good time for either side to file any other motion. In cases where either side feels their case can be proved based on their legal arguments alone and no material facts are disputed, a motion for summary judgment can be filed at any point in the case. The judge will award the summary judgment if this is found to be true and if it is determined that when the law is applied to these facts, one party is clearly entitled to a verdict in their favor.

At this time the defendant has a chance to add a counterclaim which is basically the defendant filing a complaint against the plaintiff. They can also add new parties to the lawsuit, turning it into a class action suit. A class action suit is when a group of people rather than a single person or company are either the plaintiff or the defendant.

Now that the complaint and answer have been filed it’s time to go into discovery. Discovery is the time before a trial that both sides gather information from each other and witnesses. Typically these dealings are done without any direct involvement from the court. However, if needed the court can step in and order compliance. The penalty for not complying may include fines, jail or judgment to other party. Methods of discovery include request for documents; depositions, which are sworn testimonies that are recorded and transcribed; requests for admissions, which are written questionnaires that require the other party to admit to the authenticity and accuracy of certain facts and documents; Interrogatories, which are answered in writing like the request for admissions but the questions are more open ended and can be answered by the attorney.

Once discovery has been completed a pretrial conference may be called by either party or the judge. This is just another step to help facilitate the trail. It’s also another step to advocate settlement before going into the trail. Settlement can occur at any point in a trail or the proceedings leading to it.

Now we move into trial. If this is either a criminal or civil trial the defendant has a choice of trial by judge or jury. A trial by jury will be set up of either 6 or 12 jurors depending on the court. It is the job of the jury to decide whether the defendant is guilty/liable. Both sides are responsible for jury selection. Any juror can be rejected for cause/bias and each side can reject about three jurors without giving an explanation. However, they cannot be rejected based on sex or race.

Once jury has been selected both sides’ attorneys make opening statements. Opening statements is where each attorney explains what that will try to prove during the trial. The plaintiff’s case is presented first. Their witnesses and evidence is introduced, examined and then cross-examined. Then it’s the defendants turn to present its case. They also introduce their witnesses and evidence and they too are examined and cross examined. Once the defense rests both sides have a chance to a provide evidence that disproves testimony or evidence that was given by the other side. This is called rebuttal evidence. Now we move into closing arguments. Each side tries to reiterate what they have already presented. They try to invalidate what the other side has said. The judge then gives instructions to the jury and they leave to deliberate. They must come to a unanimous decision in order for a verdict to be declared.

Both parties are entitled to an appeal in an appellate court. There are not any trials in an appeal. In appellate court the judge panel reviews the data from the trial as well as the lawyers have

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