INTRODUCTION
1st Part: Pre-Trial civil procedures
The rules of civil procedure vary among the states, but most states rules are similar to the Federal Rules of Civil Procedure (FRCP).
Consequently, procedure will be explained by reference to the FRCP.
A significant portion of civil proceedings in the US actually takes place before trial, and many cases end before reaching the trial stage (about 90%)
Before taking a case to court, it is generally preferable to send the other party a demand letter, seeking an out-of-court resolution of the dispute.
If that attempt fails, a person who wishes to initiate a civil action must choose whether to start a court action or seek arbitration.
Arbitration has become a more and more popular alternative to traditional justice, and it allows cases to be resolved more quickly than a court procedure would.
Many contracts, for example, stipulate that arbitration must be sought in the event of a dispute.
- The Pleading Stage of the Case
- Plaintiff’s Complaint
A civil action begins when the plaintiff files a “complaint” with the clerk of the court.
The FRCP requires that the complaint contains a statement of the grounds upon which subject matter jurisdiction of the court is based, “a short and plain statement of the claim showing that the pleader is entitled to relief” and a demand for the relief that the pleader seeks.
The complaint must be filed in a timely manner; meaning in compliance with the time limit provided by the relevant states’ or federal’s statutes of limitations.
After the plaintiff files the complaint with the court clerk, the clerk issues a “summons”.
This is an order of the court directing the defendant to respond to the complaint or suffer a “default judgment.”
Then, the plaintiff must arrange to have the summons and a copy of the complaint “served” on the defendant.
There are various methods of service, but the most common are in-hand personal service and service by mail.
- The Defendant’s Response to the Complaint
The defendant responding to the complaint has two options:
- The first is to raise one or more of several procedural defenses that are allowed to be raised by a “motion to dismiss.”
The defendant has the option of asserting certain procedural defenses in a motion to dismiss.
Those grounds are challenges to the court’s jurisdiction (personal or subject-matter), improper venue (place the case was filed), improper service of process, failure of the plaintiff to join an indispensable party, or failure of the plaintiff to state a legal claim.
The ground of “failure to state a claim upon which relief can be granted” is the only ground relating to the merits of the case that is allowed to be raised by motion this early in the suit.
- The second option is to contest the complaint on its merits by filing an “answer.”
The defendant’s answer contests the plaintiff’s claim on the merits.
The main parts of the answer are responses to the allegations in the plaintiff’s complaint and “affirmative defenses.”
In the responses to the allegations, the defendant is required to admit, deny or state lack of knowledge as to each allegation in the complaint (lack of knowledge is treated as a denial).
Affirmative defenses stated in the answer may include such grounds as contributory negligence, satisfaction of claim, fraud.
In a third part of the answer, the defendant may include any “counterclaims” against the plaintiff.
- The Discovery Stage
After all matters of preliminary defenses and pleading are resolved, the facts of the case are investigated and developed through a pretrial process called “discovery.”
In discovery, the parties have the power to require anyone who has knowledge relevant to the case, including the opposing party, to come forward and divulge that knowledge under oath.
Discovery is largely conducted by the lawyers themselves independently of the court or a judge.
Any necessary discovery meetings, including the taking of testimony, are generally held in the office of one of the discovering party’s attorneys.
There are five different discovery devices:
- Depositions
The first and most widely used is the oral “deposition.”
Any person, who has information relevant to the case, can be compelled to undergo a deposition, or be “deposed.”
A court reporter who is a notary is present to swear the deponent (the person being deposed) and to make a verbatim record of the examination as in court.
Depositions are useful tools for preparing for trial.
They allow the lawyers to directly question the opposing witnesses and party well before trial, and to better evaluate how they will perform at trial.
- Interrogatories
The second most used devices are “interrogatories” sent to the opposing party.
Interrogatories are written questions that must be answered under oath in writing.
The advantage of interrogatories is that they are cheap and easy to use.
- Requests to Produce Documents and Things
Like interrogatories, “requests for production of documents” can be sent only to an opposing party.
This device is often used in conjunction with interrogatories, thus allowing a party to ask about documents and then require that appropriate copies be attached.
- Order for Physical or Mental Examination
An order of this type is type is used to verify a party’s physical condition by requiring that the party be examined by a doctor chosen by the opposing party.
- Requests for Admissions
“Requests for admissions” are written requests asking that the opposing party admit the truth of certain facts which discovery shows are essentially undisputed.
- Motion for Summary Judgment and the Final pretrial Conference
- Summary Judgment
Summary judgment is based on the principle that the primary purpose of the trial is to determine the facts of the case.
If the facts of a case are not in dispute, there is no need for trial and at least the liability portion of the case can be disposed of summarily by the judge alone.
Thus, summary judgment will be granted if “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law”.
- Pretrial Conferences
As a means of managing a case, most judges hold pretrial conferences, which all the lawyers are required to attend.
Under the Federal Rules, the purpose of pretrial conferences is to manage the case in such a way as to assure that all settlement opportunities are explored, that wasteful pretrial activities are avoided and that the quality of the trial is improved through more open discovery and better case preparation.
After the final pretrial conference, the judge enters a “final pretrial order.”
It will recite all the facts and law applicable to the case that are not in dispute, set out the remaining issues to be tried, and list the witnesses to be called and exhibits to be presented at trial.
No witnesses may be called except those listed in the pretrial order.
No exhibits may be offered except those ruled admissible or designated as eligible to be offered at trial in the pretrial order.
No legal or factual issues and theories may be gone into at trial beyond those set out in the order.
The order may be changed only as necessary to “prevent manifest injustice.”
2nd part: Pre-Trial criminal procedures
In the US, most crimes are defined at local and state levels.
However, there is federal criminal legislation wherein federal crimes are listed and defined in very precise titles and subtitles.
Criminal procedure refers to the body of rules governing the enforcement of criminal law.
A key concept of the American procedure is the adversarial system, based on the notion that the interests of both parties must be balanced and that each mus have a fair say with the opportunity to challenge one’s opponent.
Accordingly, the rules of criminal procedure aim at ensuring fair proceedings, especially in relation to the rights of defendants.
- Arrest, formal charges and the first appearance
Crimes are divided into “felonies” and misdemeanors”.
The classification is determined by the potential sentence:
- Felonies are crimes punishable by death or by imprisonment for a year or more, and
- Misdemeanors are punishable by less than a year in jail.
The felony-misdemeanor distinction has an impact upon the nature of pre-trial procedure.
As in most countries, the police are usually the first to arrive at the scene of a crime or to receive a report of one.
If the report is based upon police observation, and the police believe that they have “probable cause” to believe the suspect committed a crime, the suspect is immediately arrested.
“Probable cause” to arrest has been defined as existing when “the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed”.
If the report of a crime is based on information provided by a victim, the police will conduct a pre-arrest investigation to determine if there is sufficient evidence to support charges against a suspect.
The police may also seek an arrest warrant from a judge if they submit written affidavits (sworn statements under oath) showing that is probable cause to believe the accused committed the crime.
However, the vast majority of arrests are made based on probable cause, without a judicial warrant.
After an arrest, the police will also carry out any necessary investigation to gather further evidence against the person arrested.
Once an arrest is made, a higher police official and then the prosecutor will informally review the sufficiency of the evidence to determine whether to charge the accused with the crime, but these reviews are not impartial.
In general, the police carry out both pre-arrest and post-arrest investigations without any direct supervision or assistance from the prosecutor.
No judge or any other judicial officer has any responsibility for overall supervision of the investigation.
Police investigators do not have the power to issue subpoenas or otherwise compel unwilling witnesses of victims to give statements to them.
Instead, they must resort to persuasion, pressure or charm, as the situation demands.
The only way that witnesses can be compelled to come forward is if a grand jury conducts the investigation and it issues a subpoena.
The more familiar role of grand juries is more passive – they are used to screen cases after the prosecution decides it has enough evidence to charge a person.
But some jurisdictions provide for investigation grand juries, which can issue a subpoena to witnesses, including potential defendants.
Even if a person is called before a grand jury, that person can decline to testify on grounds of self incrimination under the 5th amendment.
If the prosecution believes the evidence the person has is crucial to the investigation of others, it can obtain a court order compelling the person to testify.
However, the prosecution must first grant the witness immunity from prosecution for any crimes revealed by the compelled testimony or derived from it.
If charges are authorized by the prosecutor, a “complaint” is filed in Court.
A judge or magistrate then conducts an ex parte review of it and supporting information to assure that there is sufficient incriminating information to establish probable cause.
This must take place within 48 hours after the arrest.
Ex parte in this context means that the prosecutor may participate, but neither the defendant nor the defendant nor the defendant’s lawyer is present.
The next stage is the defendant’s “first appearance” before a judge or a magistrate.
This 1st appearance has several purposes:
- One is to assure that the person arrested is actually the person named in the complaint
- Another is to advise the defendant of the charge against him or her and to provide information about rights the accused will have in future proceedings. These include the right to a lawyer. For most defendants, this the point at which a lawyer is appointed.
- The judge also decides whether the defendant may be released pending trial. Pre-trial release has traditionally been referred to as “release on bail”.
In the case of a felony, the judge sets a date for a “preliminary examination”.
If the case is a misdemeanor, preliminary examination is not necessary and the case may be tried immediately.
- Preliminary Hearings, Indictments or information
In felony cases, the next step is to screen the evidence against the defendant to see if it can support a formal charge.
This is done in one of 2 ways:
- By a Judge or magistrate after a preliminary hearing or
- By a grand jury
If the preliminary hearing route is used and the case survives, a “prosecutor’s information” is filed with the trial court.
If the case goes through a Grand jury, a “grand jury indictment” is filed.
Please note that the 5th Amendment of the US Constitution requires that federal prosecutors proceed by grand jury indictment in all felony cases.
As to States, as usual, it depends.
The preliminary examination or hearing takes place before a judge or magistrate a few weeks after the first appearance.
Both sides are present and are represented by counsel.
The issue at the preliminary hearing is whether there is enough evidence to “bind over” the defendant for trial.
For a “bind over”, the court must find that:
- A crime has been committed and
- There is “probable cause” to believe that the defendant committed it (“probable cause” in this context is generally defined as sufficient evidence to hold the defendant for trial
Charges are rarely dismissed as a result of the preliminary hearing.
Because the preliminary examination is designed for the protection of the defendant, the defendant can waive it.
Within a short time after the indictment or information has been filed with the trial court, the defendant is “arraigned before that court.
This means that the defendant is brought before the court to be formally charged with the crime as specified in the indictment or information.
At the arraignment, the defendant is informed of the charges and asked to plead guilty or not guilty.
The process for accepting a guilty plea is the following:
- The defendant stands in Court with defense counsel and the judge questions the defendant personally about the plea
- The judge’s purpose in inquiring is twofold: to assure that the guilty plea is voluntary and to set out sufficient facts to show that the defendant is in fact guilty of the offense
- Without establishing both these matters on the record, the plea cannot be accepted by the court and the case will be set for a trial.
If the defendant does not plead guilty at the arraignment, the judge sets a date for a trial.
- Pre-Trial motions
Prior to the trial, a defendant has the right to raise several motions.
A common motion is a “Brady motion”, which is a motion for discovery of the prosecution’s evidence.
Even though prosecutors are not required to turn over their entire file to the defendant, they are required under the due process clause to turn over all the exculpatory evidence in their possessions.
A defendant can also raise a motion to suppress evidence when it is obtained through unconstitutional police methods
3rd part: Trial procedures: civil and criminal
- Trial Procedure
- Jury Selection
The Jury selection process: the purpose of jury selection sometimes called “voir dire”, is to determine the qualifications of potential members of the jury and to select an impartial jury to try the case.
Following jury selection, the jury is sworn to decide the case impartially and is given some preliminary instructions on the format of the trial and their duties.
Most important, they are admonished (or warned) to keep an open mind and not to discuss the case with anyone (even among themselves) until the evidence, arguments and final instructions have been completed and they have retired to deliberate.
- Opening statements
After the jury is selected, sworn and seated, the lawyers are permitted to make “opening statements” to the jury.
The purpose of the opening statements is to allow the parties to outline the facts in the case and to introduce the jury to their claims or defenses.
- Presentation of Evidence (proofs)
Following the opening statements, the most important part of the trial starts with the lawyers for the parties presenting their cases – the evidence of their side.
The plaintiff (or the prosecution in a criminal case) goes first and presents the “plaintiff’s case” (called the government’s case or state’s case in a criminal action).
Then, the defendant’s lawyers present the “defendant’s case”.
Following that, the plaintiff or prosecution has the opportunity to present a “rebuttal case”.
The lawyers presenting the evidence have three principal tasks: presenting witness testimony, presenting documents of other tangible evidence, and making and defending against objections to evidence.
- Witness testimony
Witnesses may testify based only on personal knowledge and generally witnesses may not testify to “hearsay” – what someone else told the witness.
A court stenographer takes down verbatim all the testimony and everything else said in the proceedings.
The side that called the witness questions the witness first on “direct examination”.
The opposing side is then given the right to conduct a “cross examination” of the witness.
Following the cross examination, the side that called the witness then has the opportunity to conduct a “redirect examination”.
A “recross examination” and even possibly a second redirect examination may follow, but these are discretionary with the judge.
- Direct examination
A direct examination has 3 parts:
- Background of the witness (who the witness is, where the witness works, etc.)
- Setting the scene by describing the place where the incident occurred,
- Action, that is, description of the incident itself.
In getting the witness’s story out, the witness will usually be answering the five essential “W” questions that any good newspaper story answers – who, what, where, when and why?
- Cross Examination
The purpose of cross examination may in some cases be to seek out information, but more often its main purpose is to undermine the credibility of the witness’s direct examination testimony.
- Redirect Examination
Redirect examination is the opportunity for the direct examiner to return to “repair” any damage done on cross examination.
- Motions for a Directed verdict
Following the plaintiff’s or prosecution’s presentation of evidence, the defense may move for a “directed verdict” on the basis of the plaintiff’s evidence, even before presenting the defense case.
In a criminal case, a similar motion is made after presentation of the prosecution’s evidence and it is often called a “motion for judgment of acquittal”.
The motion seeks dismissal of the case on the ground that the plaintiff or prosecution has failed to produce sufficient evidence for rational jurors to return a verdict in its favor.
The defendant has the right to make a second motion for a directed verdict or judgment of acquittal after all the evidence has been presented.
- Closing arguments
After both the plaintiff and defendant have “rested their cases” meaning that they have presented all their evidence, it is time for “closing arguments”.
Closing arguments are the opportunity given to the lawyers in the case to address the jury directly and seek to persuade the jury to decide the case in their side’s favor.
Closing is certainly the most “flashy” of all the things that trial lawyers do in trials, but it is not necessarily the most important.
If the evidence has not been presented effectively, a brilliant closing argument will not save the case.
- Jury Instructions
At the end of all the proofs and usually after closing argument, the judge will provide jury instructions on the law applicable to the case.
This will include the substantive law related to the claim made or offense charged, such as the requirements for a binding contract or the elements of murder.
The Jury is also told what standard of proof is to apply in deciding the case.
In a criminal case, the standard is “proof beyond a reasonable doubt”. Thus, the Jury is told that it may find the defendant guilty only if it finds beyond a reasonable doubt that the defendant committed the crime and that it must acquit the defendant if it has a reasonable doubt as to the defendant’s guilt.
In a civil case, the standard of proof is the “preponderance of the evidence”, sometimes referred to as the “greater weight of the evidence”.
A typical instruction explaining reasonable doubt tells the jury:
Reasonable doubt means a doubt based upon reason and common sense that arises from a faire and rational consideration of all the evidence or lack of evidence in the case.
It is a doubt that is not vague, speculative or imaginary doubt, but such a doubt as would cause reasonable persons to hesitate to act in matters of serious importance to themselves.
A typical instruction explaining the civil standard is:
“When I use the expression “by a preponderance of the evidence”, I mean that you must be persuaded from a consideration of all the evidence in the case that the issue in question is more probably true than not true.
Any findings of fact you must make must be based on probabilities, not possibilities.
It may not be based on guess, speculation or conjecture”.
- Deliberation and Verdict
Because jury deliberations are undertaken in secret and every jury is unique, little of a general nature can be said about what happens in deliberations.
In most civil cases, a “general verdict” stating the bare conclusion of the jury is rendered and there will be two choices, either “we find for the plaintiff and award damages of X $” or we find for the defendant.
In a criminal case, the form for a general verdict will allow the jury to check either guilty or not guilty on each of the charges tried.
4th part: post trial civil procedures: motions, judgment and appeals
- Post trial motions
The defense may take a motion after a verdict is rendered.
In civil cases, this is called a motion for “judgment notwithstanding the verdict” or “judgment NOV”.
However, a directed verdict or judgment NOV may be granted only if there is a “no legally sufficient evidentiary basis for a reasonable jury” to decide for the plaintiff.
The judge in a civil case may also “set aside” the verdict and grant new trial if it is “against the great weight of the evidence” or If liability is correct, but the verdict is grossly excessive or inadequate.
A party may also seek to set aside the verdict on the ground that the jury acted improperly during deliberations or trial.
This is called “impeaching a verdict”.
- Judgments
After the trial, a judgment is entered on the jury verdict, subject to any post trial motions.
There are several kinds of relief that may be granted in a judgment, such as money judgment or equitable relief.
The most common form of equitable relief is the injunction.
An injunction can be simple, such as an order to the defendant not to come onto the plaintiff’s property.
Other forms of equitable relief include “reformation” or “rescission” of a contract, and “specific performance”, which is an order requiring the breaching party to perform obligations required under the contract.
Judgments not only award relief.
They also settle claims, defenses, and issues that were in dispute between the parties.
- Appeals
- Appellate review
The scope of appellate review of trial court judgments depends on two factors: whether the issue reviewed is one of fact or one of law and, if one of fact, whether the fact finder was a judge or a jury.
An appellate court can review issues of law de novo and will reverse any non-harmless error, but it is much more limited in its review of the factual basis for a trial court judgment.
When a trial judge sits as the fact-finder in a bench trial, the judge’s findings of fact will be reversed only if they are “clearly erroneous”.
Review of jury verdicts is even more limited: the verdict of the jury can be reversed only if there is a complete absence of any substantial credible evidence to support it.
Simple disagreement with the verdict is not sufficient.
In determining the sufficiency of the evidence, the appellate court must be careful to substitute its view for that of the jury.
This would be a violation of the fundamental right to a trial by jury.
- Appellate court procedure
The issues of law raised on appeal are argued principally through the exchange of written briefs between the parties.
Some limited oral argument before the court is permitted.
The maximum time for oral argument permitted for each side is usually 15 or 30 minutes.
An appellate court decides a case by issuing an order or judgment indicating who wins and, usually the opinion of the court setting out the reasons for the decision.
There are various actions that an appellate court can take:
- It can affirm the judgment of the trial court, meaning that it approves of it.
- When an appellate court sends an appealed case back to the trial court for further action, the case is said to be remanded.
- It can reverse that judgment and direct entry of judgment for the opposing side.
A final trial court judgment deciding the case on the merits or dismissing it is usually the only kind of judgment or order that can be appealed.
5th part: post trial criminal procedures: sentencing and appeals
- Sentencing procedures
Upon the defendant pleading guilty or being found guilty after a trial, the next step is to determine what punishment is appropriate to impose a sentence.
The judge will set a separate date for sentencing and order the preparation of a “pre-sentence report”.
This report is prepared by an agency attached to the court generally the “probation department”.
The report addresses the defendant’s background as it relates to factors relevant to sentencing.
On the date set for sentencing, the defendant appears once more before the judge and has the right to address the judge personally or through defense counsel on the question of sentence.
In serious cases, the judge may hear witness testimony or statements.
A very broad range of sentences is available to courts, from fines or community services to capital punishment in the state which have death penalty statutes or at the federal level.
- Appellate review of convictions
Defendants convicted in a state trial court generally have a statutory right to one appeal, usually to the intermediate appellate court of the state.
The defense sometimes files a motion for a new trial which may be granted if new evidence is brought to the judge’s attention.
If the state’s intermediate appellate court affirms the conviction, they have the right to petition for leave (permission) to appeal to the state supreme court.
Defendants may also file a petition for certiorari in the US Supreme Court in an effort to gain review of any federal issues raised.
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