Civil Procedures

Class One

Going to follow the phases of a lawsuit.

I. Pre-complaint Filing

II. Post complain - Discovery

III. Trial, Judgement and Collection

Rule 1 Scope of Rule

• Scope

• Effect

• Construction

All Alabama Civil Suits

Rule 2 One form of action.

Both Law and Equity - Not Criminal

Rule 3 Commencement of Action

Commencement is when Complaint when filed with Court.

Jurisdiction when served.

Review

Difference between Capacity and Competency.

¶ Plaintiff One who sues } BOTH ARE PARTIES

∆ Defendant One who be sued }

Subrogation - someone or entity who pays the damages of a person who then owns the lawsuit. Steps into the shoes of the injured.

Review

Someone else can sue you such as the insurance company coming after you.

Rule 4 Do No Harm

Rules 17 to 25 Parties to a Lawsuit

Plaintiff or Defendant Both Have to be Named

Review

Your duty to do something is not much but if you do something than can fall into tort.

Rule 17 Parties, Plaintiffs and Defendant; Capacity

• Real party in interest

• Capacity to sue or be sued

• Infants or incompetent persons

• Guardian ad limem; how chosen

Capacity – Legal right to sue or be sued. In this state you must be 19 years old and a resident.

Competency – Having the mental capacity to sue or be sued

Review

Difference between Capacity and Competency.

Fiduciary A higher level of duty imposed on someone and is representing the needs of another (Minor). Could be adult guardian

Guardian ad limen Person appointed to represent someone who does not have the mental ability to represent his/her self.

Rule 18 Joinder of claims and remedies

• Joinder of claims

• Joinder of remedies; Fraudulent conveyances

• Liability of insurance coverage

Rule 19 Joinder of persons needed for just adjudication

• Persons to be joined if feasible

• Determination by court whenever joinder not feasible

• Pleading reasons for non joinder

• Exception of class actions

Rule 20 Permissive joinder of parties

• Permissive joinder

• Separate trials

Bring people into a lawsuit

Rule 21 Misjoinder and non-joinder of parties

Rule 22 Interpleader

• Plaintiff or defendant

• Release from liability; deposit or delivery

A suit where the plaintiff sue himself asks the court to distribute the remedy/money.

Review

Somebody knows they owe somebody but not sure. So they go to Probate Court and sue themselves and plead guilty. Let the Court decide where the money should go.

n. the procedure when two parties are involved in a lawsuit over the right to collect a debt from a third party, who admits the money is owed but does not know which person to pay. The debtor deposits the funds with the court ("interpleads"), asks the court to dismiss him/her/it from the lawsuit and lets the claimants fight over it in court.

Rule 23 Class actions

• Prerequisites to a class action

• Class action maintainable

• Determination by order whether class action to be maintained; notice Judgement; actions conducted partially as class actions

• Orders in conduct of actions

• Dismissal or compromise

To many Plaintiffs to represent all of them at one time.

Judge must approve the class action status.

Requesting party must show need for class action.

Rule 24 Intervention

• Intervention of right

• Permissive intervention

• Procedure

Rule 25 Substitution of parties

• Death

• Incompetency

• Transfer of interest

• Public officers; death or separation from office

What happens is your client dies

Contract right always survives your death

Tort claims that are filed prior to death survives the death

Six months to substitute a representative of the deceased.

Less that $500 does not require a written contract

Parties to a Lawsuit

Rule 17 - 25

Subrogation

Insurance Company

Class Two

Rule 7 Pleadings allowed; form of motions

Pleadings

Motions and other papers

Pleading – a written demand or denial from one person or entity to another person of entity

Motion – A written request by a person or entity to the Court asking or demanding that the court do or rule on something.

Name Three Types of Pleading

1) A complaint Only or 2) An answer Only or a

derivative thereof i.e.,

3) cross complaint 4) answer to a cross complaint
5) counter complaint 6) answer to a counter complaint

Rule 8 General rules of pleading

• Claims for Relief (Complaint)

• Defenses; form of denials (Answer)

• Affirmative defenses

• Effect of failure to deny

Rule 8 is the “on or about” statement.

Rule 8(c) Affirmative Defenses

If you have an affirmative defense it must be stated in your answer or you might lose the right to do so.

Accord and Satisfaction – Agreement to accept a settlement. Example: Cash the check.

Arbitration – Non Judicial Ruling

Assumption of Risk – Bungy jumping

Contributory Negligence – Plaintiff caused part of the injury by his/her own negligence. In this state, and one other, they are barred from any claim. All other state use comparative negligence which uses a ratio rule.

Bankruptcy – Court discharged debt

Duress – Gun to the head

Failure of consideration – No money or not enough money changed hands.

Fraud – A misrepresentation

Res judicata – Already judged

Statue of frauds – Was not in writing. (Typical case of using a word completely outside of its usual meaning.)

Statue of limitation – Time ran out

Rule 9 Pleading special matters

• Capacity

• Fraud, mistake, condition of mind

• Conditions precedent

• Official document or act, ordinance or special statute

• Judgement

• Time and place

• Special damages

• Fictitious parties

Special Pleadings

Condition precedent – A condition or event that must happen before there is any duty to pay or perform. Example: Paying premium to insurance company.

Fictitious parties – you do not have to know all the names of the defendants in order to sue them. You can add them later to your suit once you find out who they are.

Rule 10 Form of pleadings

• Caption, names of parties

• Paragraphs, separate statement

• Adoption by reference; exhibits

Caption – The heading of a motion, pleading or document.

Allegation – unproven facts

Stipulation – agreed to facts.

Venue – Proper place to file the lawsuit. Used a divorce case as example.

Jurisdiction – Level of the Courts authority i.e., Circuit, District, Small Claims, Appellate

In the

Circuit Court

of County

CAPTION

Doe Jane }

Plaintiff }

vs } Civil Action CV01.2005

Smith, John }

Defendant }

Complaint

PREAMBLE

Now comes the Plaintiff, who by and through her attorney, makes the following demands and claims herein.

ON OR ABOUT

BIG PARAGRAPH

Count One: On or about xx, Date the Defendant

REFERENCE BACK TO COUNT ONE

Count Two: Every claim of the claim stated in count one is hereby incorporated into this count and in addition the plaintiff further states....

REFERENCE BACK TO COUNT ONE

Count Three: Same incorporated reference as in the above.

DEMAND

Being stated and claimed the Defendant hereby demands money plus......................

RULE 11 MUST BE SIGNED

Signed

Rule 11 Signing of pleadings, motions or other papers

Must be signed.

Rule 12 Motion for Judgement on the pleadings

• When presented

• How presented

• Motion for Judgement on the pleadings

• Motion for more definite statement

• Motion to strike

• Consolidation of defenses in motion

Defense

Defendant has 30 days to file an answer once served

If motion to dismiss is denied by the Court then 10 days to file an answer.

Burden of proof on the he person who has to prove the allegation

Trial de nova – A new trail without regard to evidence or error in real low low court (traffic court).

Rule 13 Compulsory and cross-claim

• Compulsory counterclaims

• Permissive counterclaims

• Counterclaim exceeding opposing claim

• Counterclaim again the state of Alabama

• Counterclaim maturing or acquired after pleading

• Omitted counterclaim

• Cross-claim against co-party

• Joinder of additional parties

• Separate trials; separate Judgements

• Appealed actions

Rule 14 Third-party practice

• When Defendant may bring in third party

• When Plaintiff may bring in third party

Rule 15 Amended and supplemental pleadings

• Amendments

• Amendments to conform to evidence

• Relation back of amendments

• Supplemental pleadings

Rule 16 Pre-trial procedure; formulating issues.

Case Analysis - Complain and Summons Construction.

Class Three

Rule 3 Commencement of Action - Review

Rule 4 Summons or other process

• Process; Methods of in-state service

• Process; Basis for and methods of out-of-state service

• Process; Service by publication

• Process; Basis for and methods of service in a foreign county

Service of Process

The difference being sued and serving. You sue defendant in defendants name. You serve Complaint on the Defendant.

“The Who”

Who Can Be Served

Individual - Deliver the summons in person

Infant - Serve the parent but name infant

Individual in Jail - Serve the individual. Give it to the superintendent

Incompetent Not Confirmed - Serve the person

Corporation or Partnership - An Agent of that Corporation or Partnership

In this state service of process is proper when served in person.

Summons Requirements

• Name of Parties

• Time to respond

• Penalty for No Response (you take a default Judgement)

Proper Service

• Alabama resident must be served in person if at all possible. Generally you can not mail it.

• Out-of-State Certified Mail

Process In State

• Sheriff or Deputy or someone greater than 18 years old and not a party to the action. Off- duty cops are often used.

4.2 Process – Out of State and Jurisdiction to Sue

• Defendant must have some minimum contact with the State to have jurisdiction

• Transacts business in the State

• Caused an injury in the State

• Owns land in the State

• Married in the State

• Sells insurance in the State.

Often called the Long Arm Statue. Aside: If they are lose the case you get an attorney in their state to file papers and domesticate the Judgement. Other states must give full faith to the laws of other states.

4.3 Service by Publication

• After all attempts fail and with court approval.

Example: The publication Alabama Messenger does this service and will send you a certification that it ran for two weeks and charge you $14.

Rule 5 Service and filing of pleadings and other papers

• Service When required

• Same; How made

• Same; Numerous defendants

• Filing

• Filing with the court defined

Service of Pleading after the complain

• Service by mail or deliver. Everything after the original pleading you can use the mail.

Rule 6 Time

• Computation

• Enlargement

• Omitted

• For Motions

• Additional time after service by mail

• The First Day does not count – Because you do not know if they had it for a full day or ½ day.

• 
  

• Last day does not court if it is a Saturday, Sunday or Holiday.

Ex parte Hearing when only one party is present. They other side can not defend themselves.

Case Analysis & Answer & Counterclaim

Construction

Evidence Lecture - Basic Concepts

Evidence Lecture

What is Admissible Evidence

• Trustworthy and Credible

• Related to the issue at hand

• Fair, if questionable. i.e., Does not unduly prejudice the other side.

Two important rights to our way of life as Americans.

• Trial by Jury of Peers

• Right to confront accuser, which is the 6^th Amendment

Evidence only comes from the witness.

Non-expert witness can only give actual sensory knowledge such as sight, sound smell, taste and such. They can not offer an opinion.

Expert witness can give opinion but only after they have been “approved” as an expert. Example: Have to establish they are an expert and then they can offer an opinion.

Hearsay Evidence

A third party statement by someone or something that cannot be cross examined or confronted violates the 6^th Amendment.

Hearsay Exceptions:

• Scientific Survey

• Dying Declarations

• Depositions of a former trial

• Adoptive admissions – Did not defend her/himself.

• Declaration against self interest.

What is meant by Appeal?

Court (Judge) makes an error letting in bad evidence

Lawyer Objects – Preserves the error for the record

If you then lose the trial then you appeal the error only and not a new (de novo) trial!

Motion in limine:

A pre-trial objection to stop anticipated testimony that might be damaging and and not allowed by rules of evidence. Avoids having the jury hear it since they will not ignore it even if it is struck from the record.

Examination of Witnesses

Direct – Can not lead. Can not be answered with a yes or no but must be open ended.

Cross – yes and no

Privileged Testimony that is not Admissible

• Wife/Husband

• Lawyer/Client

• Doctor/Patient

• Offers of compromise i.e., offers made after filed and served.

(Privileged testimony if done right).

Class 4

Rule 26 General provisions governing discovery

• Discovery methods

• Scope of discovery

• Protective orders

• Sequence and timing of discovery

• Supplementation of responses

Discovery Phase

Discovery – Period of time in a civil or criminal case where both parties seek to get as much information from the other side as they can.

Rule 26 (a) Discovery Methods

Depositions – can be oral or written sworn statements.

Written Interrogatories – send them a list of questions

Production of documents or things or permission to enter land or property

Physical or mental exams

Requests for Admissions (yes or no)

Rule 26 (b) Scope – How far can you go

Anything that is not WORK product or privileged is fair game. Work product is items that occur between attorney and client such as contingency (fee), strategic decisions such as which court or which witness' to used. Things produced by attorney and provided to client.

Anything to be used at trial is fair game

Expert Testimony if it is to be used at trial is fair game.(the other side can see it if it is used at trial but not if it is work product)

Insurance type, coverage and limits of policy is discoverable. (the shysters got the rule changed so they would know this stuff before taking a case)

Rule 26 (c) Protective Orders

You can prevent any discovery effort that is Exclusively aimed at:

Annoying

Embarrassing

Oppressing

Or results in an undue burden to the client

(this is prevent using discovery procedures to screw with somebody such as getting the sheriff to deliver a summons for deposition week after week)

Rule 26 (d) Sequence and timing of Discovery

Discovery can be in any sequence and is cumulative not exclusive

Stipulation – An agreed to allegation of fact.

Rule 27 Discovery before action or pending appeal

• Before action

• Pending appeal

• Perpetuation by action

Rule 27 Depositions

Deposition is a discovery meeting where each party asks questions of the other party.

Answers are sworn to and can/will be used to impeach inconsistent statements.

Impeachment – In the trial sense is when one side's attorney seeks to discredit a witness by using previous sworn statements.

Rule 28 Persons whom depositions may be taken

• Depositions taken within the United to be used in this state

• Depositions taken in foreign countries to be used in this state

• Deposition taken within this state to be used outside of this state

• Disqualification for interest

Rule 29 Stipulations regarding discovery

Case Analysis - Practical Discovery Issues

i.) Who discover what?

ii.) Process overview.

Iii.) Time Frames & Court Remedies for Failing to Produce.

Class Five

Rule 30 Deposition upon oral examination

• When depositions may be taken

• Notice of examination; general requirements; special notice; non- stenographic recordings; procurement of documents and things; deposition on organization

• Examination and cross-examination; record of examination; oath; objections

• Motion to terminate or limit examination

• Submission to witness; changes; signing

• Certification and filing by officer; exhibits; copies; notice of filing

• Failure to attend or to serve subpoena; expenses

Rule 30 Oral Depositions

A mini trial

Records Sworn Testimony

Used to contradict and impeach

Rule 31 Depositions upon written questions

• Serving questions; notice

• Officer to take responses and prepare record

• Notice of filing

Rule 31 Written Depositions

Same as Rule 30 above

Rule 32 Use of depositions in court proceedings

• Use of depositions

• Objections to admissibility

• Effect of taking or using deposition

• Effect or errors and irregularities in depositions

Rule 32 Use of Depositions

Can be used to impeach previously sworn testimony at any time.

Rule 33 Interrogatories

• Availability; procedures for use

• Scope; use at trial

• Option to produce business records

• Form of interrogatories and answers

Rule 33 Interrogatories

Can be issued after commencement of the action i.e., stapled to the complaint

30 days to answer if it is issued after the answer (after the filing). If it is not stapled to the compliant you have 30 days.

You have 45 days if served with the compliant.

Can be used at trial the same as depositions.

Rule 34 Production of documents and things and entry upon land for inspection and other purposes

• Scope

• Procedure

Rule 34 Production of documents and Inspect Land

Usually a 30 day notice in your motion

Rule 35 Physical and mental examination of persons

• Order for examination

• Report of examining physician

Rule 35

Only with Courts permission by Motion.

Party to be examined gets a free copy of doctor’s diagnosis.

Rule 36 Requests for admissions

• Request for admission

• Effect of admission

Rule 36 Request for Admissions

Same as in interrogatories except worded as “Admit” or “Deny”

Rule 37 Failure to make discovery; sanctions

• Motion for order compelling discovery

• Expenses on failure to admit

• Failure of party to attend at own deposition or serve answers to interrogatories or response to request for inspection

Rule 37 Motion to Compel

After 30 days passes and the other side has not answered interrogatories or other Discovery requests you can file a motion asking the Judge to force compliance with the request. The second time the opposition pays for your lawyer. The third time the opposition shyster gets a black mark in their record.

Rule 45 Subpoena

• For attendance of witness; forms; issuance

• For production of documentary evidence

• Service

• Subpoena for taking depositions; place of examination

• Subpoena for hearing or trial

• Contempt

Rule 45 Subpoena

Issued by clerk to compel someones presence and testimony. Easy to get. People need them to get time off from work.

Class Six

Discovery continues

Miscellaneous Trial Rules and Trial Practices

Rule 38 Jury trial of right

• Right preserved

• Demand

• Same; Specification of issues

• Waiver

Rule 38 Jury Trial of Right

Right to jury if provided by U.S. Constitution or state statute (not in this area of the country)

It is for matters of Law not Equity. Matters greater than $10.00 or criminal with a penalty greater than 6 months.

Trial by jury is not automatic. You must demand it in the Complaint or Answer.

Rule 47 Jurors

• Examination of jurors

• Selection of jurors and alternate jurors

• Multiple claims, parties and actions

Rule 47 Jurors

Voir Dire Process of Jury selection

You question perspective jurors to reveal bias.

Usually 12 jurors

Can be 6 jurors by stipulation

Voir Dire and striking a jury

One who demanded a jury gets the first strike.

1 2 3 4 5 6

7 8 9 10 11 12

13 14 15 16 17 18

19 20 21 22 23 24

Each side gets to strike 6 jurors.

1 Plaintiff = 6

2 Defendants = 3/3

Usually pick a couple of the struck jurors as alternate jurors.

Rule 51 Instructions to jury; objection

Rule 51 Instructions to Jury

After close of evidence / trial

A.P.J.I. Al's Pattern Jury Instruction

(if judge does not read your requested sections you can that as an appeal)

Filed by motion at close of evidence

Judgement Rules - Rules 54 - 63 and Examples

Rule 54 Judgements; costs

• Definition; form

• Judgement upon multiple claims or involving multiple parties

• Demand for Judgement

• Costs

Rule 54 (b) Judgement costs

The one who loses pays

Rule 55 Default

• Entry

• Judgement

• Setting aside default

• Plaintiffs, counter claimants, cross-claimants

• Proof required despite default in certain cases

Rule 55 Default Judgement

No show, Judgement against you will be entered. (The Judgement is filed in probate)

55 (c) Setting aside default Judgement

For any reason withing 30 days of Judgement (so a default is not worth much)

Rule 56 Summary Judgement

• For Claimant

• For defending party

• Motion and proceeding

• Case not fully adjudicated on motion

• Form of affidavits; further testimony; defense required

• When affidavits are unavailable

• Affidavits made in bad faith

Rule 56 Summary Judgement

Asking the Judge to dismiss the suit based on the pleadings.

Contrast against a 12 (b) motion to dismiss based on things outside of the pleadings.

Rule 60 Relief from Judgement or order

• Clerical mistakes

• Mistakes, inadvertence; excusable neglect; newly discovered evidence; fraud, etc.

Rule 60 Relief from Judgement

• Default – 30 days for any reason

• 
  

• Excusable Neglect – 4 months on showing to the Court your reason for judgement set aside.

• 
  

• Fraud on the Court – Within 3 years of the judgement

Class Seven

Post Judgement and Miscellaneous Rules

Rule 69 Writ of Execution

• Procedure

• Writ of Execution

• Service of Writ and notice

Rule 69 Writ of Execution

After your judgement is filed in Probate you can file a Rule 69 request for the sheriff to sell assets of the defendant on the Courthouse steps or seize property or bank accounts.

Questions, Critique and Close

Quiz

/

Henry Atchley