Litigation Procedure and Practice

    I have covered a wide array of legal principles, and I frequently discuss litigation and contract disputes. However, there are many people (and not a few readers) who view the legal system as impenetrable, complicated, and mysterious. That’s why lawyers exist and why they are paid so well—legal professionals are the gatekeepers to the Courts in many ways, and they exist to protect your interests.

    However, every person should at least know the basics of how the legal system works. You may decide to hire an electrician to rewire your house, but you shouldn’t need one to flip a light switch. I’m dedicating this post to answering the simplest questions and covering the basics of court procedure. I am keeping this strictly within U.S. law, so if you have questions concerning foreign process shoot me an e-mail and I may decide it cover it in a later post.

go site The Basics

go here     Who can sue?

    The simple answer is “anyone”, including corporations and organizations. Anyone who suffers personal or financial harm because of another can sue in civil court. However, to bring criminal charges against someone, a person or entity can only press charges through the state. We’ll go into more of that below.

source     Statutes and Common Law

    This discussion typically devolves into a history discussion concerning the Norman Invasion of England, the establishment of Courts, and how the Common Law came to exist in the U.S. I’m going to ignore all of that for the time being. Simply stated, statutes are laws drafted by the legislative branch. The Copyright Act is an example of a statute. Common laws are causes of action (typically civil) that are not statutory, but are instead established through judicial precedent (previous court decisions based on public policy and the interest of justice). Much of the common law has become statutory, though by no means all. Tort law in particular frequently relies on common law.

    The Difference between Crimes and Torts     Generally speaking, there are two types of cases Courts look at: Civil (Tort) and Criminal. There are therefore two separate courts to handle these matters. Criminal Courts hear criminal cases, and Civil Courts hear tort cases.


    Crimes are brought by the state or government against an individual or entity, and the laws governing crimes are spelled out in state and federal penal and criminal codes. In the U.S., due process requires that all crimes be clearly spelled out by the legislature—common law crimes that are not codified are considered unconstitutional.

    There are several players in a criminal proceeding. The prosecutor represents the State. A defense attorney represents the Defendant. Under the U.S. Constitution, a Grand Jury must determine whether the prosecutor has probable cause to indict a defendant before charges can be formally brought. This is not the same jury that will hear the case should it go to trial. If the Grand Jury indicts the defendant, the defendant is charged with the crime. If no plea agreement is reached, each side presents their evidence. If the prosecutor convinces the jury beyond a reasonable doubt that the defendant committed the crime, the defendant will be found guilty. Otherwise, the defendant is released.

    If a defendant is found guilty, the trial isn’t over. There is still sentencing. At this stage, the Court will examine all of the mitigating and aggravating circumstances surrounding the crime and make a determination. Sentences could be nothing more than a fine, or could be as harsh as the max prison sentence allowable under the statute. In many states, the death penalty is still alive and well for capital offenses (typically first degree murder, aggravated felony murder, and the like).


    Torts are causes of action brought by individuals or entities against other individuals or entities, and they may be based on statutes or the common law. Frequently the common law applies. In some cases, a tort may be spelled out in a statute but its interpretation is governed by common law principles. As a result, tort law tends to be a bit more flexible as far as interpretation by the Courts—criminal laws must almost always be narrowly construed.

    This is at least in part because the penalties don’t involve another person’s freedom. Only the states can interfere with personal liberty. However, everyone is free to lawfully interfere with the wallets of another. As a result, civil cases are all about the money. Any case brought before the civil court will at some point come down to money—even injunctions (a court order preventing certain conduct) and declaratory judgments (an order stating that the law rules in one party’s or another’s favor) involve economic interference, undermining competition, or preventing infringement that hurts the bottom line.

     Contract disputes are also civil actions, but contracts are typically governed by general contract principles and the terms of the contract itself instead of by statute or common law (with the exception of Sales agreements, which are traditionally governed by the Uniform Commercial Code). Many contract disputes include various tort causes of action like unfair competition and interference with economic advantage.

    The players in a civil proceeding differ from the players in a criminal proceeding. The person who first files the complaint is called the Plaintiff. The person who the complaint is filed against is the Defendant. If it’s a small claim, the parties may represent themselves. If it’s a big claim, both parties typically need attorneys.

    Once a complaint is filed by the plaintiff, the defendant must respond within a proscribed period of time (anywhere from 10-30 days, depending on the jurisdiction and local rules). Failure to respond will result in a “default” or “default judgment”, which means the plaintiff can get a lien on your property or a garnishment of your wages to pay for the judgment (typically the entire amount demanded by the plaintiff). This is why ignoring a complaint or service of process is dangerous.

    The response is called the “Answer.” The answer can assert any affirmative defenses, denials, or confessions the defendant wants to rely upon at trial. The defendant may also file a cross-complaint, which means the defendant is asserting claims against the plaintiff. At this point discovery commences. Both parties seek to learn as much from the other party and third parties to strengthen their position. After discovery, many jurisdictions require some form of Alternative Dispute Resolution—i.e., California requires Settlement Conferences prior to trial. A settlement occurs when one party agrees to drop the claims against the other party in exchange for money or some other thing of value (a promise to cease certain activity that is damaging to the other party, for example). If no settlement is reached, the case goes to trial. If the case goes to trial, things get tricky—if there’s a cross-complaint, a judge or jury could find BOTH parties guilty and the entire case could be a wash.

     comprare vardenafil online garanzia Jurisdiction         Now that you know how each type of case works, you need to know where you can bring a case. In contract disputes, this is fairly simple—most contracts include a jurisdiction and choice of law provision. If yours doesn’t, include one. It will make things much easier in the long run.         A Tale of Two Courts go here     

    Most people know that there are three branches of government: Legislative, Executive, and Judiciary. The legislative branch drafts the laws, the executive branch enforces the laws, and the judiciary interprets the laws. Things get trickier when we break down the Judiciary into its various components.

            Federal Courts

    The Federal Courts are broken into a hierarchy of three: District Courts sit in every state, and frequently states have multiple District Courts. If a District Court case is appealed, the Court the case is heard by is called the “Circuit Court“. California sits in the 9th Circuit. If the Circuit Court decision is appealed, the Supreme Court may choose to grant “certiori”, or certification to hear the case. Most Supreme Court cases are discretionary—that is, the Court itself determines whether to hear it. The first appeal is typically mandatory (i.e., the Circuit Court can’t refuse to hear it unless it can validly assert that it lacks jurisdiction).

    What kind of cases do the Federal Courts hear? Because Federal power is (supposedly) limited by the Constitution, Federal Courts can only hear claims that arise under Federal Law—that is, Federal statutes and the United States Constitution. The only criminal cases the Federal Courts can hear are federal crimes or cases where the Defendant’s rights under the U.S. Constitution (typically due process) have been violated.

    Civil cases are trickier. Under the Federal Rules of Civil Procedure, Federal Courts may also hear “diversity” cases, which are cases between a plaintiff and a defendant sitting in different states. To get a case heard as a diversity action in a Federal Court, the dispute must be for an amount over $75,000 and typically ALL parties must be from different states.

            State Courts

    State Courts have broad jurisdiction. Simply put, a plaintiff can bring a suit in any State Court that can assert personal jurisdiction over the Defendant. As the jump indicates, the statement “simply put” is misleading. A Court can always get jurisdiction over its own citizens, so bringing an action in the Defendant’s home state will guarantee personal jurisdiction. Otherwise, determining whether a particular state can get jurisdiction will usually require a lawyer. Because criminal charges are brought by the state against a Defendant, the state bringing the charges has jurisdiction over the criminal proceeding.

    Bear in mind that multiple states can claim jurisdiction over a cause of action. Furthermore, both the Federal and State Governments may bring charges against a Defendant based on the same crime. This is called concurrent jurisdiction.

    State appeals processes vary, but most states have a method of mandatory appeal. This is not always the case, however. Some states only have a lower court and a highest court. Others have a lower court, a court of appeals, and a supreme (highest) court.


accutane attorney columbus Conclusion     These are some of the very, very bare bones principles concerning procedure within the judiciary. Bear in mind that none of this is conclusive, as laws can vary drastically from jurisdiction to jurisdiction. Furthermore, WHAT law applies is just as important as where a case is brought, and unfortunately choice of law issues are beyond the scope of this particular blog. Hopefully knowing the basics will help you ask the right questions.