CIVIL PROCEDURE II OUTLINE
I. THE STRUCTURE OF A LAWSUIT
1. Preliminaries
o Find a lawyer
i. Lawyer then looks at legal problems and the substantive law to figure out if there is a remedy to the legal problem.
2. Which Court? Territorial Jurisdiction, Subject Matter, Venue: a plaintiff can choose to file in state or federal court. Must always use the substantive law of the state. Where is the jury pool the most sympathetic? Is it too far to travel? Does the lawyer know the procedures of federal court?
o Territorial JurisdictionTerritorial jurisdiction requires a minimum level of contact between the defendant and the territorial sovereign (state) within which a court is located.
o Subject Matter Jurisdiction; Federal courts have subject matter jurisdiction over diversity and federal question.
o Venue: Generally venue is decided where a defendant resides if both defendants reside in the same state, or the district where a substantial part of the events or omissions giving rise to the suit occurred.
3. Drawing up the complaint, filing, and service of process:
o Complaint: plaintiff must lay out who he is, the defendant, claim of what happened to him, and what he wants the court to do.
i. Allegations: assertions in complaint.
ii. Pleading: content and the form of the complaint.
o Summons: containing the names of the parties and a notice to the defendants that they must come in and defend themselves.
4. Responding to the Complaint
o Preliminary Objections: defendant must object to jurisdiction in very first filing with court.
i. Motion to Quash: defendant wants to nullify the summons before filing any answer on the merits of the case. If motion to quash is granted, then it’s as if the defendant was never served at all.
ii. Motion: request for the court to take action by entering order or granting relief.
iii. Memorandum of Law: accompanies motion setting forth legal arguments supporting the request.
iv. Affidavits: accompanies motion, sworn written statements of fact given by competent witnesses.
o Default and Default Judgment: if defendant does not respond after being served complaint. Judge determines damages in ex parte hearing. D can overturn default judgment by showing that he was not properly served or the court did not have the jurisdiction to enter judgment.
o Pleading in Response to the Complaint:
d.
iii. Peremptory Challenge: one party just doesn’t look right, that party can challenge.
iv. Impaneled: jury has been selected.
o Opening Statement: what the case is about and what the plaintiff expects to prove.
o Plaintiff must present case in chief under direct examination (plaintiff) and cross examination (defendant). After plaintiff puts forth his case, he rests believing that he has proven enough.
o Directed Verdict: requests that the judge dismiss the plaintiff’s claims without submitting it to the jury, on the ground that Smith’s proof as a matter of law fails to make out the elements of a valid claim.
o Defendants then would proceed with their case in chief.
o Concluding Arguments and then the plaintiff returns a closing argument.
o Jury Deliberation:
i. Jury first selects a foreman.
General Verdict: jury simply states the name of the party for whom they find and the amount of damages he should recover.
