Civil Procedure
Articles Blog

Civil Procedure

November 24, 2019


Civil Procedure. Civil Procedure deals
what what we with what we call “procedural law” or the how of the law, as
opposed to “substantive law” which deals with the what of the law. So let’s take a
look. Procedural law deals with, “Well, how do I
go about getting compensated for a breach of contract?” “How do I file my
lawsuit?” “How do I contest the will?” “How do I go about getting an injunction against
somebody if I need an injunction?” Now that’s all examples of procedural law.
Substantive law would would deal with things like, well, “What is a contract?” “What is a breach?” “What sort of damages can I get?” “What are
the requirements for a will to make it properly executed?” “What is an injunction,
and who’s entitled to it, and when?’ That’s substantive law. Procedural law, civil
procedure is what we call procedural law. And so that’s what we’re
talking about today. Let’s look at some basic terms.
“Jurisdiction.” Jurisdiction is the power of a court to decide a case. And
jurisdiction is broken down into several different aspects. The first of these is,
is there’s a there’s a “geographical” aspect of jurisdiction, that a court
would only have power over things that happen within its geographical area. The
next one is “personal jurisdiction.” A court only has jurisdiction over people
who appear before it or who are subject to its control. And so it’s generally
thought that a court has jurisdiction over people who reside in that area. But
what about a non-resident who is sued? You know, it’s not a problem if the
non-resident comes into the court to file a lawsuit against a resident,
because non-resident has subjected themselves to the jurisdiction of the
court. But what about a plaintiff suing a non-resident?
Well, sometimes that is allowed and and, that’s where we have things called “long
arm statutes,” laws that say when a non-resident is subject to the
jurisdiction of a court. And then of course we have “subject matter
jurisdiction.” And subject matter jurisdiction deals with the concept that
not all courts can hear all kinds of lawsuits. Certain kinds of courts can
only hear small matters dealing with small amounts in controversy. Some
matters can only be heard by some courts, like death penalty cases can only be
heard by more superior courts, or or what they may be called district courts. And
the an eviction case in many jurisdictions can only be heard by a
lower court, like in Texas by a justice of the peace or justice court. Then we
also have this concept of “venue.” Venue is simply place. Where is the lawsuit filed?
You may have a district court, district courts in different parts of
the state that can have jurisdiction over a type of the lawsuit, but there may
be just one place where it really should be filed. And of course, if there is bias
in that place someone may ask for a “change of venue” to another court that
does have jurisdiction, but just in another place. And then of course,
“adversary system.” And that’s getting at the concept of of what our system is all
about. It’s a system in which adversaries, a plaintiff and the defendant, go to a
neutral forum presided over by a judge to fight over, in a civil way, their
dispute, to try to have the the dispute decided in in their favor. And the idea
is that if both the plaintiff and the defendant put on their strongest case,
then out of that will come the truth, a resolution. Now as we do that, though, we
have to follow rules of procedure. And in Texas we have something called the TRCP,
the Texas Rules of Civil Procedure, and there’s a counterpart called the Federal
Rules of Civil Procedure. And then when it comes time to presenting evidence to
the court, that’s how we present our case, well, we have rules there too. And in Texas
we have the Texas Rules of Evidence and then there’s the counterpart, the federal
counterpart, the Federal Rules of Evidence. And these rules of evidence
deal with things such as, well, what is admissible? What what is admissible
evidence? What is this notion of “hearsay?” We always hear about hearsay evidence.
What is hearsay? What is “privilege?” What does it take to
authenticate a piece of evidence to show that it is reliable and that we can use
it in court?” We also have the term called “pleadings.”
Pleadings. The plaintiff files a pleading called a “complaint,” or in Texas we call
it a “petition,” and it’s filed by the plaintiff. It describes the cause of
action, and which is another word for the lawsuit, or the type of claim that we
have. The defendant will file an “answer” to explain the defendant’s point of view.
it’s filed by the defendant to contest the lawsuit. It sets out the facts that
the defendant disputes, and if the defendant has any “affirmative defenses
the defendant will point those out. An affirmative defense is kind of like a
trump card in the card game it’s a defense that will trump or defeat
anything that the plaintiff says in their case. And if the
defendant does not file his answer or her answer within the stated time, then
they’re going to be losing the lawsuit in what we call a default. How does the
defendant learn about the lawsuit? Well, that’s what we call “service of process.” That’s
the legal notice that’s delivered to the defendant, and delivered by a
constable, or a sheriff, or a private process server, or maybe even in the
federal courts and the federal system it may even be served by a federal marshal. Let’s look at a timeline now of a
lawsuit. I’ve put up here, we have an event, which could be the the breach of
contract or an accident, followed by the plaintiff files the petition in court. The
petition is served on the defendant giving them notice, and then the
defendant needs to file his answer. Following that we have this period
called “discovery.” Discovery. And that’s where both parties, through their lawyers
if they have lawyers, gather evidence in preparation for trial. And you can
request evidence from the other side. But this period of discovery takes up most
of the timeline of a lawsuit. How do we gather this evidence? Well we
take “depositions.” A deposition is a questioning of a witness under oath, in
front of a court reporter. The lawyers are present, and ask those questions.
We also have “interrogatories” where the lawyers will send to each other, or to
their clients, opposing client in the case, questions. And these questions,
these are written questions that have to be answered under oath. And they only go
to a party. A party has to answer answer those under oath. We can also ask a party,
an opposing party, to turn over certain documents and things. You know, credit
card bills, contracts, correspondence, letters. I even had the opposing
party turn over a shotgun one time that I wanted to have that have examined. So
we can have “requests for productions and things.” That’s very helpful in developing
our case. Then we have “requests for admission.” And that’s where a party will
ask the other side to either admit or deny that certain facts do exist. And
when you do that, that does have a tendency to to narrow and maybe shorten
the case a little bit then, and what has to actually be put on trial. Now during the the during the trial,
during the case, during that time line, from time to time, one party or
the other, or maybe both parties, will be asking the court for certain decisions,
certain guidelines, guidance for the conduct of the discovery, maybe to
asking the court to, “Judge this is a worthless case, pointless case. It’s
frivolous. Please dismiss it. Here’s my evidence to show that there is no
evidence on the other side.” Or they may be asking the court to step in and help
with the scheduling of depositions or other events. So there’ll be motions and
orders that the parties will file from time to time. The “motion” is where the
party requests what they want of the court, the relief, and the “order” is a
document that the court signs either granting or denying the relief. Sometimes
the court will have a hearing, sometimes they won’t. And finally let’s put all this together
now. We have our event. The plaintiff files the petition.
Defendant is served. Defendant files an answer. And then we have this period of
discovery. Finally, at the end of this period of discovery, the court is going to
say okay lawyers, clients, come on in and let’s
have a pre-trial conference and plan this trial out. So that’s a pre-trial
conference, and that happens right before you go to the trial. Then you do have a
trial. Trial could last just anywhere from just mere minutes, I’ve had that
happen, to weeks and maybe even months. Y’all have seen that on TV. And then after the
trial a decision is made. And then we have a judgment, and then appeal. Let’s
look at the trial a little bit more carefully now. Trial starts, if it’s a
jury trial, with something we call voir dire or that’s what we call it in
Texas. Other lawyers from other states pronounce it voir dire or something like
that, but its jury selection. And then after jury selection we have
the plaintiff putting on the plaintiff’s case, with their opening statement, and
then after the opening statement calling their witnesses for direct examination
by their own lawyer. And then the other parties in the case can cross-examine
each of those witnesses. Once the plaintiff has put on all of their
witnesses and evidence in that way then it’s the defendant’s
turn. And then the defendant can make an opening statement if they already didn’t
make one over here. And then the defendant calls their witnesses, one by
one, for direct examination and then cross-examination by the plaintiff. And
then at some point the defendant will rest just as the plaintiff had rested
earlier. There may or may not be something I didn’t put on the chart here
called “rebuttal evidence” where the plaintiff can come back and rebut some
things that maybe the defendant may have put on in evidence. And then once all
that evidence is in, then it goes to the jury. The judge has to give the jury
instructions. And then at some point there’ll be a final argument
by the the lawyers on what they had presented to the jury earlier, trying to
help the jury make some sense of all of this evidence. And then the jury goes
back and deliberates. And after they deliberate, hopefully they come back with
a “verdict,” a decision. And the judge will take that decision and instruct the
lawyers what that verdict means, and turn that verdict into a “judgement.” And
typically the winning lawyer drafts the judgment. And the judgment is the last
document filed in the case, typically, and that ends the case, and it says who wins and
who loses. So you begin the case with the petition, or complaint depending on your
system you’re in, and you end the case with the judgment. And then of course
there can be appeal after that. And that is an overview of Civil Procedure.

Only registered users can comment.

  1. Many thanks for David. Plain and concise words! It is pretty understanding for me, a man with English as a second language. I finnally figure out the proper meaning of Motion. Very helpful. Looking forward to more posts from your channel.

  2. You are amazing! Keep up with your videos, it is very helpful for Students from other countries, like me, to understand your system!

  3. As a layperson filing a civil suit, the information you provide here is immensely helpful to inform my understanding of essential vocabulary and the proper steps and sequence I can expect with my case. Many, many thanks.

  4. I am a freshman in high school taking a intro to law course. This video has been very helpful, I look forward to using your videos the rest of the school year ! Thank you !

Leave a Reply

Your email address will not be published. Required fields are marked *