Binder on the Courts

BINDER ON THE COURTS

THE COURTS - Court Structure & Jurisdiction

A. Federal Courts

The trial court (US District Court) has jurisdiction over

- Federal Constitutional matters

- Violation of federal statutes

- civil matters in excess of $75,000 AND Diversity of Citizenship (all parties are from different states)

The losing party at trial (Appellant) has a right to appeal to the US Court of Appeals (GA is in the 11th Circuit). If s/he loses again, the US Supreme Court can take the case by granting certiorari (4 out of 9 judges vote to take the case).

How a federal case number is written - - 1:96-cv-02587-CAM

- 1 refers to the area of the case (the Atlanta area)

- 96 refers to the year of the case

- cv or cr tell us whether it's a civil or criminal case

- 02587 tells us it was the 2,587th case filed in that court in 1996

CAM stands for the judge's initials.

What needs to be filed with a Complaint filed in federal court:

1. Complaint - an original and one copy gets filed with the court. In addition, we need to have a copy for our law firm's file and for each defendant we will be serving (the Complaints will be stamped with the case # by the clerk).

2. Summons - a separate summons for each defendant. The clerk then stamps each summons and gives them back to us. Each summons is attached to the complaint and served on each defendant.

3. Civil Cover Sheet (also known as a Civil Initiation Form) - only one is prepared and given to the clerk - it explains what type of civil case you are filing

4. A Mandatory Disclosure Form. According to the "Local Rules" of the Northern District of GA, a plaintiff must answer several questions about the case, and attach the responses to each Complaint.

B. State Courts - Georgia

We have many trial courts, including Magistrate's Court (matters under $15,000), Probate Court, Juvenile Court, Superior Court, and State Court.

Superior Court has exclusive jurisdiction (i.e.. can only file matters here, as opposed to State Court) over: Felonies, Title to Land issues, Equity cases (declaratory actions, injunctions, specific performance), and Divorce. Note that Fulton County has an experimental Family Court - other counties may follow this lead one day.

State Courts were set up in populous counties to handle overflow of the Superior Courts. It has concurrent jurisdiction with Superior Court for cases in excess of $15,000. Misdemeanors are also prosecuted here.

An appeal goes to the GA Court of Appeals and then to the GA Supreme Court. If a case bears on constitutional issues, it can appealed to the US Supreme Court (remember a certain appeal in FL concerning an appeal from the FL Supreme Court to the US Supreme Court? :)

How case #'s are written in Clayton County Superior Court:

Criminal: 1998-CR-01548-4 (note: year is written in 4-digit numbers, e.g., 2002)
Civil: 1998-CV-01221-4

(Domestic Relations cases are abbreviated "DR")
(Child Support cases are abbreviated "CS")

What does the "4" in the above case #'s stand for? Answer: The judge assigned to the case (randomly) by the clerk's office.

In State Court, judges are assigned a letter instead of a number (e.g., a, b, c, etc.)

Form used when a lawsuit is filed - Case Initiation Form
Form used when lawsuit is finished - Case Disposition Form

WHAT IS A CAUSE OF ACTION?

A cause of action is a specific legal theory or civil remedy sought by a plaintiff in a COMPLAINT.

Some remedies do not seek monetary damages (specific performance, injunction - asking a judge to compel someone to do something, or refrain from doing something, respectively) while others do provide for monetary relief (negligence).

Each cause of action has ELEMENTS which plaintiff must prove at trial. For negligence, e.g., a topic we'll discuss at length this semester, plaintiff must prove:

1. The existence of a duty owed by the defendant to the plaintiff

2. A breach of that duty

3. The breach "proximately caused"...

4. damages

JURISDICTION

Subject matter Jurisdiction deals with the "topic" of a case - e.g. a case worth $25,000 or a case seeking an injunction

Personal Jurisdiction looks to whether a court can drag a defendant into a state. For the purposes of jurisdiction, we look to where the defendant, not the plaintiff, is domiciled. If a defendant is out-of-state, we look to see if the GA long arm statute can be used.

Venue - once it is determined that a defendant is subject to personal jurisdiction, we look to what neighborhood, or county, or venue we can bring that person in to - Fulton? Clayton?

Prior to heading to trial (an event we like to avoid - settlement is usually the way to go), an attorney goes through many phases of preparation in conjunction with the client:

1. Factual investigation and Pleading preparation

2. Discovery

3. Settlement discussion

4. Trial preparation

THE DISCOVERY PROCESS

DISCOVERY - in a civil case, anything that could LEAD TO reliable, relevant evidence (which is not privileged) is discoverable (that's pretty broad).

Common discovery methods: Depos, Interrogatories, Requests for Documents, Requests for Admissions, Request to Examine (Mental and Physical, when those items are at issues -- such as a personal injury case)

We may also discover what experts the other side may call, as well as that expert's opinion through discovery.

Your attorney and paralegals write discovery requests and go to opposing counsel's office to inspect relevant documents. How do they know what to photocopy? They'll usually make 3 piles:

1. the yes pile, produce these documents

2. no, don't produce to us

3. the "I have no clue" pile, thus we'll take them (we'll figure out if we need them at a later date)

If your company is in the middle of litigation, your firm may be asked to comply with a document request. Give your attorney EVERYTHING relevant. S/he will sift through these documents, looking for items protected by the attorney-client privilege, as well as which items need to be produced.

S/he looks on the back of every document -- it may have some important notations contained thereon. In addition, just because you have two copies of a document, you should still give the attorney both documents -- the other side is entitled to ALL copies of the same document.

For example, what if an important element of their case rests upon whether someone actually received notice of something and you come across an internal memo addressed to this person on the subject. If you find a document with a little check mark next to his name, that might be evidence that the person actually received it. WE'RE THAT DETAIL ORIENTED!!!!!!

If we're sending discovery requests to a corporation seeking documents, usually the "records custodian" is the person we'll direct the request to. Remember, when the other side is represented by an attorney, we send all requests to the attorney.

If we need something from a non-party, we need to subpoena the items -- if we need to take a deposition -- if that person is outside our jurisdiction, we'll need to fly there to take the deposition. We might also ask that person to bring documents to the deposition -- that's called a subpoena duces tecum.

If your deposition is being taken, here are some possible objections to discovery that your attorney may raise:

- privilege (usually attorney-client)

- work product - research and strategies of your attorney are not discoverable by the other side

- overbroad question

- vague/ambiguous question

- irrelevant question

- harassing/burdensome question

- compound question

NOT A VALID OBJECTION - that such a request would be inadmissible at trial.

What if opposing counsel objects to our discovery or fails to respond to our discovery? We'd file a Motion to Compel Discovery and leave it up to the judge.

What if the other side objects and refuses to produce a document based on a privilege? We can ask the judge to conduct an IN CAMERA (in chambers, outside our view) proceeding, where s/he looks at the document and decides if we can see the document. If we can see only a portion, s/he will instruct opposing counsel to REDACT the document -- take out the privileged part and show us the rest.

What if opposing counsel feels that we asked for something unreasonable in discovery (such as scheduling our out-of-town plaintiff/client for a deposition in Atlanta on one day notice) - We'd file a Motion for Protective Order, to ask the judge for protection from complying with an unreasonable discovery request.

What if opposing counsel never responds to our discovery? Aside from compelling discovery, we could ask the court for sanctions (especially if a party doesn't comply with a court order), which could range from the cost of filing and arguing the motion to the most drastic sanction -- striking the pleadings (Complaint/Answer) of the offending party (thus that party would lose the case). In federal court, Rule 11 of the federal rules of civil procedure details the sanctions in federal court.

Note in 9-11-37 - that the court can impose fines against an attorney who abuses the discovery process. Ouch.

SETTLEMENT

Prior to going to trial though, a plaintiff's attorney will often prepare a SETTLEMENT BROCHURE -- a packet of information about liability and damages, as a way to convince an insurance company to settle before trial. Also, based on the severity of the injury and attendant expenses, plaintiff's attorneys will prepare a DAY IN THE LIFE video of the plaintiff -- this is a prelude to what the jury will see at trial -- an effective way to force a settlement.

INTRODUCTION OF DOCUMENTS AT TRIAL

In order for an exhibit to be used at trial, it must be AUTHENTIC and RELEVANT.

Some exhibits are actual evidence (the "smoking gun memo") and some are to demonstrate something (demonstrative evidence -- such as a chart for an expert).

To show that a document is authentic, we must introduce it at trial through the use of a witness. That person must answer certain questions to ascertain whether the document is authentic. If it's a memo, then putting the person on the stand who wrote it would be an easy way to authenticate the document -- Did you write this memo? Is that your signature?, etc.

But what if that person is longer around? Oftentimes we'll call to the stand a company's RECORDS CUSTODIAN - someone who can testify that:

- this is a document written in the regular course of business

- that this document has been kept in corporate files and a chain of custody has been maintained to ensure that the document has not been tampered with.

Why is this important?? Because of the HEARSAY RULE -- if someone else is testifying about the truthfulness of a document, the court needs to be careful that the document has some safeguards. Many statements or things are "hearsay" -- but there are several exceptions to the hearsay doctrine --- this is one of them -- the BUSINESS RECORDS EXCEPTION. The line of questioning goes like this:

What are your duties at XYZ, Inc.? One of my duties is to maintain the files of the company.

Do you recognize this document? Yes, it was written by a former employee of the company.

Is it a document kept in the regular course of business? Yes, it is a memo from one executive to another.

What is the chain of custody of this document? A photocopy of the document is kept in a monthly file folder; it was found after your discovery request was made in a folder marked Feb 1996.

And what is the date of the memo I am showing you? Feb 15, 1996

Do you know where the original memo is? No.

Have you made a diligent effort to locate this document? Yes. THIS LINE OF QUESTIONING IS IMPORTANT BECAUSE OF THE BEST EVIDENCE DOCTRINE, WHICH SAYS THE COURT PREFERS THE ORIGINAL OF A DOCUMENT. IF WE CAN SHOW, THOUGH, THAT A PHOTOCOPY IS RELIABLE IN THE ABSENCE OF AN ORIGINAL, WE'LL USUALLY BE FINE.

These questions LAY THE FOUNDATION to introduce a document:

Your honor, at this time I'd like to label the document as Plaintiff's exhibit 15.

The process -- the clerk of the court marks it; the lawyer shows it to opposing counsel and asks questions about the document to the witness; then, the attorney asks the court to "move it into evidence (opposing counsel can object to all or a portion of the document*); if there are no objections, the document becomes part of the evidence and can be used by the jury as evidence.

*if the judge feels that a portion of the document is prejudicial or not relevant, the other portion can still come into evidence, by blocking out the bad part -- this is called REDACTING or EXPUNGING evidence (mentioned above).

MISCELLANEOUS

What is a certified copy ? (at the clerk's office) - it's a photocopy of a court document (such as a judgment), with the clerk's seal on it - we need this to verify that it is a true copy. We'll use this, for example, to "domesticate a judgment" -- recording a judgment from one jurisdiction in another jurisdiction's public records office.

What is a pro se litigant ? (someone proceeding in a lawsuit without an attorney)

What is an "in forma pauperis" affidavit? (an affidavit asking the court to waive the filing fee due to lack of funds)

What is the filing fee for a federal complaint? ($150)

PRO HAC VICE ADMISSION - when an attorney from another state wants to appear in a GA court, s/he must file this with the court.

Note: The information on this web site is for classroom purposes only and is not offered as legal advice. Consult an attorney in your state for legal questions on this information.